Spelunceans 2

Notes for February 20

Main points

We discussed Tatting and Keen’s opinions.


For each judge, I’m asking three questions:

  1. What is the source of the law?
  2. What is the role of judges?
  3. What about justice?

In order to answer these questions, sometimes you have to read between the lines and sometimes you have to look for a tell-tale phrase (like “the question before us is …”).

In Tatting’s case, you have to infer his views. To find his opinion about the source of law, you have to look at the reasons he gives for his arguments. What do all of his supporting arguments amount to?

We spent some time trying to decide exactly why Tatting gets into a mess. I am not sure if it is his legal philosophy that puts him there or if it is a conflict between his analysis of the law and his views about justice. Maybe it’s both!

We also looked specifically at Tatting’s discussion of self-defense. We asked how someone would go about comparing Tatting’s interpretation of the self-defense exception with Foster’s interpretation. Not having access to the legal histories of Newgarth, we had to look at whether the proposed interpretations made sense. So, for example, Aaron asked whether it was really true that all cases of self-defense involve acting on impulse rather than acting intentionally. Good question!


Keen thinks it is obvious that the defendants violated the natural meaning of the statute. This seems to be every justice’s view. (Foster just doesn’t think that the natural or literal meaning of the statute is what the law is.) But we asked whether it is really so. We consulted our own linguistic intuitions and we looked up “willful” in the dictionary.

When we turned to Keen’s views on self-defense, we noted an oddity: he agrees that there is an exception even though it is not in the statute and, given his remarks about forcing the legislature to change bad laws, you would think he should not recognize it. As Patrick put it, he shouldn’t think that the courts ever should have made the exception in the first place. Maybe his view is that, after enough time, judicial decisions effectively become law even though, in his opinion, they should not. So he might be just grudgingly conceding that this is the way the law works.

That does raise a question about what he thinks he’s doing at the end. I think Aaron had a very astute observation: he knows he could effectively create another exception that would cover the spelunceans by voting to overturn their conviction. But he refuses on the grounds that this is improper. Is he, um, willfully insisting on his ideals in the face of the way the law actually works?

Key concepts

  1. The three questions for Keen and Tatting.
  2. How Keen and Tatting handle the self-defense exception.
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2014. It was posted February 20, 2014.
Philosophy of Law