Legalese

Tuesday, 31 January 2012

The Case Of The Speluncean Explorers An Analytical

Study
The Case Of The Speluncean Explorers A Study
PROLOGUE
Professor L. Fuller was adept in explaining law through allegory. It is said that there is no
better way to study law than to read cases. There is no better way to study legal philosophy
than to see how various theories clash with each other. The Professor achieved all of these
objectives in the brilliantly imagined case that he invented The Case Of The Speluncean
Explorers.
Professor Lon L. Fuller's Case of the Speluncean Explorers is said to be the greatest
fictitious legal case of all time. That is saying a lot, for it has some stiff competition. While
its competitors may outdo it in courtroom drama, character development, or investigative
suspense, none matches it in legal depth or dialectical agility. It doesn't show what makes
some lawyer's caseload interesting, but what makes law itself interesting. [1] His story of Rex
is another interesting allegory[2] which speaks about the characteristics which a law
shouldnt have. The following statement by Fuller in his book Morality of Law outlines his
philosophy:
The only formula that might be called a definition of law offered in these writings is by now
thoroughlyfamiliar:lawistheenterpriseofsubjectinghumanconducttothegovernanceofrules.
Unlikemostmoderntheoriesoflaw,thisviewtreatslawasanactivityandregardsalegalsystemas
theproductofasustainedpurposiveeffort. [3]
ABOUT THE AUTHOR
Fuller (1902-78) is a representative of the school of legal thought known as purposive
jurisprudence[4]. This is a kind of jurisprudence which sees the activities of the courts as
reflecting the very purposes of the law, which turn upon the subjecting of the human
conduct to the control of rules. Law and morality are intertwined and, according to Fuller a
law which is completely divorced from morality, ceases to be law.

Fuller was an American, a Texan to be precise. He served as professor of Law at Harvard

University for many years, and is noted in American law for his contributions to the law of
contracts. His debate with H.L.A. Hart in theHarvard Law Review (Vol. 71) was of
significant importance for framing the modern conflict between legal positivism and natural
law. Fuller was an important influence on Ronald Dworkin, who was one of his students at
Harvard Law.[5] He is regarded as one of the greatest legal philosophers of the 20 th century.
He had a profound effect on American jurisprudence.
Fullers The Morality of Law, first published in 1964, is his most famous and, perhaps, his
most controversial work. At a time when legal positivism still dominated jurisprudence, the
suggestion that law and morality were not only connected but connected intimately was
such an affront to scientific thinking that it brought repeated charges of axe grinding from
one reviewer.[6]
CASE OF SPELUNCEAN EXPLORERS
This famous fictitious legal case was created by Lon L. Fuller in his article, "The Case of the
Speluncean Explorers," Harvard Law Review, vol. 62, no. 4 (1949) pp. 616-645. The case
tells the story of a group of spelunkers (cave-explorers) in the Commonwealth of Newgarth,
trapped in a cave by a landslide. As they approach the point of starvation, they make radio
contact with the rescue team. Engineers on the team estimate that the rescue will take
another 10 days. The men describe their physical condition to physicians at the rescue camp
and ask whether they can survive another 10 days without food. The physicians think this
very unlikely. Then the spelunkers ask whether they could survive another 10 days if they
killed and ate a member of their party. The physicians reluctantly answer that they would.
Finally, the men ask whether they ought to hold a lottery to determine whom to kill and eat.
No one at the rescue camp is willing to answer this question. The men turn off their radio,
and some time later hold a lottery, kill the loser, and eat him. When they are rescued, they
are prosecuted for murder, which in Newgarth carries a mandatory death penalty. Fuller
wrote five Supreme Court opinions on the case which explore the facts from the perspectives
of profoundly different legal principles.
The result was a focused and concrete illustration of the range of Anglo-American legal
philosophy at mid-century- THE SPELUNCEAN EXPLORERS CASE.
It is generally believed that Fullers case is based on two real cases, namely

U.S. v. Holmes (1842) and

Regina v. Dudley & Stephens (1884).

These two U.S cases can be called as life boat cases in which disaster at sea was followed by
homicide and prosecution. In the Holmes case, the homicides were to lighten a badly
overloaded lifeboat. In Dudley & Stephens, the homicide was to create a meal for the
starving survivors.[7]
One can easily see the uncanny similarities between the facts of these two cases and that of
Fuller. Fuller borrowed from these cases for his own: extremities of desperation, lotteries,
cannibalism, popular sympathy for the defendants, politically difficult prosecutions,
defenses of stark necessity, jury convictions, the possibility of pardons. Even small details,
like the jury's special verdict in Dudley & Stephens, comes up again in Fuller's case. But an
inventory of these borrowed elements only brings into relief the extent of Fuller's creativity.
He moved the accident from the high seas to a cave within Newgarth.
In this paper, the parts have been sub-divided as follows:
1.

