Speluncean Explorers 1

Notes for February 18

Main points

We talked about the facts of the case and the opinions by Justices Truepenny and Foster.

The facts

While the case in our article is fictional, the author clearly drew on some real cases. There is a very close resemblance to the case of Regina v. Dudley and Stephens, for instance. If you’re curious, I posted the decision on Sakai. It’s purely optional.


Truepenny’s views are straightforward. The only tricky thing about his opinion was the last sentence. It seemed to draw a spurious distinction between having the judiciary see that the just result happens and having the Chief Executive do so. Why would the one “impair” the “letter or spirit” of the statutes and offer encouragement to disregard the law while the other would not?

David had a clever answer. If the judges do it, they will have to say that the law does not mean what it clearly says or they will have to make up some exception to the law. That’s the only way someone in the judge’s position can rationalize such a decision. The Chief Executive can commute the sentence for any reason, without having to say anything at all about the statutes.

I’m with Patrick: I’m not sure that would ultimately be persuasive. But it is clever and I sure didn’t see it. Well done!

Foster’s state of nature argument

Foster has two arguments. One maintains that the spelunceans were not subject to the laws of Newgarth. The other grants that they are subject to the laws of Newgarth but maintains that they are not guilty of violating them.

Following Kenny, we filled out Foster’s assertion that the law presupposes the possibility of coexistence. Roughly, the law cannot influence the behavior of people who will die if they follow it. That certainly seemed to be true of the unfortunate spelunceans.

We were confused about Foster’s assertion that the spelunceans had established their own social contract. Angela made an excellent point here: if the premise about the need for the possibility of coexistence is correct, it should not be possible for them to have established their own legal system. In addition, I do not see why Foster thought it was necessary to show that they had their own legal system. All he had to show was that they were not under Newgarth’s laws. He did not have to show that they were under some other law.

But then Lazaros asked how they were re-admitted to Newgarth when they got out of the cave. I had not thought that through. But, I suppose, the same question could be asked whether they made their own legal system, as Foster says, or not, as I think he should have said. So maybe the problem applies either way.

There are some questions about the state of nature argument that we did not bring up but that I will share as food for thought. First, is it really true that the law presupposes the possibility of coexistence? We have priority lists for organ transplants: those lower on the list are supposed to wait their turn, even if that means they might die before an organ becomes available. They cannot coexist with those higher up on the list (and maybe with healthy potential donors). Yet the law requires them to wait their turn; they can’t kill people on the list. Does this show the assumption is wrong?

Also, it is not necessarily true that the law cannot influence the behavior of people whose lives are at stake. The law could punish the family members of someone who kills out of necessity. Or the punishment for the perpetrator could be especially gruesome (I will let you imagine this for yourself). Again, does that show the assumption is mistaken?

Foster’s statutory analysis

Foster’s second argument switches gears. He grants that the spelunceans were under the laws of Newgarth and denies that they were guilty of violating the statute in question.

His argument turns on a general approach to interpreting statutes that seems particularly apt for this particular one. As he notes, there is no exception for self-defense in the statute itself, but every court has assumed that it makes sense only if there is one. (He might have added that the statute has to make an exception for the executioner as well.)

I said that his reference to self-defense has to be taken with care. His argument is not that the spelunceans were acting in self-defense. Whetmore was not attacking them. It is, instead, that the reasoning behind the self-defense exception also supports an exception for killing out of necessity. (Necessity means acting in order to save your life.)

We closed with the stupidest housemaid. After doing some clumsy fishing for an answer (sorry Emily), I said what was on my mind: it’s important that the housemaid is a servant. He was trying to say that the courts could still be subservient even if they engaged in his style of interpretation.

Raphael wasn’t buying it. He thought that the search for purposes went well beyond the sorts of things the housemaid was described as doing. I think he has a pretty good point.

Key concepts

For each justice:

  1. What is the source of the law?
  2. What is the role of the judge?
  3. What role does justice play?
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2014. It was posted February 18, 2014.
Philosophy of Law