The Speluncean Explorers

We structured our discussion around three questions for each opinion:

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


We were conflicted about Truepenny’s implicit characterization of the role of judges and his views about the place of justice in a judge’s decision making.

On the one hand, it is disconcerting that he takes such a minimal approach. Can judges perform their role just by reading statutes? And, in particular, should they take the attitude that justice isn’t their job? Gabe and Mollie pressed this side.

On the other hand, the statute does appear to be straightforward here. And, as Leo pointed out, it may well be reasonable for a judge to say that seeing that justice is done in this strange kind of case really is someone else’s job.


Foster advances two arguments for overturning the conviction.

  1. The defendants were governed by the law of nature rather than the laws of Newgarth.
  2. Even if the laws of Newgarth did apply to them, reflection on the purpose of the statute shows it does not apply to them.

While Foster begins with a point about justice, considerations of justice do not play a significant role in his arguments. Gabe thought that was misleading: he thought Foster made up his arguments to get the result that he thought was just. If so, justice is driving Foster’s thinking even if it is not apparent in his arguments.

The state of nature argument

Concerning the law of nature argument, we spent a lot of time talking about what it means to say that the law presupposes the possibility of coexistence. It seems pretty clear that the law makes coexistence possible. But why does that mean the law ceases when the possibility of coexistence ceases? The text itself does not have a lot of detail, so we tried filling it out. Maybe, as Riley suggested, it’s because no one is obliged to obey the law when doing so would put their lives at risk. The idea also might be that there is no point to legal rules that people will not, as a matter of fact, be able to obey. Or maybe the idea is a version of Foster’s other argument about the purpose of the law: we interpret the law in the light of its purpose and if cannot fulfill its purpose at all, we should conclude that it ceases to exist.

Peter asked whether it was really true that the law presupposes the possibility of coexistence. Can’t there be laws that require people to put their lives at risk (as in the military, say) or that govern the allocation of life-saving resources (like organ transplants)?

We also had some questions about the relevance and coherence of his claim that the spelunceans formed their own legal system. Lane and I didn’t think it mattered: all that matters is that they were not governed by Newgarth’s laws. Peter thought there was a contradiction between Foster’s claim that the law presupposes the possibility of coexistence and his claim that they formed their own legal system.

The purpose of the law

Foster’s second argument is that the law should be interpreted in light of its purpose. He asserted that the purpose of the law in question was to deter willful killing and also that deterrence was impossible in this case. That led him to conclude that the defendants did not violate the law.

The main point I wanted to make was that there is a difference between acting in self-defense and acting out of necessity. People who kill in self-defense kill someone who poses a threat to them. People who kill out of necessity do so because they have to in order to avoid dire consequences. Whetmore was not a threat to the others, so they did not kill him out of self-defense. But they did need to kill him in order to stay alive.

That matters because it complicates Foster’s argument. The courts in Newgarth all admit an exception to the statute: they allow what looks like willful killing in self-defense. (As Tatting will point out, they deny that killing in self-defense is done willfully.) Foster has to argue that this exception should be extended to the spelunceans on the grounds that the reasons for allowing the self-defense exception also apply to them.


Tatting was squeezed out, so we will have to start with him next time. Tatting has several interesting points about Foster’s law of nature argument, but I think we would not be best served by discussing them: they are pretty clear on their own. Instead, I propose that we start with his criticisms of Foster’s second argument, about the purpose of the statute. Then we will talk about Tatting’s own views about the nature of the law, the role of judges, and the place of justice.

Key points

What each justice believes about:

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


The “facts” of “The Case of the Speluncean Explorers” are clearly taken from several real cases involving shipwrecks. I put the court’s decision in one of them, Regina v. Dudley and Stephens, on Sakai.

As it happens, on my ride home I saw a Vox article (maybe ‘compilation’ is better term) on cannibalism. To make a long story short: it happens more frequently than you would think.