Allegory

2.

Opinion of Chief Justice Truepenny.

3.

Opinion of Justice Foster.

4.

Opinion of Justice Tatting.

5.

Opinion of Justice Keen.

6.

Opinion of Justice Handy.

7.

Conclusion and Findings

PART I: THE ALLEGORY/STORY
Lon L. Fullers the case of Speluncean Explorers was first published in 1949 in the Harvard
Law Review.[8] Fuller wrote this story in order to illustrate a number of different theories
about the nature of law and legal reasoning. The various opinions are written by fictional
judges who represent different theories, and thus each opinion illustrates one or more of
those theories.
In the case of Speluncean Explorers, Fullers lesson is that the laws basic integrity is to be
found within the very processes which are utilized in the attainment of its proclaimed
goals. When Lon Fuller had put together his Speluncean Explorers hypothetical in the 1949,
there were only two significant jurisprudential philosophies in the air: natural law and
positivism. The former had largely been discredited, but was revived in the hypothetical by
Justice Foster[9], who claimed that the trapped explorers were in a moral, if not
geographical "state of nature."
This case is set in a mythical future, 4300 A.D. Fuller did not choose the date in random, he
estimated that in 1949[10], the centuries which separate us from the year 4300 are

roughly equal to those that have passed since the Age of Pericles. The case is heard in the
Court of General Instances of the County of Stowfield in the Commonwealth of Newgarth,
which has a charter of government drawn up originally by the survivors of a past
catastrophe (the Great Spiral). The case is based on a statute N.C.S.A (N.S.) which states in
specific terms in Section 12-A that Whoever Lawfully Takes The Life Of Another Shall Be
Punished By Death.
The facts of the case are in outline as follows:
The four defendants and Roger Whetmore were members of a Speluncean Society in
the Commonwealth of Newgarth. This society encouraged the exploration of caves. Early in
May of 4299 they, in the company of Roger Whetmore, then also a member of the Society,
penetrated into the interior of a limestone cavern of the type found in the Central Plateau of
this Commonwealth.[11] While exploring the cave, when they were in a position remote
from the mouth of the cave, a landslide occurred. Heavy boulders fell in such a manner as to
block completely the only known opening to the cave, and therefore, they were all trapped
within the cavern. The five men were carrying scant resources with them. On their non
return the families of the explorers informed the Society which in turn informed the State. A
rescue party was promptly dispatched for their rescue. In the rescue operations, 10
workmen lost their lives in fresh landslides. A great expense was also incurred to rescue the
trapped men.
It was found that one of the explorers has a portable radio set capable of sending and
receiving messages. Therefore, contact was established by the rescue team with the trapped
men. The five trapped men, after learning that it would be atleast ten more days until they
were rescued, sought a professional medical opinion as to whether or not they could
possibly survive this duration. Upon being informed that they would not, they deliberated
for eight hours after which they sought counsel first from the physician, then from a
government official, and finally from a minister as to whether or not it would be advisable to
cast lots and kill and consume one of their members so that the others may survive. None of
the three parties were willing to answer. None of them answered in the affirmative or
negative. With their question unanswered, the men severed radio contact with the people
outside.
On their eventual release, it became apparent that some twenty three days after their entry
into the cave, the defendants had killed and eaten Whetmore. In evidence, it was indicated
that Whetmore had suggested that the groups survival would be impossible without
nutrient, and that this would necessitate the eating of flesh of a member of the group. It was

also said that Whetmore himself had suggested the casting of lots by dice to choose such
unfortunate member. However, Whetmore after reflection withdrew from the offer terming
it frightful and odious. He was accused by the defendants of breach of faith and they
proceeded to cast dice. Whetmore also declared tat he had no objection to one of the
defendants casting the dice on his behalf. The throw of the dice was unfortunately against
Whetmore. The other group members therefore killed him after which they ate his flesh.
After the defendants had been rescued from the cave and their suitable treatment, they were
indicted

for

the

murder

of

Whetmore

in

the

Court

of

General

Instances,

the County of Stowfield. The court found all of them guilty and were sentenced to death by
hanging.
Following the discharge of the jury, its members joined in communicating with the states
Chief Executive and requesting that the death sentence be commuted to imprisonment for a
period of six months. Similar action was taken by the Trial judge. The defendants brought a
petition of error to the Supreme Court of Newgarth. The court issued its opinions in the year
4300.
In the trial that ensued, the five judge bench gave differing opinions and profoundly
different ratios for the same. Fuller wrote these five opinions as representing different
schools of thought.

