Philosophy of Law Spring 2018

The Speluncean Explorers


“The Case of the Speluncean Explorers” describes a fictional court trying to decide a fictional case.1 Each judge has a different understanding of the nature of the law, which makes this article a great way of talking about the concrete implications of one’s answer to very abstract questions about the nature of the law.

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?


Truepenny has an attractively straightforward approach: the statute clearly says they are guilty and that is pretty much all there is to it. Unlike some of the other judges, he cannot be accused of overthinking the matter or making things more complicated than they really are.

However, his attitude towards justice gave some of us pause. Truepenny clearly believes that what he thinks is the legally required verdict is the morally wrong verdict. So he spends a lot of time asking the Chief Executive to commute the sentence that he proposes to affirm in his own decision.

Nyati thought this makes sense. Megan and Nico took the other side. In our straw vote, Megan and Nico came out ahead 17 to 3. But discussion shifted Helena’s vote so it was 16 to 4 by the end of class.

Why take straw votes? Because people’s minds genuinely change as they work on this and it’s interesting to chart how they move. Obviously, no one is committed to stay with the opinion they start with. If thinking and discussing the matter doesn’t change anyone’s mind, what’s the point?


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, it seems to me that considerations of justice do not play a significant role in his arguments.

The state of nature argument

Concerning the law of nature argument, we spent some 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?

Adam pointed out that we do not think the law ceases to apply in the middle of a conflict, such as a riot. The state can’t intervene directly to save you in this sort of case, but it still reserves the right to punish those who violate the law. Why would the cave be any different?

I gave my own opinion that a lot of the argument between Foster and Tatting about whether the court should respect the supposed social contract reached in the cave was irrelevant. It seems to me that the only point Foster needs to establish is that the laws of Newgarth did not apply to the Spelunceans. He does not need to show that there was some other law, whether a law of nature, social contract, or what have you, that did apply to them. After all, even if he had succeeded, the court would not have been able to say anything as it has no standing to decide cases argued under some other society’s law.

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. They are not sure exactly how this is consistent with the statute, but they take it for granted that it is. (As Tatting will point out, the way the exception is taught in the schools involves denying that killing in self-defense is done willfully; this seems very shaky to me and none of the other judges express much enthusiasm for it.) 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.

Main points

You should know what each justice believes about these questions.

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


Fuller, Lon L. 1949. “The Case of the Speluncean Explorers.” Harvard Law Review 62 (4): 616–45.

  1. 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.