Main points
You should know what each justice believes about these questions.
- What is the source of law?
- What is the role of the judge?
- What about justice?
“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:
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 Brandon put it, he seems to regard justice and morality as a hot potato: he is anxious to pass the responsibility to someone else.
This raises tricky 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, it is obviously not acceptable for public officials to ignore the morality of their actions. There are limits to “I was just doing my job” as an excuse.
Foster advances two arguments for overturning the conviction.
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.
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? 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.
Brandon said that the argument is not necessarily that this is a universal truth. Rather, he said, it follows from the fact that Newgarth’s laws are based on a social contract. If the point of the social contract that founded the laws of Newgarth was to make coexistence possible, then the contract is dissolved once coexistence is not possible. (Clever! I haven’t heard that idea before.) Dan said that the law presupposes coexistence because if your survival is at stake, the law won’t matter to you one way or the other; the law can’t effectively govern our behavior in these cases.
Hutch, on the other hand, didn’t think that Foster’s assertion was correct: he denied that the law presupposes the possibility of coexistence. After all, the law still governs people with nothing to lose: you can’t go on a crime spree when you are diagnosed with a terminal illness. People who are in line for an organ transplant can’t all coexist with one another: they all need the same limited number of organs. But they can’t bump one another off to move up on the list. It’s also the case that the law can influence the behavior of people whose lives are at stake. For example, it can threaten their family members. Finally, you might think that the purpose of the law is something other than making social coexistence possible. Maybe it’s there to see that justice is done, for instance.
I gave my own opinion 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.
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.
You should know what each justice believes about these questions.
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.↩︎