The Case of the Speluncean Explorers
A Legal and Philosophical Debate
Paper’s Author:
This is a summary of a hypothetical case written by Lon L Fuller in 1949, titled "The Case of the Speluncean Explorers." The case takes place in the imaginary 'Commonwealth of Newgarth,' and Fuller's essay includes five judicial opinions that examine the facts from various legal views. It serves as an example of the breadth and diversity of Anglo-American legal theory in the mid-twentieth century.
Basic facts
A landslide has stranded a group of cave explorers (spelunkers). As they are on the verge of starving, they make radio contact with the rescue squad. Engineers on the rescue crew believe that the rescue will take another ten days. After explaining their plight to doctors, they are told that they are unlikely to survive another 10 days without food. The explorers question the doctors if they would survive if they killed and ate one of their number. The doctors advise, grudgingly, that they would. When asked if they should arrange a lottery to decide who to kill and eat, no one in the rescue crew is willing to give advice. The radio is switched off, and a lottery is later held. The loser is slaughtered and devoured. When they are rescued, they are charged with murder, for which a guilty verdict carries a mandatory sentence of death in the Commonwealth of Newgarth. The defendants were convicted and condemned to death by the ‘Court of General Instances of the County of Stowfield,' but they have filed a petition of error with the court.
Chief Truepenny provides a more complete overview of the facts than is above.
Judgement of Chief Justice True Penny
The four defendants and the deceased were members of the 'Speluncean Society,' an amateur cave-exploration organisation, when they were trapped in a cavern due to a landslide. Because of the isolated location, rescue was difficult, time-consuming, and costly. During the rescue, ten workers were killed.
In addition to the Society's money, it required 800,000 'Frelars' (The Currency of Commonwealth of Newgarth) raised by public subscription and legislative grant to save the explorers. They were recovered after 32 days.
It was recognised early on that death by hunger was a possibility. On the 20th day, it was discovered that the explorers possessed a type of two-way radio, and spoken communication was established.
The engineers notified the explorers that it would take at least 10 days to rescue them. Following additional investigation, a team of medical specialists advised the explorers that, given the circumstances and food within the cave, the prospects of survival for another 10 days were unlikely.
The explorers asked if they would be able to live if they were to cannibalise one of the group. They were grudgingly confirmed to be able to. Whetmore inquired if it was advisable to cast lots to choose who would be eaten; no physician, judge, government official, pastor, or priest responded.
There were no further transmissions received from the cave. When the explorers were rescued, it was discovered that Whetmore had been killed and devoured on the 23rd day after entering the cave.
The jury accepted the defendants' testimony, which was as follows:
Whetmore proposed that they derive the necessary sustenance from killing and eating one of their number. Whetmore also proposed casting lots, using a pair of dice he happened to have with him. Initially the defendants were reluctant to adopt this desperate measure, but agreed when hearing the radio conversations. The explorers devised and agreed upon a method of using the dice to cast lots.
Before the dice were cast, Whetmore withdrew from the arrangement claiming he would wait another week. ‘The others charged him with a breach of faith and proceeded to cast the dice.’ Before throwing the dice on his behalf, the defendants asked Whetmore to declare any objections to the fairness of the throw. He did not object, and the throw went against him. Whetmore was put to death and eaten.
The defendants were hospitalised for starvation and shock before being charged with murder. During the trial, the jury foreman (a lawyer by profession) requested the court if the jury could reach a special verdict that left it up to the court to decide whether the defendants were guilty based on the evidence as established. Both the prosecution and the defence agreed on this.
Based on the facts established by the jury, the trial judge judged the defendants guilty of murder and condemned them to death by hanging, the mandatory sentence.
Following the trial, the jury addressed a letter to the Chief Executive of Newgarth recommending that the sentence be modified to six months in prison. The trial judge followed suit. Before making a decision on clemency, the President awaits the Supreme Court's decision on the petition of error.
Final Judgement of Chief Justice Truepenny:
Chief Justice Truepenny believes that the route followed in the first instance was "fair and prudent," and that it was the only course available. Regardless of how sympathetic people are, the Chief Justice accepts that no exception to the statutory rule applies. The Chief Justice chooses to rely on possible presidential mercy, which he describes as "mitigating the rigours of the law," and proposes that the Supreme Court join in the statement to the Chief Executive, anticipating clemency. Justice can be served in this manner without violating either the letter or the spirit of the law.
As a result, Truepenny CJ affirms the conviction.
