Legal Implications of the Spelunzian Case

This paper is the Philosophy of Law. The current module is the Case of the Spelunzian Explorers. The objectives of this module is to understand the case of the Spelunzian Explorers and what it teaches us about the application of different legal theories. This module was written by Garima Goswami, an independent research scholar in New Delhi. I'm Akash Singrator from the Lewis University of Rome. The case of the Spluntian Explorers is a paper originally written by Lon Fuller and published in the Harvard Law Review in 1949. Since that time, this hypothetical case has drawn so much theoretical interest that besides the five opinions originally written by the Explorers, presented in Fuller's paper, several later publications have presented numerous other opinions taking up the facts of this very same case. Let's discuss the facts of the case. This is a case of murder and cannibalism. While this is a fictionalized account by Lon Fuller, it's based on a real case of cannibalism that had occurred some years earlier. In the fictionalized account, the four accused were trapped in a cave. A Spelunkian explorer or a Speluncian explorer means someone exploring caves. Were trapped in a cave along with a person named Roger Wetmore. He was also one of the people trapped. They were trapped without food. and rescue efforts were underway. So these five explorers were trapped. They had no food. They were in the process of being rescued, and in that process, they could communicate with people in the outside world, but they weren't free to get out. Medical experts advised that there was little possibility for the five to survive an additional 10 days without food. Roger Wetmore initially suggested that they should keep kill and eat one of the members of the group in order to survive. Now, no rescuer, no doctor, judge, member of government, or priest, all of whom could speak with the members of the explorer group trapped in the cave, none of them offered advice when Wetmore and the others requested them how should they decide which one of them should be killed and eaten. They decided, therefore, that they should just throw down. dice. But before the actual event of throwing the dice, Roger Wetmore, who had originally proposed the idea, decided he couldn't go through with it, and he withdrew. But the others continued, and they wouldn't let Roger Wetmore out, of course. He had to be included, so they threw the dice for him. Well, unfortunately for Wetmore, the dice went at his disadvantage, and he was was killed and eaten by the four accused. Now, during the rescue efforts themselves, ten rescuers were actually killed by landslides. Explorers, these Spelunkian explorers, the four who lived, were rescued on the 32nd day. Wetmore was killed and eaten on the 23rd day, nine days earlier. It seems, therefore, if the medical practitioners were correct, that they might have all... five survived if they had not eaten wetmore on that day. Now, what does the law state? What are these four accused being convicted of? The law states, whosoever shall willfully take the life of another shall be punished by death. Now, the purpose of this case is meant to introduce students of the philosophy of law to diverse legal theories. All the diverse opinions of the judges and scholars in this case represent different attitudes, different views of legal theory. For example, there's natural law theory, there's consequentialist theories, there are natural rights theories, feminists, positivists, textualists, proposivists, realists, pragmatists, contextualists, critical race theorists, minimalists, and process theorists, all represented not in the original five lines. judgments that Lon Fuller gives, but as I had mentioned, many subsequent judgments have been issued in respect to this particular case, the facts of which I just explained to you. So this case is very useful for students of the philosophy of law to think about the real practical consequences of the theories that they have been considering. What would natural law say about how to decide in this case? What would Legal positivism say about how to decide in this case and critical race theory and feminism so on were other approaches that were subsequently applied to the facts of this case. Let's start with Lon Fuller's original account with the five judges, and then as we continue we might supplement this with other judgments that were offered later on. after Lon Fuller's very influential 1949 paper. Now, the facts of this case when it went to trial are that originally the four... men are accused of murder and they are sentenced to death. So the case that Lon Fuller presents us is one where that sentence is being challenged in the Supreme Court. So the Supreme Court has to decide whether to uphold the sentence of death of the lower court or whether to overturn that. Upon appeal, this case was decided by a bench of five judges. Two of these judges upheld the conviction. They said, yes, they committed murder, they should be sentenced to death. Two of the judges overturned it. They said, no, we shouldn't have the death penalty, they did not commit murder as per the law. One of the judges recused himself. To recuse oneself means to step down, to refuse to engage in the process. Generally, judges recuse themselves if they are known to the people who are challenging them. case. In other words, if they are personally known to the prosecution or they're personally known to the defense, they're no longer impartial, so they step down and recuse themselves. In this case, the judge who recused himself doesn't step down because he knows anyone. Rather, he steps down because he admits that there is no possible way to decide this case. Since it was a tie, two against two, the natural course of the judicial judicial process is that the original was upheld. So the four men are