PART II OPINION OF CHIEF JUSTICE TRUEPENNY

In his argument Chief Justice Truepenny [12] after stating the facts as mentioned in Part I of
this paper ruled in favour for strictly applying the letter of the law rather than interpreting
the law. According to him the jury and the trial judge followed a course that was not only
fair and wise, but the only course that was open to them under the law. He however also
proposed to his colleagues that they follow the example of the jury and trial judge by joining
in the communications they have addressed to the Chief Executive of the State for clemency
for the defendants.
Chief justice Truepenny appears to be an Advocate of Textualism or Institutionalism. He
represented the Positivist[13] Perspective. According to this school law should be given a
literal interpretation. Law is what it is rather than what it ought to be. That is, it is free from
moral considerations once it is enacted by a sovereign authority.
VERDICT: He affirmed the decision of the trial court but however requested clemency also.

ANALYSIS
The main thrust of this argument presented by Chief Justice Truepenny is that the statue
under scrutiny is not ambiguous and is plainly stated for applying the law rather than
interpreting the law. And, as the statue states, Whoever shall willfully take the life of
another shall be punished by death, he said the defendants should be hanged till death.
However, Truepennys argument has much strength which, at face value, can be applied to
this case in question. Arguably, first, the language of the statue applies directly to what the
defendants did to Roger Whetmore. Therefore, there is no argument not to punish
defendants following the existing law. Also, there is no question into the matter that the
men on trial willfully took the life of Whetmore. It is an admitted fat that they did.
However, there is another aspect of this peculiar case. As has been stated in the testimony of
the defendants that Whetmore was in concurrence with the decision to cast lots to
determine his own fate. Now, therefore, the question is, does all accountability of Roger
Whetmores death reside in the defendants alone, or should Whetmore be held partly
responsible as well for the crime.
Therefore, it is submitted here that it would be impractical to merely apply the statue on the
grounds of the text and ignoring the basic foundation of why law has become law. There
should be utilization of prudence in decision of cases and each case should be decided on its
merits. What law requires is intelligent obedience, not idiotic adherence.
To conclude, Chief Justice Truepenny's legal analysis was short.He
recommended a plea for clemency to the Chief Executive because he felt the
statute was clearly against the conspirators. But there is no reflection or
consideration of the statute itself; it is assumed to speak against he
defendants. The appeal for clemency seemed as an abandonment of the
judicial role, a sort of "cop out," or an admission that the legal system was
not really able to handle the complexities of the issue.
OPINION OF JUSTICE FOSTER
Judge Foster it is said represents the alter-ego of Fuller. He represents the natural
school[14] of jurisprudence. His opinion is the best written one of the five.
Justice Foster expressed shock at hearing of Chief Justice Truepennys opinion. He argued
that the Law of the Commonwealth is at stake if we try to textually apply the law in this case.
According to him, the defendants when trapped in the cave were outside the jurisdiction
of Commonwealth ofNewgarth.

VERDICT: In his verdict, he set aside the verdict of the Trial court and held that purposive
construction should be given to the statutes.
ANALYSIS
Justice Foster did not believe that the law compels the monstrous conclusion that the
defendants were murderers. On the contrary, he said it declares them to be innocent of any
crime. He rested this conclusion on two independent grounds. He said the defendants are
not guilty on both of these grounds independently of each other.
The first of these grounds is that the enacted or positive law of this Commonwealth,
including all of its statutes and precedents, is governed instead by what ancient writers in
Europe and America called "the law of nature." When a situation arises in which the
coexistence of men becomes impossible, then a condition that underlies all of judicial
precedents and statutes has ceased to exist. He says, when that condition disappears, then
the force of our positive law disappears with it. It is similar to a situation in which a crime is
committed outside the territorial jurisdiction of the State. This has the consequences that
the law applicable to them is not the enacted and established law of this commonwealth, but
the law derived from those principles that were appropriate to their condition. He therefore
said applying this principle the defendants were not guilty of any crime.
He says that positive law is inherently territorial. Therefore, when a person is outside its
scope, the rules of law would not apply to him. Applying this principle in the instant case, he
says that the defendants were separated from the State by rock walls. Within them the State
was not even able to apply them with succour. He adds that the State was created by a social
contract to provide peace, order and succour to all.
The second ground that he takes is that one of the most ancient bits of legal wisdom is the
saying that a man may break the letter of the law without breaking the law itself. According
to him every proposition of positive law should be interpreted reasonably, in the light of its
evident purpose. In the judgment, Judge Foster says Centuries ago it was established that
a killing in self defense is excused. There is nothing in the wording of the statute that
suggests this exception. But the exception in favor of self defense is not out of the words of
the statute, but out of its purpose. When the rationale of the excuse of self defense is thus
explained, it becomes apparent that precisely the same reasoning is applicable to the case at
bar. That is, he argues that self-preservation is the most basic of all human tendencies. In
the instant case, the defendants did not kill Whetmore out of mala fides but because they
wanted to give succour to their starving bodies. Therefore, this was a killing in self defence.
He further sites the case[15] of Commonwealth v. Staymore wherein it was held that a
person cannot be held guilty for anything which was beyond his control. It is here submitted

