Philosophy of Law Fall 2019

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 abstract theories 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. As a student in last year’s class put it, he seems to regard justice and morality as a hot potato: he is anxious to pass it to someone else.2

In fairness, a charitable way of describing his position is that achieving justice is the job of the government as a whole and that it is important that he stick to his job within the overall scheme of government.

So his opinion raises questions about moral integrity and institutional roles. On the one hand, there are good reasons for asking judges to stick to the law rather than deciding cases based on their possibly idiosyncratic moral beliefs. On the other hand, there are obvious problems with public officials ignoring the morality of their actions. “I was just doing my job” only goes so far.


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. I think Fuller threw in a little misdirection there.

Foster’s 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. Ji Min got us started with the first thing we have to ask: what does “coexistence” mean in this context? Foster really should have said something about that since it is the centerpiece of his argument! From context, I think we can infer that it means something like this. “Two or more people can coexist only if it is possible for both to live at the same time. For the law, two or more people can coexist only if it is possible for both to live while obeying the law.”

It seems pretty clear that the law makes coexistence possible in many cases where it would otherwise be a dicey proposition. But why does that mean the law ceases when the possibility of coexistence ceases? Foster isn’t helping us because he doesn’t explain why he thinks that this is so and none of the other judges press him on this point. So we have to do the work of arguing both for and against it ourselves.

Caroline said what I would have said here. When people can’t coexist while obeying the law, there is no way for the law to govern their behavior. The idea is that people will put saving their lives ahead of obeying the law so there is no point to laws that tell them to do otherwise.

We were not sure how far to take this. Caroline pointed out that there are lots of situations where people have conflicts with one another but are still expected to follow the law. I gave an example to illustrate the point involving organ donor lists. Those who are lower on the list cannot coexist with those who are higher on the list. Does that mean that the laws against murder don’t apply if they want to eliminate the people ahead of them?

Sarah thought that Foster’s position could be distinguished from the organ donor list. The law prohibits violence in ordinary cases like organ donor lists but it does not apply to unforeseen emergencies, like the one involving the unfortunate Spelunceans. Caroline said that if you were convinced the Spelunceans were no longer in the society, then you might have a similar way of distinguishing their case from that of people on an organ donor list.

I think that the arguments between Foster and Tatting about whether the court should respect the law of nature or the supposed social contract reached in the cave are 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 about these alternative laws as it has no standing to decide cases argued under some other society’s law. So the only thing that matters for the purposes of this court is whether the Spelunceans were governed by Newgarth’s law or not.

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. 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 denies that the exception for self-defense can be extended in this way for two reasons. First, the law schools teach that when people act in self-defense they do not do so “willfully” because they act by impulse rather than intentionally. Since the defendants acted deliberately, this analysis of the self-defense excuse would not apply to them. Second, he found a case, Commonwealth v. Valjean, in which the court denied that necessity is an excuse; thus it convicted a starving man who stole a loaf of bread.

Had Foster had an opportunity to reply, you can be sure he would challenge the thinking behind these points. If you’re defending Foster’s position, you can do that yourself.

Caroline suggested that Foster was wrong in the way he framed his argument. He could have argued that they did act in self-defense. Her idea is that each one of them was in the following situation: either I kill Whetmore or one of the others might kill me. Clever! I’ll leave it to you to decide if that counts as genuine self-defense or not. (Although, since the relevant question is whether it counts as genuine self-defense for the purposes of interpreting the law of Newgarth and the laws of Newgarth are officially silent on the nature of self-defense, you might find it very difficult to answer that question.)

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.↩︎

  2. Credit for “hot potato” goes to Brandon.↩︎