“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 will structure 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.
We have to do some work to figure out what he thinks about the role of judges and justice. He does not explicitly discuss either point, but there are implicit positions in his opinion. I find it helpful to think about what he might think about the role of the judiciary in the government as a whole.
Our discussion focused on justice. Truepenny finds the law in the statute; he might have a more sophisticated view, but he doesn’t think it’s necessary to go beyond the statute in this case. Does that mean he thinks justice consists in interpreting the statute correctly? Jayden and Cathy didn’t think so. Madeline started out suggesting that he might think this but clarified her remarks to say that Truepenny thinks that justice is something that the government as a whole is supposed to achieve. So if following the statute would be unjust in this case, the Chief Executive should pardon the defendants or commute their sentences.
Lilly and Lola found echoes of Hart’s discussion of the Nazi case and Dworkin. Indeed! We’re pulled in two directions in all these cases: we want judges to stick to the written law but we also want them to see that justice is done.
Foster advances two arguments for overturning the conviction.
The defendants were governed by the law of nature rather than the laws of Newgarth.
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.
This is the argument, as I understand it.
The law is predicated on the possibility of coexistence; when that is impossible, the laws do not apply (620).2
Since that was not possible here, the spelunceans were under the law of nature.
The spelunceans made their own legal system that was as valid as the one in Newgarth.
Each point is worthy of discussion:
What does it mean to say that the law is predicated on the possibility of coexistence and why should we think that is true?
Were the spelunceans incapable of coexisting? If so, what does it mean to say they were under the law of nature?
Why does it matter whether they made their own legal system?
In our discussion, Nico asked whether being in the state of nature is an objective condition or a subjective one. That is, if there had been a tunnel out that they did not know about, they would not have been in the state of nature as a matter of objective fact but they still might have believed they were. I don’t know the answer. It might turn on the next issue: why the law depends on the possibility of coexistence.
We considered two reasons why the law might be predicated on the possibility of coexistence.
No one will comply with a law if the cost of doing so is one’s life.
The purpose of law as a social institution is to enable us to live together peacefully.
Cathy and Jayden gave the first reason. Max had a really clever observation about the second one but I can’t remember exactly what it was and my notes aren’t detailed enough. Max: remind me!
Update 10/5: Max reminded me (on the 27th of September … we’re not processing email quickly here).
Foster claims that all of Newgarth’s statutes presuppose peaceful coexistence. He then uses this argument to say that since peaceful coexistence was impossible for the spelunceans, Newgarth’s statutes don’t apply to the case. The class seemed uncomfortable with this argument, since Foster does not prove that all laws must presuppose coexistence. I pointed out that Foster’s argument doesn’t require laws to presuppose peaceful coexistence; instead, Foster is just observing a correlation between Newgarth’s statutes and the presupposing of peaceful coexistence. Put differently, Foster is talking about the statutes in Newgarth as they stand today, and not making a philosophical argument that all Newgarth laws must presuppose peaceful coexistence.
Even if he does make a philosophical argument about the necessity of presupposition of peaceful coexistence, it isn’t strictly necessary to support his peaceful coexistence argument.
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.
Foster maintains that several examples of accepted legal practice that confirm that statutes should not be read literally.
The parked car case (Commonwealth v. Staymore). Here the driver couldn’t move the car and so the court held he could not be convicted of a parking violation.
The misplaced “not” case (Fehler v. Neegas). Here the courts tacitly amended a statute to put a “not” where it clearly belonged.
The self-defense exception to the statute in question. The statute says “Whoever shall willfully take the life of another shall be punished by death” (Fuller 1949, 619). While the statute makes no provision for self-defense the courts do not convict people who kill in self-defense.
The lesson Foster draws is that judges have to look to the purpose of the law. Here is how he applies that lesson to the case at hand.
The purpose of the rule against murder is deterrence (Fuller 1949, 625).
There is no deterring someone who acts in self-defense, so that’s why the statute doesn’t apply in cases of self-defense.
There is also no deterring someone who acts out of necessity. (see the paragraph that starts “When the rationale of the excuse …”)
Therefore, the prohibition on murder doesn’t apply to this case either.
Point 3 trips people up. 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, for example, denies that the exception for self-defense can be extended in this way. He gives two reasons.
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.
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.
In our discussion, Lilly said that she didn’t think it is obvious that the rationale for self-defense is the impossibility of deterrence. The law could deter you from intervening to save someone else’s life from an attacker, but the excuse would be the same as it is in cases of self-defense. Clever! But we don’t know that this would work in Newgarth. Maybe coming to the aid of a third party is prohibited under this statute. It would be morally odd, but morality and the law don’t always coincide.
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.↩︎
Cessante ratione legis, cessat et ipsa lex, the reason for a law ceasing, the law itself ceases.↩︎