Judgement of Justice Foster:
Chief JusticeTruepenny's attempt to "‘escape the embarrassments of this tragic case" is criticised by Justice Foster. His Honour feels that the law of Newgarth itself is on trial, and that if the defendants are found to have committed a crime, the law of Newgarth is ‘convicted in the tribunal of common sense.'
The primary reason for this opinion is that the potential of human social coexistence is the foundation of positive law. When this coexistence becomes untenable, the basic condition of the law ceases to exist. Justice Foster states that the maxim cessante ratione legis, cessat ipsa lex (‘the reason for a law ceasing, the law itself ceases') applies (albeit he admits that it is not normally applied to the entirety of the enacted legislation).
According to Justice Foster, the coexistence principle is axiomatic. All legislation, regardless of subject, is aimed at enabling and promoting human cooperation by regulating fairly and equitably ‘their common life connections.'
Justice Foster states this clearly:
When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force.
Justice Foster holds that the explorers were outside the Commonwealth's jurisdiction: "If we look to the purposes of law and government, and to the premises underlying our positive law, these men were as remote from our legal order when they made their fateful decision as if they had been a thousand miles beyond our boundaries."
The explorers were in a "state of nature," not a "state of civil society," and hence the laws of the Commonwealth of Newgarth did not apply to them. The applicable legal principles were those that were relevant to their situation, and ‘under those principles, they were guiltless of any crime.'
Justice Foster holds that the explorers were outside the Commonwealth's jurisdiction: "If we look to the purposes of law and government, and to the premises underlying our positive law, these men were as remote from our legal order when they made their fateful decision as if they had been a thousand miles beyond our boundaries."
The explorers were in a "state of nature," not a "state of civil society," and hence the laws of the Commonwealth of Newgarth did not apply to them. The applicable legal principles were those that were relevant to their situation, and ‘under those principles, they were guiltless of any crime.'
In common law jurisprudence, such approaches have been rejected. Consider, as the leading example, the case of R v Dudley (1884) 14 QBD 273 DC where necessity was rejected as a defence to murder. In that case, two shipwrecked men killed and ate a cabin boy who was in a coma.
Justice Foster contends that “it has long been acknowledged that the most fundamental basis of law or government may be found in the concept of contract,” and that the agreement to cast lots was “a new charter of government appropriate to the situation.” Dismissing sceptics, Justice Foster says that it is apparent that Newgarth's government is established on some form of voluntary charter of government that can be traced back to the current government. The authority to punish stems from the initial agreement and no higher source; ‘what higher source could we expect these famished unfortunates to find for the rule they established for themselves? ’
Justice Foster then proceeds to ‘hypothetically' reject the preceding premises, assuming that the law applies to the explorers notwithstanding their social isolation. This second basis is concerned with the interpretation of the statutory provision and endorses a method of statutory interpretation known as the ‘purposeful approach.'
Justice Foster illustrates this with a hypothetical case (Commonwealth v Staymore) in which the law was not applied because a defendant was unable to avoid breaking the wording of the law. A second case (Fehler v Neegas) included an evident typographical error, and the court did not interpret it literally.
According to Justice Foster, "there is nothing in the statute's wording that suggests" a self-defense exception: "The truth is that the exception in favour of self-defense cannot be reconciled with the statute's words, but only with its purpose."
Ironically in some jurisdictions this reasoning relating to self-defence does not hold up. For example, in New South Wales there are clear statutory defences, including one of self-defence: see Crimes Act 1900 (NSW) s 418.
The reasoning for the self-defence exemption is then discussed, with Justice Foster holding that the law cannot deter killing in self-defense when a person's life is threatened. In such instances, the assailant "will repel his opponent, regardless of the law." This rationale is applied to the explorers by Justice Foster: the law does not provide a significant barrier to people facing famine.
Justice Foster briefly explains judicial usurpation, which occurs when a court is accused of usurping the legislature by giving a statute or regulation a meaning that is not immediately obvious to the casual reader who is unaware of the goals it wants to achieve. Justice Foster admits that the court is bound by the legislation and that it "exercises its powers in subservience to the legally expressed will of the Chamber of Representatives," but he defends judicial interpretation by claiming that
The stupidest housemaid knows that when she is told … to ‘drop everything and come running’ [her master] has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect the same modicum of intelligence from the judiciary. The correction of obvious legislative errors or oversights is not to supplant the legislative will, but to make that will effective
Justice Foster comes to the conclusion that the conviction should be overturned.
Judgement of Justice Tatting
Justice Tatting begins by noting that in his role as a judge, he is typically able to distinguish between emotional and intellectual emotions and make decisions exclusively on the basis of the latter. His Honour admits that in this case, he is unable to do so, as he is split between sympathy and abhorrence and unable to disregard these concerns.