that arguably, when a man made law is enacted or enforced, there is always a reason why
the law was constructed in the first place. And therefore, law should be construed within its
purpose.
Further, he adds that if the State could sacrifice 10 lives to save one, why cannot one life be
sacrificed to save four.
To conclude, Justice Foster based his justification on the following. He says when we
consider a case which has taken place a mile beyond territorial limits of a state; no one
would pretend that the law of the state would be applicable to the case. This means that law
is not absolute, and that the positive law is predicated on the possibility of men's coexistence
in society. When a situation arises in which the coexistence of men becomes impossible,
then a condition that underlies all of our precedents and statutes ceases to exist. When that
condition disappears that the force of our positive law disappears with it, then the law of
nature works. Self defense is a right not out of the words of a penal statute (like the one in
this case), but out of its purpose. Even though there is nothing in the wording of the statute
that suggests self defense, the exception of self defense is accepted.
OPINION OF JUSTICE TATTING.
Judge Tatting had a complete opposite view of that of Judge Foster. He said he cannot
accept any of the latters opinions, more so the first part of it. According to Tatting J. how
can law of contract be more powerful than law of murder. Secondly he asked a very
fundamental question when exactly did the 5-member company move from a state of civil
society to a state of nature. Was it when the party entered the cave, or when the landslide
occurred or when the party crossed the threshold of starvation. Further, he asked the
Supreme Court of Newgarth was created out of a positive law. From where does the court
arrive its authority to decide a dispute on law of nature rather than law of the State.
Verdict: He withdrew from the case.
ANALYSIS
Tatting J. also represented the positivist school.
Tatting J argues that it is true that a statute should be applied in the light of its purpose,
and that one of the purposes of criminal legislation is recognized to be deterrence. The
difficulty is that other purposes are also ascribed to the law of crimes. It has been said that
one of its objects is to provide an orderly outlet for the instinctive human demand for
retribution. He also argued that law of retribution is equally important if not more than law
of deterrence[16] in criminal law. He quoted the case ofCommonwealth

v.

Scape wherein it was held that the one of the objects of law is also to provide outlet for
retribution. It has also been said that its object is the rehabilitation of the wrongdoer as in
Commonwealth v. Makeover.
He also said that the there is no doubt that the defendants have committed murder.
Citing Commonwealth v. Valjean[17], he said if a person cannot be pardoned for
stealing a loaf of bread how can one be forgiven for killing a person out of starvation.

[18] Further, he says assuming that we must interpret a statue in the light of its purpose,
what are we to do when it has many purposes or when its purposes are disputed? The
familiar explanation for the excuse of self defense cannot be applied by analogy to the facts
of this case. These men acted not only "willfully" but also with great deliberation and after
hours of discussion what they should do.
He however gave credence to Foster J. for his theory of purposive construction of a statute.
He added that it is a matter of regret that the Prosecutor saw fit to ask for an indictment of
murder. If we had a provision in our statutes making it a crime to eat human flesh, that
would have been a more appropriate charge. If no other charge suited to the facts of this
case could be brought against the defendants, it would have been wiser not to have indicted
them at all.
Further, it seems from the allegory that Judge Tatting believed in the power of judicial
precedents. He was confused as to what effect this precedent [19]would have on future cases
before the courts.
Since He was wholly unable to resolve the doubts that beset him about the law of this case,
He declared his withdrawal from the case
From the allegory, it can be said that Judge Tatting ultimately withdrew from the
case because of the overwhelming dissonance he felt after thinking through the issues. He
disagreed with Foster on the state of nature issue, but he agreed with Foster
that there is precedential value in his theory of self-defense. He however, did not
see statutes as having just one purpose, and according to him there are other explanations
of self-defense stressing the importance of "non-willful" conduct. But the conspirators
acted "willfully." So, that is why he is confused. He sees that both perspectives
(acquittal and conviction) have equally strong arguments and he cannot
decide.

