The Speluncean Explorers, part 1 Notes for February 20

Main points

We laid out and discussed the views of the first three justices on these questions:

  1. What is the correct philosophy of law? That is, what is the law and how do we know it?
  2. What is the proper role of judges?
  3. What is the relationship between justice, the law, and the various agencies of the government?
  4. How should judges rule in this case?

Our discussion was far too rich to summarize here. Well done!


Truepenny holds that the law is found in statutes, that is, the written laws that are passed by the legislature.

I say that because that is all he appeals to in rendering his verdict. By contrast with Tatting, he gives no consideration to court decisions, history, or legal education. Why? Either he doesn’t think they’re relevant or he doesn’t think they could possibly alter the apparently clear wording of the statute.

Truepenny believes that carrying out the sentence would be unjust. But he does not think it is necessarily the judiciary’s role to prevent the unjust result. Instead, he urges the executive to pardon the defendants, thereby effectively nullifying his own decision.


In Foster’s opinion, we cannot understand what the law is without understanding the assumptions and purposes of particular statutes and the legal system as a whole.

Consequently, his first argument turns on a broad claim about the presuppositions of the legal system. His second argument rests on a claim that the purpose of the statute is to deter murder.

Judges should find and articulate these assumptions in order to make their decisions.


Tatting finds the law in specifically legal institutions. He relies on judicial decisions and legal education in deciding how to apply the statute to the case at hand.

Tatting digs up a lot of material but lacks the means to assess it. He has no deeper view about the nature of the law and so cannot weigh the conflicting materials that he found. Consequently, he cannot make a decision at all and abstains.

For those who can’t get enough

I think you should read Fuller’s article two or three times before charging off to something else. So I advise you to stop reading this page now and go back to the textbook.

That said, you might enjoy reading the essays written on the fiftieth anniversary of the publication of Fuller’s original essay. They’re written by some of today’s legal hotshots. What are the essays about? Why, they’re more opinions. If you don’t read it now, you might pick it up after the term ends. You know, for summer reading.

J. Kozinski, J. Sunstein, J. West, J. de Bunker, J. Easterbrook, and S. Housemaid. “The Case of the Speluncean Explorers: Revisited”. Harvard Law Review 112 (1999): 1876-1923. JSTOR

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2008. It was posted February 22, 2008.
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