Justice Foster's position, according to His Honour, is "riddled with contradictions and fallacies." The ‘state of nature' argument is criticised by Justice Tatting, who claims that there is no convincing foundation for the assumption that the explorers somehow fled the jurisdiction. His Honour is unable to establish the date of the purported change of jurisdiction.
Justice Tatting further points out that Newgarth's courts are "empowered to implement the laws of that Commonwealth," and wonders where the jurisdiction to resolve matters under the "law of nature" comes from.
His Honour then reviews the content of Justice Foster’s proposed "code of nature" and declares it "odious." For example, under the agreement, Whetmore would not have been able to use his right to self-defense in the cavern since it would be against the terms of the agreement.
Justice Tatting finds the argument that criminal law cannot function as a deterrent when a person is faced with the choice of life or death to be persuasive. Justice Tatting agrees that Foster J's understanding of self-defense is upheld, citing the fictitious case Commonwealth v Parry, but the case "seems to have been disregarded in the texts and later decisions."
His Honour does acknowledge, however, that deterrence is not the main goal. Orderly retribution (quoting Commonwealth v Scape) and offender rehabilitation (citing Commonwealth v Makeover) are two examples: "what are we to do when it has several aims or when its purposes are disputed?"
The ‘taught doctrine' at law schools, on the other hand, is that ‘the man who acts to repel an aggressive threat to his own life does not behave “willfully,” but rather in reaction to a deeply embedded human nature instinct.' In the instance of the explorers, His Honour claims that they "did not merely "willfully," but with significant deliberation."
The two options are to follow the Supreme Court's "virtually unknown precedent" in Commonwealth v Parry that the crime of murder does not sufficiently deter those whose lives are threatened, or to follow the conventional doctrine of self-defence taught in law schools that it is not a wilful act, "but which, so far as I know, has never been adopted in any case," according to Justice Tatting.
Justice Tatting recognises the importance of precedents relating to judicial correction of legislative errors, but wonders if the Court should be expected to disregard or overturn the precedent set in Commonwealth v Valjean, in which a defendant was convicted for stealing a loaf of bread despite the fact that he was likely to go hungry.
While the circumstances reduce the role of deterrence, they do not totally absolve the explorers of responsibility. Foster J's proposed rule lacks any logical and rational premise, therefore Justice Tatting is unwilling to introduce a new exception to murder on the grounds that the scope would need to be clearly specified for applicability in future situations.
His Honour, on the other hand, concludes that he is unable to render an unbiased judgement in this matter. Justice Tatting believes that a different charge would have been more suitable. In the absence of an alternative, no charge should be filed: "It is a matter of sorrow that the Prosecutor thought proper to seek an indictment for murder," says the prosecutor.
Justice Tatting withdrew from the case's ruling because he was "completely unable to reconcile" his uncertainties.
Judgement of Justice Keen
Justice Keen promptly dismisses two issues that he believes are outside the scope of the court: executive clemency and morality. Clemency is an issue for the President, and the courts should not be considered as infringing on the separation of powers. Justice Keen would pardon the defendants completely on the basis that they had already suffered enough, but this is a private citizen's opinion, not a judge's.
Justice Keen is also unconcerned about what is ‘right' and ‘wrong.' Judges are not to apply their own moral judgments, but rather the "law of the country." As a result, Keen J dismisses Foster J's opinion's "initial and more poetic portion," and agrees that it contains a ‘Element of Fantasy‘ as revealed by Justice Tatting.
Justice Keen’s sentiments here are somewhat similar to Lord Mustill’s in R v Brown [1994] 1 AC 212. That case involved consent to assault in the context of sadio-masochistic sexual activity. The court held (in a 3-2 majority) that consent was not a defence to assault, with Lord Templeman stating ‘Cruelty is uncivilised.’ Lord Mustill’s dissenting opinion was that morality ought to be set aside and informed consent to private acts of violence will be sufficient to escape conviction.
The sole question before us for decision is whether these defendants did … willfully take the life of Roger Whetmore. … I should suppose that any candid observer … would concede at once that these defendants did …
Justice Keen states that the difficulties in deciding the case arise from a failure to separate the legal and moral aspects of the case. His Honour criticises his fellow judges for shirking their responsibility to abide by the word of the law; his Honour is determined to put personal views aside.
Justice Keen is averse to Foster J’s a purposive approach to statutory interpretation that would allow the court to justify a result it continues proper.
