Philosophy of Law Spring 2024

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 will structure 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.

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.


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

This is the argument, as I understand it.

  1. The law is predicated on the possibility of coexistence; when that is impossible, the laws do not apply (620).2

  2. Since that was not possible here, the spelunceans were under the law of nature.

  3. The spelunceans made their own legal system that was as valid as the one in Newgarth.

Each point is worthy of discussion:

  1. What does it mean to say that the law is predicated on the possibility of coexistence and why should we think that is true?

  2. Were the spelunceans incapable of coexisting? If so, what does it mean to say they were under the law of nature?

  3. Why does it matter whether they made their own legal system?

Foster’s purpose of the law 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 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.

  1. The purpose of the rule against murder is deterrence (Fuller 1949, 625).

  2. There is no deterring someone who acts in self-defense, so that is why the statute does not apply in cases of self-defense.

  3. There is also no deterring someone who acts out of necessity. (see the paragraph that starts “When the rationale of the excuse …”)

  4. Therefore, the prohibition on murder does not 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.

  1. 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.

  2. 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.


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 law schools to tell him what the law is. He’s a legal professional through and through.

Despite all his hard work, Tatting cannot reach a decision. Why? That is the major question about him and his approach to the law.


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.)

One thing we will want to talk about is whether the statute has a plain meaning. The word “willfully” bears a lot of weight. I put some definitions on the sakai site. Do they all support a guilty verdict?

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.

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.


Handy thinks judges should use common sense and popular opinion; he treats them 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. Is anything else at stake her more important than that?

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. I think that is important for Handy’s thinking.

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.
Hart, H. L. A. 1958. “Positivism and the Separation of Law and Morals.” Harvard Law Review 71 (4): 593–629.

  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. Cessante ratione legis, cessat et ipsa lex, the reason for a law ceasing, the law itself ceases.↩︎