We talked about the first three verdicts in the case of the Speluncean Explorers. Specifically, we laid out and discussed the views of the first three justices on these questions:
Truepenny holds that the law is found in statutes, that is, the written laws that are passed by the legislature.
I say that because that is all he appeals to in rendering his verdict. By contrast with Tatting, he gives no consideration to court decisions, history, or legal education. Why? Either he doesn’t think they’re relevant or he doesn’t think they could possibly alter the apparently clear wording of the statute.
Truepenny believes that carrying out the sentence would be unjust. But he does not think it is necessarily the judiciary’s role to prevent the unjust result. Instead, he urges the executive to pardon the defendants, thereby effectively nullifying his own decision.
In discussing Truepenny’s view, we talked about the advantages and disadvantages of both of his views about the role of judges, that they should disregard past court decisions and they should restrict themselves to the law, even at the cost of allowing unjust results.
In Foster’s opinion, we cannot understand what the law is without understanding the assumptions and purposes of particular statutes and the legal system as a whole.
Consequently, his first argument turns on a broad claim about the presuppositions of the legal system. His second argument rests on a claim that the purpose of the statute is to deter murder.
Judges should find and articulate these assumptions in order to make their decisions.
Albert defended Foster’s first argument, about the state of nature. He said that the rules of a society apply only to those who are reasonably secure. Among other things, there’s little point in expecting people to comply with rules at the cost of their lives. Others were less certain about acknowledging this. They worried about illegitimate uses of this kind of argument.
We also spoke briefly about whether it was obvious that the purpose of the law is to deter killing. Calum, quoting Keen, said he thought it was at least as likely that the purpose was simply to punish killing. Foster may be right that we should interpret laws in the light of their underlying purpose without having proved what the purpose is.
Tatting finds the law in specifically legal institutions. He relies on judicial decisions and legal education in deciding how to apply the statute to the case at hand.
Tatting digs up a lot of material but lacks the means to assess it. He has no deeper view about the nature of the law and so cannot weigh the conflicting materials that he found. Consequently, he cannot make a decision at all and abstains.