The case of the Speluncean Explorers is supposed to show how different philosophies of law bear on decisions about specific cases. We talked about the first three opinions. Specifically, we laid out and discussed the views of the first three justices on these questions:
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 discussing Truepenny’s view, we talked about the advantages and disadvantages of his view that judges should restrict themselves to the law, even at the cost of allowing unjust results.
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. A judges’s job is to find and articulate these assumptions in order to make their decisions.
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.
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.