OPINION OF JUSTICE KEEN

In the outset of his opinion, Judge Keen says Executive clemency is a question for the Chief
Executive, not for the judges to direct the Chief Executive. He therefore disapproved of that

passage in the opinion of the Chief Justice in which he in effect gives instructions to the
Chief Executive as to what he should do in this case.
He said while deciding whether what these men did was "right" or wrong" "wicked" or
"good is not for a judge to decide. He should not apply his conceptions of morality, but the
law of the land. The sole question before us, therefore, he said, for decision is whether these
defendants did, within the meaning of N.C.S. A. (N.S.) 12-A, willfully take the life of Roger
Whetmore. On this count, any candid observer would concede at once that these defendants
did "willfully take the life" of Roger Whetmore. He then proceeded to acknowledge that
hard decisions are never popular, but that har decision may even have acertain moral value
by bringing home to the people their own responsibilities toward the law that is ultimately
their creation and by reminding them tat there is no principle of personal grace that can
relieve the mistakes of their representatives, i.e. the legislators
VERDICT: He found the defendants guilty.
ANALYSIS
Keen J too belonged to the positivist school. He appears to be an advocate of Textualism. He
stressed that asking for executive clemency is improper for judges, although they may do so
in their capacity as private citizens. He said that the major problem in the case is the
failure of others to separate law and morality. Once this is done, one realizes
that statutes are not necessarily embodiments of moral thoughts and a
decision is much easier.
He said there was a time in the Commonwealth when the judges did in fact legislate very
freely. But we now have a clear-cut principle, which is the supremacy of the legislative
branch of our government. From that principle flows the obligation of the judiciary to
enforce faithfully the written law in accordance with its plain meaning without reference to
our personal desires or our individual conceptions of justice. Here, he outlines the principle
of strict adherence to separation of powers of the three chief organs of government.
Then, he goes into the history of the community, stressing that judicial activism or
indeterminacy of interpretation actually was a factor in precipitating a civil war. [20] He also
declines to accept the theory that there is only one purpose for a statute. It really is
impossible for a judge to divine legislative "purpose." Finally, a hard and harsh
decision here is probably good, for it forces the legislature to reconsider the
statute. He says it is for the people to remind the Legislature of his mistake and
not for the judiciary. The scope of the exception in favor of self defense as it has been
applied by the Court is plain: it applies to cases of resisting an aggressive threat to the
party's own life. It is therefore too clear for argument that this case does not fall within the

scope of the exception, since it is plain that Whetmore made no threat against the lives of
these defendants
To conclude, it can be said that according to him a law in the form of a law can be enforced if
it is a good law or a bad one. And lawyer should think of the letter of the law not the
personal moral. And the process of the judicial reform requires steps on the part of the
Legislature/executive.

OPINION OF JUSTICE HANDY.

Justice Handy believed that law should be what the public wants. He disproved of what he
called his colleagues' ability to throw an obscuring curtain of legalisms about every issue
presented to them for decision. Judges should not go into positivism or natural law, right or
wrong. According to him, since by a poll it was said that the majority populace wanted the
defendants to be let off with a token punishment, the judges should comply with this
popular opinion.
According to him government is a human affair, and that men are ruled, not by words on
paper or by abstract theories, but by other men. They are ruled well when their rulers
understand the feelings and conceptions of the masses. They are ruled badly when that
understanding is lacking. Judges need to be in tune with popular opinion. He disapproved
of the practice of the courts. He observed- Lawyers are hired by both sides to analyze and
dissect. Judges and attorneys vie with one another to see who can discover the greatest
number of difficulties and distinctions in a single set of facts. Each side tries to find cases,
real or imagined, that will embarrass the demonstrations of the other side. To escape this
embarrassment, still further distinctions are invented and imported into the situation.
When a set of facts has been subjected to this kind of treatment for a sufficient time, all the
life and juice have gone out of it and we have left a handful of dust.
According to him, the case before the court was a question of practical wisdom, to be
exercised in context, not of abstract theory, but of human realities. He said the most obvious
advantage of treating forms and abstract concepts as instruments is that it permits one to go
about ones daily tasks with efficiency and common sense. When these conceptions are
applied to the case before the courts, decision becomes perfectly easy. He further added that
this case has aroused enormous public interest. In one widely read newspaper chains
poll, on the question, "what do you think the Supreme court should do with the Speluncean
explorer?", about ninety per cent expressed a belief that the defendants should be pardoned
or let off with a kind of token punishment. It is perfectly clear, then, how the public feels
about the case. And this is the decision the judges should give.

