Philosophy of Law Fall 2019

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 looks to court cases and, as Ross pointed out, law schools, to tell him what the law is. He’s a legal professional through and through.

As for justice, as Maddie said, it shouldn’t be relevant. Court cases should be enough. Even though justice shouldn’t play a role in determining his decision according to his understanding of the sources of law, it sure seems to be important. We know that Tatting can’t make up his mind. But why? His understanding of the law seems to me to lead him to the conclusion that they’re guilty. He is reluctant to say that because he thinks it’s morally wrong; at least, that’s how I read the end of his opinion.

Sienna thought that he really ought to think more deeply about the court cases. Isn’t there a morality that underlies those decisions? I think she’s getting at one of Fuller’s points. He is critical of Tatting’s refusal to look beneath the surface of the cases he cites. He thinks that is what leads Tatting into a dead end.

That said, I don’t understand why Tatting was the one who imploded when his view of the law conflicted with his moral views. Truepenny and Keen face the same problem but they managed to make up their minds without melting down. I think there is something about Tatting’s views that Fuller wanted to single out here, but I’m not sure what it is. (Then again, maybe Fuller just picked Tatting because he’s in the middle of the article. You have to be careful not to overthink these things.)


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. Maybe that means it is obvious or that it’s obvious in Newgarth. We had an extensive discussion of the question.

The self-defense exception is awkward for Keen. It cannot be extracted from 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: self-defense and necessity are two different things, after all. But that’s kind of changing the subject. If Keen is correct, there shouldn’t be an exception in the first place. If we can admit that exception, why not others?

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.


We had to zip through Handy. He thinks judges should use common sense and popular opinion, which he treats as amounting to the same thing. 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, following common sense is not the same thing as following popular opinion. If he would side with popular opinion anyway, then so much the worse for Judge Handy’s opinions.

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.

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 took a vote and I think it was roughly 2:1 in favor of not guilty, with a hefty number of abstentions. There wasn’t much love for Truepenny or Handy, but the middle justices all had their fans. I’ll try to remember to report back after the papers come in.


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.