sentenced to death and they are killed by the state. Let's discuss what these five judges have to say about this case. The chief justice is named True Penny. Chief Justice True Penny first starts by reiterating what the law states. The law states this, whosoever shall willfully take the life of life of another shall be punished by death. Considering, as True Penny does, law to be law, in other words, taking the viewpoint of an exclusionary legal positivist, True Penny states that the case of the Spelunzian explorers does not allow for any exception. On what basis, the law is very clear, on what basis should we say, no, they did not willfully take the life of another. No, they should not be punished by death. Articulating the positivist position, Chief Justice True Penny says, we have no choice except to uphold the conviction and allow the death of these accused. In this way, the positivist shows complete regard and respect for the law. However, Justice True Penny does state that While the judges are bound by the law, the chief executive, the president, for example, has complete power to pardon. So the chief justice states, while passing his judgment of conviction, that the chief executive could be instructed to exercise clemency given the peculiar circumstances of this case. The next judge to give an opinion is Justice Foster. Now Justice Foster used uses the natural law tradition to inform the way that he thinks about this judgment. In employing and explaining the natural law tradition, he seeks the acquittal in this case. So as a consequence of being a natural law theorist, he's quite critical of Chief Justice Truepenny's logical positivism. As you'll remember from earlier modules on the distinction between legal positivism and natural law. For many centuries, these traditions have been antagonistic to one another. Justice Foster believes that the maxim, the reason for the law ceasing, the law ceases itself. In Roman law, this was referred to as cesante ratione legis, cesat et ipsa lex. What this means is that we have law for a reason. And if that reason disappears, the law disappears. Now, what is this other than... The basic natural law sense that the law itself is only there justified by something outside of the law. So this is very different from the positivist view that law is self-contained. In this view, the natural law view of Foster, since the reason for that law to be there doesn't really operate in this case, we can almost think about these four accused as being outside the state. and back in the state of nature. Now, Justice Foster also mentions that the absolute value of life, which we seem to be up against in this statute against taking a person's life, is overrated in this particular case. Consider the irony that in the rescue efforts to rescue five explorers, ten rescuers lost their lives. So, Justice Foster said, says, those rescuers who went in to help the others knew the risks they were taking. If we allow 10 to die for the sake of rescuing five, how is it that we can suddenly not allow four to live at the expense of taking one? Justice Foster, in his third argument, finds that this is a case of self-preservation. Since it's a case of self-preservation, we should employ the same logic as that used in the... the case of self-defense. In other words, we can acquit someone accused of murder if we realize that that person had no choice. It was an act of self-defense and therefore he conducted that killing. That kind of killing in self-defense is not murder. Justice Foster says in the same way we should consider that these four people were trying to preserve themselves and so it's very similar to a case of self-defense. all of these reasons, Justice Foster acquits, and he suggests that there should be no conviction. The third judge to speak is the one who recuses himself. He stands down. Basically, he finds no way to distinguish the principles according to which we can decide this case in a free and rational manner. So he recuses himself from the case, but he doesn't do that until he criticizes Justice Foster's natural law position. He argues that if the defendants were right to kill... Whitmore, then Whitmore himself would be unable to plead self-defense if he tried to kill someone trying to kill him. So imagine that the story played out differently. The four rolled the dice, Whitmore lost, the four go to attack Whitmore to kill him in order to eat him. Well what if Whitmore picked up a rock and bashed one of them in the skull and killed that person? Isn't that really what self-defense is all about? If, according to the previous judge's argument, the four were trying to preserve themselves so it's a kind of self-defense, Justice Tating said if they get self-defense, that means Whitmore, who is really defending himself, couldn't claim self-defense. Therefore, Justice Foster must be wrong about the idea that we can let these four off because self-preservation is like self-defense. The next argument that Tating suggests is that in a precedent case, in other words, in a case that was decided before by the Supreme Court and to which the courts are always bound, this is a principle known as stare decisis, that previous cases bind the decisions of judges in future cases. In a previous case, Commonwealth v. Valjean, this was a case in which the very same court did not have a clear answer to the question of whether the court was going to approve the decision. not accept the justification of hunger and almost starvation for a person accused of theft. So the person accused of theft said, I was starving and I had no choice, therefore I had to steal the bread. But the court said that that is not a justification for your action and they convicted the thief on. the charge of theft. Now, if you can convict a thief on the charge of theft expecting him to starve to death, then how can you not convict these four