VERDICT: He set aside the verdict and said that the court should follow public opinion.
ANALYSIS
Judge Handy is the judge of practical/popular wisdom. [21] In the allegory, he
echoed the views of sociological school of jurisprudence. Practical wisdom is a significant
category for Aristotle in his Nicomachean Ethics and refers to the skill needed in life to
deliberate and reach decisions (in contrast to theoretical knowledge or practical skill).

[22] This judge is very solicitous of public opinion, believing that the legitimacy
of the judicial enterprise is because it reflects the will of the people.This aspect
has practical implications in our media-driven society. Many a times we see that popular
media has had an effect on judges. [23] Further, trial by media has been an issue of hot
debate in legal as well as popular circles since some time now.
This was the last of the five opinions. The Supreme Court being equally divided, the
conviction and the sentence of the Court of General Instances was affirmed. The defendants
were ordered to be hanged.
CONCLUSION AND FINDINGS
Fullers case looks at separation of powers issues (through the notion of recommending
clemency to the Chief Executive), natural law theory, positivism, statutory interpretation
(whether there are "gaps" in statutes and how to "fill" them), the purpose(s) of statutes, the
role of precedents and how to use them, the relationship of law and morality, judging as the
manifestation of practical reason, various theories of self-defense. All in all it deals with
almost all the issues that could be contemplated in mid 20 thcentury.
As said earlier, it is widely believed that Fuller based his case on two real cases. A brief gist
of the cases is produced below for the benefit of the reader.
U.S. vs. Holmes (1842)[24]
FACTS: In 1841, the U.S. immigrant ship William Brown sailing from Liverpool
to Philadelphia, sank after hitting an iceberg. 42 people, including the mate and several
sailors, found themselves on one of the life boats; after a day or so it began to spring leaks
and was sinking. Crewmen, including the defendant Alexander William Holmes, believed
that their overloaded lifeboat was in danger of itself sinking and put 14 or 16 passengers
overboard to their inevitable deaths in the frigid water. On his return toPhiladelphia,
Holmes was arrested and charged with murder. However, thegrand jury rejected
the indictment and substituted manslaughter. The judge in the United States circuit
court for the Eastern District of Pennsylvania instructed the jury that necessity might be a
complete defence but that "before the protection of the law of necessity can be invoked, a

case of necessity must exist, the slayer must be faultless, he must owe no duty to the victim."

The jury convicted Holmes and the principle of necessity was not tested by any higher court.
Holmes was found guilty and sentenced to six months in prison and a fine of $20; he served
the time but did not have to pay the fine, because he was eventually pardoned by President
John Tyler.
Regina vs. Dudley & Stephens (1884)[25]
There was another case in 1884 (Queen v. Dudley) which resembles the Speluncean Case
even more closely, insofar as it too involved cannabalism, albeit cannabalism on the high

seas. The facts of the case are as follows:

A yacht sailing from Essex, England to Sydney, Australia sank, leaving four crew members in
a 13-foot lifeboat: the captain (Dudley) and the mate (Stephens), and two seamen, Brooks
and Parker. Parker was 17 years old and already weak. After several days without food and
water,Dudley suggested to Stephens that they conduct a lottery to choose one person to be
killed and eaten by the others. Stephens refused. LaterDudley convinced Stephens that they
should kill Parker, who was already ill and without family, and eat him. They did so and
consumed about half of Parker over the next few days, at which point they were rescued by a
German Boat. The boat put in at Falmouth, England on the way back to Germany. There the
men were charged with murder. The public was on the side of the defendants, so the judge
asked the jury for a special verdict: not a finding of guilt or innocence, but simply a finding

on the facts.
Based on the facts found by the jury, the judge found the men guilty and sentenced them to
hang. They were pardoned by Queen Victoria.
As said earlier, when Lon Fuller had put together his Speluncean Explorers hypothetical in
the 1940s, there really were only two significant jurisprudential philosophies in the air:
natural law and positivism. The former had largely been discredited, but was revived in the
hypothetical by Justice Foster, who claimed that the trapped explorers were in a moral, if
not geographical "state of nature." It seems that Fuller included a natural law argument in
the hypothetical was that the one of the underlying real cases was US v. Holmes, where the
defendant's attorneys unsuccessfully tried to argue such a defense for Holmes. Positivism,
the other theory, was all the rage in the 1940s. Positivism is a "big umbrella" word, which
covers all things from the utilitarianism of Jeremy Bentham to any effort that wants to
separate law from morality. Justice Keen is the exponent of positivism in the hypothetical.
Through this allegory, Fuller is seeking consideration of the purposes for which law exists.
The varying nature of judgements of the Supreme Court are used to illustrate a variety of

