Speluncean explorers 1

Notes for February 25

Main points

The case of the Speluncean explorers is meant to show how a philosophy of law matters. We’re given a fictional court of appeals. Each justice has a different view about what the law consists in and how to balance moral concerns with more narrowly legal ones. These philosophical views leads to five different ways of deciding the case.

We started off with four votes to sustain the conviction, eleven votes to overturn it, and four undecided. We’ll see where we end up!


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. Judges have 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.

Oh, and by the way, the word I was looking for to describe an alternative purpose of punishment is “incapacitation” (i.e. keeping the criminals off the street). It came to me in Union Station. Clearly, I’m going to have to start drinking coffee earlier in the afternoon.


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.

Key concepts

  1. Where does each judge think the law is found? What sources do they consult in order to answer the legal question before them?
  2. How does each judge balance law and morality in his decision?
  3. Foster’s law of nature argument.
  4. Foster’s claim that the purpose of the statute is to deter murder.
  5. Why the statute, “Whoever shall willfully take the life of another shall be punished by death,” is a pretty stupid law.
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2013. It was posted February 25, 2013.
Philosophy of Law