accused on the charge of murder because they were going to starve to death? Finally, this judge points out that while the statute concerning murder requires a willful act, so if you remember in the law it says willfully killing, it can't be compared with self-defense. Because self-defense is an impulse response for self-preservation. In other words, if someone is about to attack you, and then you kill that person, it's an impulse to preserve your life. That's what self-defense is all about. This, however... is a premeditated, willful act that was decided after deliberation between these Spelunzian explorers. If a decision is made after talking something out and deliberating about it, That's very different from a spontaneous act where you're trying to protect yourself. For these reasons, Justice Foster's natural law approach is heavily critiqued by Justice Tating. Nevertheless, Justice Tating can't find principles upon which to decide whether to convict or to acquit. He just knows that the natural law tradition is wrong, or he just feels that the natural law tradition is wrong. And he steps down from the case. The fourth judge. to make a decision is Justice Keene, and Justice Keene favors the death penalty. Justice Keene is also critical of Justice Foster's views. However, though he decides, just like Chief Justice Truepenny, that we should uphold the conviction and give the death penalty, he is nevertheless critical of Chief Justice Truepenny's suggestion that he will direct the Chief Justice. executive to show clemency or to pardon them. As per the law, according to Justice Keene, the Chief Justice has no right, no prerogative in law to direct the Chief Executive to do anything. After all, these powers are separated. The job of the Chief Justice is to decide. The job of the Chief Executive is to make his own decision whether he will pardon or not. So Chief Justice Truepenny, in stating that he will direct the chief executive to pardon is violating the judicial process. But in siding with Chief Justice True Penny, Justice Keene says that this case can't be an exception due to self-defense. This is because, according to Justice Keene, the scope of self-defense is applicable in cases of resisting an existent threat to the party's own life. That's when we allow self-defense, when we admit that the person who defends himself by killing killing has an existential threat to his life by the person who's attacking him. In this case, Whitmore poses no threat to the people who kill him. The threat of death for the four accused comes from something beyond Whitmore's control. So to say that we can let these people off because of self-defense is to suggest that Whitmore was the one responsible for their situation. which is obviously not true. Therefore, Justice Keene upholds the death penalty. The fifth and final judgment made in Lawn Fuller's Spelunzian Explorers is made by Justice Hardy. Now, Justice Hardy does something very unique and unusual. He appeals to public opinion and believes that the defendants should be pardoned. Now, what we learn from Justice Hardy is he had indirectly knowledge that the chief executive would not pardon these accused if they were convicted. So with that in mind, he points out that this case has been publicized not only nationally, but internationally. The entire world is watching, and the polls that have been taken all suggest that more than 90 percent of the public believe that the people on trial should be pardoned. So his argument is a populist appeal. We all know that judges are the least democratic aspect in the overall governance process. Judges are appointed, they're not elected, they're not representatives, and their job is not to make law. That's the job of the legislators. Therefore, Justice Hardy thinks, why should we go against what 90% of the people want when they clearly want these people? to be freed and we clearly know that the chief executive is not going to pardon them. So he decides that these men should be acquitted. As I had mentioned, however, two decide for acquittal, two decide for conviction, one recuses, it's a tie, and therefore, according to the way the law works, the original conviction is upheld and the people are sentenced to death. In something referred to as... further proceedings by the legal scholar Anthony D'Amato, we're asked to imagine that after this decision is brought out by the Supreme Court, a special commission is set up... by the president, the chief executive, in order to get three more opinions about what should be done so that the president can decide whether to pardon these four who are accused. who are due to be hanged or not to pardon those four. Now, these three judgments that come represent three further considerations or three different kinds of legal theorization of this problem. These, however, are legal scholars, professors, and not judges. So the committee that the president or the chief executive has convened is a committee of legal scholars or professors. rather than judges. The judges have already decided. Professor One does not favor clemency, so he doesn't want the president to pardon these accused. He believes that the defendants committed murder willfully, out of self-interest. In fact, they included Wetmore, who had opted out of the plan in order to increase their own chances of survival. So think about this. When the five of them were there, Wetmore said, said, I opt out. Why did they force Whitmore's inclusion? They forced it because they wanted to increase, in terms of probability, their own chances of survival. Isn't that true? Because if only four of them were included, they have a 25% chance of being put to death. But if they include Whitmore, each of their chances of survival is 20%. chances of survival increases. Therefore, Professor One says that the defendants murdered out of self-interest. They included Whitmore