approaches to law. The opinion of the Chief Justice seems to be based upon a belief in the
significance of executive clemency in appeals against conviction and sentence. Foster J (who
accepts Fullers own views) draws attention to the importance of the spirit of the law rather
than the letter. Tatting J. evades responsibility by declaring his inability to reach a decision.
Keen J. follows the philosophy of positivism in separating matters of law and morality.
Handy J. advocates a decision which he believes to be administratively convenient and
popular.
Through the decision of Foster J., Fuller affirms his belief in the need for intertwining of
law, morality and reason in deciding legal questions. Each strand of the process is
necessary. Positivism provides a distorted view of law, which is seen as a one-way
projection of authority the law is set out and t is the duty of the citizen to obey its letter.
Fullers own postscript to the case is of particular significance. The case, he notes, was
constructed for the sole purpose of bringing into a common focus certain divergent
philosophies of law and government, philosophies which have existed since the time of the
ancient Greeks. Even after we have sought solutions to the problems raised in earlier times,
the debates will continue. He ends with saying that if there is any element of prediction in
the case, it does not go beyond a suggestion that the questions raised here are permanent
questions before the human race. This statement, it is submitted here is particularly true.
Debates on judicial accountability, judicial activism, separation of powers, role of media,
retributive theory of punishment v. reformatve theory are still constant topics of debate and
discussions even after 60 years of this allegory. And it seems unlikely that these debates will
be settled soon.
It is also pertinent to mention here that D'Amato's "Further Proceedings,[26] added
furtherproceedings.TheauthorinhisarticleimaginesthatthedecisionoftheCourtwasgivenover
toaCommitteeofthreeprofessorsforreview.Hisarticledealswiththeopinionoftheseprofessors.
Itwouldnotbewrongtomentionherethereasonsfortheartcleasmentionedbytheauthorhimself
initsfirstparagraph
is a classic in jurisprudence. Set in the Supreme Court of Newgarth in the year
4300 the case presents five judicial opinions which clash with each other and produce for
the reader an exhilarating excursion into fundamental theories of law and the state and
the role of courts vis-i-vis legislatures and executives. Though the issues articulated by
Professor Fuller in 1949 are timeless, the past thirty years in jurisprudential scholarship
have produced at least one major new vantage point- the "rights thesis" as advanced by
Professor Dworkin and others. Simply stated, the rights thesis holds that there is a "right"
answer, and only one right answer, in every case. The litigants have a "right" to that and
finally-to add one more shade of meaning to the comprehensive term "right"-the answer

thus arrived at is dictated by general requirements of justice. Since justice is a branch of

morality, the "right" answer is not only correct but also right in a moral sense

BIBLIOGRAPHY
1. Bodenheimer, Edgar; Jurisprudence the Philosophy and Method of Law,
Universal Book Traders, New Delhi, 1974.
2. Curzon, L. B; Q & A Series Jurisprudence, Cavendish Publishing Limited,
London 2005, Third Edition.
3. Dias, R. W. M.; Jurisprudence 3rd Edition, London Butterworths 1970.

[1] From the introduction to Peter Suber, The Case of the Speluncean Explorers: Nine New Opinions,
Routledge, 1998, excerpted online at http://www.earlham.edu/~peters/writing/csepref.htm
[2] An allegory is a story with multiple layers of meaning underneath the primary surface story will be
found a secondary layer of more profound meaning. Essentially, an allegory seeks to teach a lesson.
[3] Lon L. Fuller, The Morality of Law, New Haven and London: Yale University Press, 1969; [1964]): p.
106
[4] E.g. if there is a statute which says vehicles are prohibited in parks. Fuller would say that the
interpretation of the term vehicle would depend on the purpose for banning vehicles from the park. For
example, if the purpose were to prevent noise pollution, a bicycle would not be a vehicle for the purposes
of the law. Because of this focus on purpose instead of meaning, a judge using a natural law interpretation
of statutes relies much more heavily on legislative history.
[5] Source en.wikipedia.com/lonfuller
[6] Views expressed by some authors. Sourced
from http://www.libertarian.co.uk/lapubs/legan/legan022.pdfaccessed on 7/4/2009.
[7] These cases shall be some detail in the last part of this paper.
[8] Harvard Law Review, vol. 62, no. 4 (1949) pp. 616-645
[9] A judge in the 5-Member Bench of the Supreme Court in the hypothetical. Refer subsequent pages.
[10] The year when the story appeared in Harward Law Review.
[11] In the words of Fuller himself in the case published I Harvard law Review 1949.
[12] According to him- The language of the relevant statute was well known and it permitted of no
exceptions applicable to this case. But sympathies may incline us to make allowances for the tragic
situation in which the defendants found themselves. In such a case, the principle of executive clemency
seemed admirably suited to mitigate the rigors of the law. The Chief Justice then proposed that his
colleagues should join him in following the example of the trial judge and jury by joining in their
communication to the Chief Executive, asking for clemency. He presumed that some form of clemency
would be shown to the defendants and, if this were done, then justice would have been accomplished

