Philosophy of Law Spring 2018

More Spelunceans


We discussed the opinions of Tatting, Keen, and Handy.


When we returned to Tatting’s opinion, we mostly discussed his understanding of the law rather than his criticisms of Foster.

I think that Tatting is meant to illustrate the problems with what Hart called “formalism,” the idea that the role of a judge is to apply rules to cases (Hart 1958, 608). Tatting is looking for a formula or very specific statute that would enable him to decide the case (Fuller 1949, 631). When he cannot find such a thing, he runs into trouble.

Tatting is undoubtedly the hardest worker on this court. He found legal citations to support Foster’s opinion that Foster did not know about! But he is reluctant to evaluate the different legal sources he finds and he is completely at sea about what to do with his moral convictions about the case. Consequently, he cannot reach a decision.


Keen has some sharp remarks about Foster’s search for the purposes of a statute. We had an interesting discussion of this point. On the one hand, he has a point in saying that there is no single purpose behind any law. On the other hand, as Molly and Helena pointed out, Foster seems to have a point too. You can’t interpret what someone is saying without some assumptions about what they intend to do by speaking to you. The words alone aren’t enough. “That’s a nice car you have there” can be either pleasant or menacing, depending on what you think the person saying the words intends to convey. This is the lesson of Foster’s remarks about servants at the end of his decision: you have to have some sense of what someone means when they speak to you, otherwise you would drop the baby in the well and try to peel the soup.

Keen’s positive view is that when a statute has a plain meaning, that is what judges ought to use. (As with Truepenny, we don’t know what he would do with a case in the penumbra of a law.)

When you look at the dictionary defintion of “willfully,” you can find different meanings, some of which suggest they are guilty and others suggest they are not. Does this show the statute lacks a plain or natural meaning? Maybe not. Everyone on the court seems to think the plain meaning is pretty obvious. That doesn’t mean they’re right, but it’s evidence.

The self-defense exception is awkward for Keen. There is no way that it is in the plain meaning of the statute but the courts have clearly recognized the exception for years and Keen accepts it. All he says is that it cannot be extended in the way that Foster wants.

In the end, Keen is willing to say that the Court should take even bad laws literally on the grounds that doing so would force the legislature to revisit and improve them. Adam thought he had a point there. After all, that statute really needs some work! You can only count on the courts to pretend it means things that it clearly doesn’t say for so long.


Most people think Handy is unprincipled in a bad way. So I tried to put the best face on his opinion. Handy thinks judges should use common sense and popular opinion. Governing wisely is more important than legal reasoning for him.

My own opinion is that he should have jettisoned the part about popular opinion. What would he do if the population wanted to execute a clearly innocent person? I hope he would say no. If so, common sense trumps popular opinion.

Handy’s colleagues have already made the case that judges should stick to their institutional roles. In their view, governing wisely is a job for the government as a whole, judges are only one part of the government with a specific task to play, and they should stick to their task.

On the other hand (sorry!), Handy tells us that they know this is not actually the way it is going to work. If justice is to be done, they are going to have to do it.

One last remark. Almost everyone in this society believes that it would be wrong to execute the explorers. Certainly everyone on the court believes this. But no one on the court agrees about the law. One common objection to mixing law and morality is that the law should be predictable and interjecting morality makes it unpredictable. The opposite seems to be true in this case.

Our vote

We had six votes for guilty and fourteen for not guilty.

Truepenny got two votes for best decision, Foster got eleven, Tatting got two, Keen one, and Handy none. (I’m always the only one who likes Handy.)

It will be interesting to see if anyone changes their mind in the course of writing the paper!


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

Hart, H. L. A. 1958. “Positivism and the Separation of Law and Morals.” Harvard Law Review 71 (4): 593–629.