Justice Keen then provides a recount of the historical background of the judiciary’s position. At ‘judges did in fact legislate very freely [at] a time when the accepted principles of political science did not designate with any certainty the rank and function of the various arms of the state. … We now have a clear-cut principle, which is the supremacy of the legislative branch of our government.’
Keen J directs his criticism at Foster J, claiming that his colleague does not generally respect the judiciary's limited function. Foster J is cited by His Honour as an example of judicial reform of legislative enactments. The judicial reform process is divided into three stages:
determining or assigning a single purpose to a statute (despite the fact that no such purpose exists in any statute);
discovering that the legislator ‘overlooked’ or omitted something from the statute, and
filling in the blanks that are formed as a result of this.
Foster J's interpretation is erroneous, according to His Honour, because Justice Foster is attempting to add a purpose not indicated in the statute, but goes farther than Justice Tatting. His Honour believes the objective does not require any greater explanation beyond a "deeply felt human conviction that murder is wrong and that something should be done to the individual who does it."
Justice Keen argues that when it comes to statutes, the focus should be on its scope rather than their intent, and the same is true for exceptions. The defendants' activities definitely fell within the ambit of the statutory requirement.
A hard decision is never a popular decision.
Keen J firmly states ‘judicial dispensation does more harm in the long run than hard decisions’ and concludes that the conviction should be affirmed.
Judgment of Justice Handy
I never cease to wonder at my colleagues’ ability to throw an obscuring curtain of legalisms about every issue presented to them for decision.
The case, according to Handy J, is one of the easiest to decide since it is based on the application of "practical wisdom" rather than "abstract theory." People "are well ruled when their rulers comprehend the feelings and conceptions of the majority," according to government, which is "a human matter."
Of all branches of the government, the judiciary is the most likely to lose its contact with the common man. … When a set of facts has been subject to [judicial] treatment for a sufficient time, all the life and juice have gone out of it and we have left a handful of dust
The disparities asserted by lawyers between when rules and principles should or should not apply is a necessary evil; a result of formal regulation, according to Handy J. Except in a few key areas, His Honour prefers the judges to have a lot of discretion and leeway (eg conduct of elections and appointment of officials)
We should take as our model, I think, the good administrator, who accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited to reach the proper result. The most obvious advantage of this method of government is that it permits us to go about our daily tasks with efficiency and common sense.
Handy J goes into great detail into the trial's media coverage as well as popular opinion (90 percent of respondents to a major poll said the explorers should be pardoned or given a light punishment). According to Handy J, a proclamation of innocence should be issued to maintain the ‘agreement' between the judiciary and the public.
Certainly no layman would think that in letting these men off we had stretched the statute any more than our ancestors did when they created the excuse of selfdefence
His Honour then acknowledges that his fellow judges will no doubt be horrified by the suggestion of taking into account the ‘emotional and capricious’ public opinion.
They will tell you that the law surrounds the trial of a case like this with elaborate safeguards, designed to insure that the truth will be known and that every rational consideration bearing on the issues of the case has been taken into account.
Handy J lists four means of escaping punishment:
a determination by a judge that the accused has committed no crime,
a decision by the prosecutor not to ask for an indictment,
an acquittal by a jury, or a pardon or
a commutation by the executive
—and states that within this framework, there should be no pretence that factual errors or emotional/personal factors are excluded. His Honour provides jury nullification as an example, and states that the jury would likely have acquitted regardless of any instruction given to them, and that this was only prevented by the fact that the foreman was a lawyer whose ‘learning enabled him to devise a form of words that would allow the jury to dodge its usual responsibilities.’
Chief Justice Truepenny and Justice Tatting, His Honour notes out, want the case decided by ‘common sense.' Tatting J wants it before the trial (at the prosecutor stage), while Truepenny CJ wants it after the case (via clemency); neither of them wants to be involved personally. His Honour further points out that the Chief Justice's suggestion of upholding the verdict and requesting clemency does not appear to have any public support.
Justice Handy then expresses scepticism about the Chief Executive's willingness to give clemency, noting the Chief Executive's conservative views and his personal information (gained in an indirect way) that the Chief Executive is adamant about not commute the sentence if the verdict is overturned.
His Honour describes one of the first cases he presided over when he joined the bench, stating that a common sense approach applicable then was applicable now.
He concludes that, using a common sense approach that takes into account his previous comments, the defendants are innocent and that their convictions should be overturned.
Conclusion
The Chief Justice asked Tatting J if he wished to reconsider his position, but his Honour declined and stated that he would not participate in the case.
The conviction was upheld by the Supreme Court, which was evenly divided. Fuller does not provide any additional information on the outcome.