without impairing either the spirit or the letter of the statute and without offering any encouragement for
the disregard the law.
[13] Legal positivism is the thesis that the existence and content of law depends on social facts and not on
its merits. The English jurist John Austin (1790-1859) formulated it thus: The existence of law is one
thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not
conformable to an assumed standard, is a different enquiry. (1832, p. 157)
The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it
is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason
for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided,
practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a
social construction.
Positivists believe in a separation between the law as it is and the law as it should be. They believe law is
what it is. And it should be strictly applied.
[14] The natural law view believes that the creation of law should be based on natural laws or common
morals. Laws are viewed based on purpose, not on meaning of the words.
[15] Hypothetical. Created by Fuller.
[16] In his judgement, Judge Foster speaks of deterrence, that law of murder is created on law of
deterrence. Self defense being a basic tendency of all beings, therefore cannot be governed under this
deterrent rule.
[17] Valjean seems to have similarity with the protagonist by the same name of a German novel. There in
the novel, protagonist is a 7year old orphan boy. One day out of starvation, he steals a loaf of bread from a
shop. He is caught and put on trial. On trial he is found guilty
[18] The important point in Justice Tatting's analogy is that a man is not innocent if he steals bread from a
store because he is starving to death, and similar manner these four cannot be said that they were
innocent and they killed Whetmore just to save four lives. There is one problem with the argument. It is
submitted here that one should use prudence as a form of reasoning, and this analogy has many
problems.
[19] He shows two opinions on this case. He seems to agree that the defendants being in the peculiar
condition that they were cannot be charged with murder.
[20] Here, it seems Fuller could foretell the possible turf war between judiciary and executive over judicial
activism/interference in executive and legislative functions. There is a fire brewing in many countries
including Indiaon this count.
[21] He however conceded that there are a few fundamental rules of the game that must be accepted if the
game is to go on at all. These include the rules relating to the conduct of elections, the appointment of
public officials, and the term during which an office is held. Here he says rules on discretion and
dispensation, form, dos and donts are essential.
[22] Sourced from http://www.drbilllong.com/Jurisprudence/SpelunceanII.html, accessed on 09-042009.
[23] It is widely believed that popular opinion had abig role to play in the convictions in Jessica Lall and
Nitish Katara cases. The poular media, TV, print and all played a pivotal role in mass mobilisation.
[24] U.S. v. Holmes (1842) 1 26 Fed. Cas. 360
[25] (1884) 14 QBD 273 DC
[26] The Speluncean Explorers-Further Proceedings by Anthony D'Amato, 32 Stanford Law Review 467
(1980) Code A80
Posted by Kavita Jitani at 23:38
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8 comments:
1.

a crown of splendour9 March 2013 at 18:04

Excellent summary.
Reply
Replies

1.
Kavita Jitani19 June 2013 at 02:42
Glad that you found this useful. Thanks.
Reply
2.
Samantha13 April 2013 at 04:53
Awesome and really helpful! I couldn't be more grateful!
Reply
3.
Juhiena Ahmed29 May 2013 at 06:24
Wow this was great and I didn't have to read the case again. Thanks :)
Reply
Replies

1.
Kavita Jitani19 June 2013 at 02:44
Thanks Juhiena. Glad that you found useful.
Reply
4.
Kavita Jitani19 June 2013 at 02:43
Thanks so much Samantha. Glad that you liked it.
Reply
5.
Sandra Susan Mathew1 December 2013 at 00:25
Thanks a ton. This is brilliant !!
Reply

6.
Priya Rao30 August 2015 at 22:47
Thanks for this brilliant analysis. May I please use your article as reading material
for my 11th std. students who are doing a unit on Law as part of their course on
Political Science? I am based in Bangalore.
Reply
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Kavita Jitani
Kavita is a New Delhi based lawyer with around 5 years of experience in general corporate
and competition law. She prides herself for her ability to juggle competing tasks
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