The Case of the Speluncean Explorers

Citation

Fuller, L. L. (1949). The case of the speluncean explorers. Harvard Law Review, 62(4), 616–645. https://doi.org/10.2307/1336025

Chapter Summary

Fuller's piece is a single journal article of about thirty pages, written as a fictional appellate judgment. It is set in the "Supreme Court of Newgarth" in the year 4300, and consists of the facts of a case followed by five separate judicial opinions. A postscript explains the choice of date: the centuries between the reader and the year 4300 are about as many as those separating the reader from the age of Pericles. The article has no chapters, so the sections below follow the structure of the judgment: the facts, then each opinion in turn.

The Facts of the Case

Five cave explorers are trapped by a landslide with little food. Substantial resources are spent on rescue, and ten workmen are killed in further landslides near the blocked entrance. When radio contact is made on the twentieth day, the explorers learn that at least ten more days will be needed to free them, and medical experts tell them they are unlikely to survive that long without food. One of them, Roger Whetmore, asks whether they could survive if they ate one of their number, and whether lots should be drawn; nobody outside is willing to answer, and contact is lost. When the cave is cleared, Whetmore has been killed and eaten. The survivors say he proposed the plan and offered a pair of dice, but withdrew before they were cast; the others threw on his behalf. They are convicted of murder under a statute that provides that anyone who wilfully takes another's life is to be punished by death, and the trial judge and jury petition the Chief Executive for clemency.

Opinion of Chief Justice Truepenny

The first opinion recounts the facts. The Chief Justice treats the statute as unambiguous and without applicable defences, and holds that the court must apply it. Mercy, he says, is for the executive, not the judiciary, but he proposes that the judges join the trial judge and jury in petitioning the Chief Executive. He affirms the convictions while recommending clemency.

Opinion of Justice Foster

Foster would set the convictions aside, on two grounds. First, the explorers were in a "state of nature" when they acted, so the laws of nature, which in his view permit an agreement to sacrifice one life for the others, applied to them. Second, if Newgarth's law does apply, its purpose, which he takes to be deterrence, would not be served by a conviction, just as it is not in cases of self-defence. He answers the worry about judicial activism by saying judges must read statutes intelligently, correcting obvious oversights in order to make the legislative will effective.

Opinion of Justice Tatting

Tatting is torn between sympathy for the defendants and revulsion at what they did. He rejects Foster's reasoning, criticizing the "state of nature" argument and the difficulty of applying a purposive approach to a statute with several purposes such as retribution and rehabilitation. He cannot, however, bring himself to uphold the convictions, finds that nearly every consideration is balanced by an opposing one, criticizes the prosecutor for bringing the case, and withdraws from the decision.

Opinion of Justice Keen

Keen separates the legal from the moral. He excludes executive clemency and the morality of the defendants' conduct as matters for the court and says the only question is whether the defendants wilfully took a life. He objects to Foster's purposive approach, notes the difficulty of identifying a statute's purpose, appeals to Newgarth's history of judicial overreach and the supremacy of the legislature, and affirms the convictions despite sharing the wish that the defendants be spared.

Opinion of Justice Handy

Handy prefers a "pragmatic, common-sense approach" to abstract legal theory, criticizing his colleagues' "obscuring curtain of legalisms". He stresses that courts must keep public confidence, notes that about ninety percent of the public favour a token punishment or release, and is prepared to use Foster's purposive reasoning as the legal route to acquittal. He sets the convictions aside.

Result

With Tatting withdrawn, the court divides two to two, so the convictions stand and the sentences stand with them. The article presents the problem and the five responses without choosing among them.

Key Concepts

The Facts and Truepenny's Opinion

• Mandatory statute: the murder statute leaves no exception relevant to the case, and carries death.
• Executive clemency: whether mercy is for the court or the executive is the first dividing line.

Foster, Tatting and Keen

• State of nature: Foster's argument that ordinary law did not govern the explorers.
• Purposive interpretation: reading a statute by its purpose, argued by Foster and attacked by Tatting and Keen.
• Separation of powers: Keen's argument that law and morality, and the legislature's role, must be kept apart from the court's.

Handy and the Result

• Common sense and public opinion: Handy's alternative to legal theory.
• Recusal and the tie: Tatting's withdrawal leaves the court evenly divided.

Critical Analysis

Strengths

• A compact way into the major positions. The five opinions use one set of facts to separate positions on statutory interpretation, the relation of law to morality and the proper role of judges, so students can compare them directly.
• No conclusion is imposed. The outcome is a tie, with each opinion answered by another, which is useful for discussion in a seminar.
• Lasting influence. Commentators have called it a classic in jurisprudence, and over the fifty years after publication some twenty-five further hypothetical judgments were written, from natural law to feminism and critical legal studies.
• Related real cases. The case is often read with the English prosecution R v Dudley and Stephens (1884) and the American case United States v. Holmes, both involving killing for survival.

Limitations

• A teaching device, not a theory. The article does not give a systematic account of any school of legal philosophy; the labels often applied to the opinions are the later commentators' rather than the article's own.
• Not an exhaustive map. The five opinions do not cover every approach: the further judgments written in the following decades added perspectives such as consequentialism, realism, critical legal studies and feminism. The piece is best used as a prompt, followed by reading of the theory.
• One article, many continuations. Much of the later discussion lives elsewhere, for example in the 1999 Harvard Law Review symposium "The Case of the Speluncean Explorers: Revisited" and in Peter Suber's book of nine new opinions, so a full study of the case means reading beyond Fuller's pages.

Where It Fits in the Course

In the jurisprudence list, Fuller's article is the shortest and most discussable text. Raymond Wacks's Philosophy of Law: A Very Short Introduction and Nigel Simmonds's Central Issues in Jurisprudence are the introductions that provide the theories (what law is, how it relates to morality, what justice requires) against which the five opinions can be placed; reading either first makes the opinions' disagreement easier to name. Nicola Lacey's biography of H. L. A. Hart traces the intellectual life of a central figure in modern legal theory.

The animal rights works in the list, Tom Regan's The Case for Animal Rights, Defending Animal Rights, and Singer and Regan's Animal Rights and Human Obligations, are applications of moral and legal argument to a different problem and can be read as further exercises in weighing principle against consequence.

How to Use This Book

The article suits first-year law students and undergraduates in philosophy or politics; it needs no legal knowledge. It is short enough to read in one sitting.

A practical plan:

• First pass: Read the facts and the five opinions straight through, and decide how you would vote before consulting any commentary.
• Second pass: For each judge, write down the one sentence that carries his argument and the objection another judge raises against it. Pay attention to Tatting's withdrawal and what it shows.
• Then: Read one of the introductions in the course to see how the arguments map onto the positions of legal theory, and compare the facts with the real survival-at-sea cases. Optionally, write a sixth opinion.