to preserve their own lives, and therefore he does not think that the president should pardon these people. Professor Two, however, favors clemency. He thinks that the president or the chief executive should pardon these people. His argument is that the statute regarding murder was not actually violated. His emphasis is on the idea of life. And he says that the executioner, the person who's going to put these four to death, is also willfully taking the life. Right? So if these four people are... to be put to death, they have to be put to death by someone. The person who is putting them to death is the executioner. The executioner, according to what the law states, is willfully taking the life of another. Therefore, the executioner should be put to death. Now, obviously, we can't put an executioner to death, right? It's the job of the executioner to do that. So how do we do it? We don't read that law precisely as encompassing every situation. We understand there are different ways. kinds of situations. So Professor 2 says that this is precisely one of those different kinds of situations. So just because we don't follow the letter of the law in the executioner's case, it opens up the possibility of not following it in the case of the four accused. Professor 3 recommends that the sentence of the defendants should be reduced from death to compulsory service in a medical facility where they can help save other lives. So Professor Three believes that the defendants are neither guilty nor innocent of committing murder, because according to the letter of the law, they're guilty. According to the extenuating circumstances, they are not guilty, but they're certainly not innocent. So he suggests that there can be something in between guilt and innocence. That's a kind of culpability. That culpability requires rectification, but the rectification doesn't need to be death. Death is punitive. That rectification can be a kind of rehabilitative act. In this case, he says, these people... should spend time in a hospital helping others to live. As I had mentioned, the original case presented by Lon Fuller in the Harvard Law Review excited so many legal scholars and practitioners that people throughout the years continued to build upon the case, such as the one that we had just spoken of, where the three legal professors of law are asked to give their opinion. Much later, there was another book produced, entitled The Case of the Spelunzian Explorers, Contemporary Proceedings. So there was another set of fictional judgments produced, set in the book. Seven fictional judgments, each of which presented once again new theories of law that should be used to interpret this case. We're not going to go through all seven views, but I will mention the ones that are most important. interesting and add new perspectives of legal theory. Justice Naomi Khan and Justice Mary Coombe, both feminists, suggest a retrial with a jury. So this is a more democratic procedure. of how this decision should be made. It shouldn't be made just by judges, but it should be made by a jury of the accused peers. Justice Calmore, who is a critical race theorist, spends his time condemning the death penalty, because as we all know, in the United States, for example, the death penalty is predominantly practiced against blacks and minorities, and there are very few people who are white or belong to the minority. majority who are ever subject to death. The same is true in India. Critical race theorists in India argue that the people who are subjected to death in India are preponderantly poor and of marginalized communities. So instead of weighing in on how the judgment should be made, this critical race theorist judge condemns that we have a death penalty at all. judge named Justice Green confirms the conviction. Now Justice Green's argument is very interesting because it represents a kind of green position. In other words, Justice Green refers to a prior case, a precedent, Commonwealth versus Valjean, which I had discussed. In that case, pardon was not granted to a poverty-stricken defendant. And so he affirms the conviction of this group too. His argument is, who is it? that goes exploring in caves. Is it poor people, marginalized people? No, it's clearly members of the upper class. Now, these people have the money to buy equipment, the money to engage in this sort of leisure. And yet, the same court will condemn a poor man to prison for stealing bread and yet acquit rich men for committing the crime of murder. He says we can't do something like that. have to uphold this conviction and apply the same standard to these rich as we apply to the poor. Other judgments, Justice Miller, Justice Paul, Justice Stein, reverse the conviction. The first on moral grounds. The second doesn't believe a crime is committed. The third by an appeal to moral intuition and the failure of the judges to have given an opinion when the defendants were in a dilemma. You remember that in the facts of the case, they are told by the medical expert that they They won't live more than 10 days. Whitmore says, okay, we're going to kill someone. How should we decide to do it? No response from the judges, from the priests, from the chief executive, from the doctors, from the rescuers. They're left to decide on their own. So what right do the judges now have to convict them when they refused to advise them when they were asked? In addition to what we've just discussed, the seven views. in the contemporary proceedings, more fictionalized accounts of what different legal theorists, feminist, critical race theorists, and so on would decide. The legal theorist Peter Suber has presented another nine new opinions. In these other nine new opinions, a diverse array of considerations are brought for different opinions of the nine new judges on whether to convict, whether to convict but not uphold the death penalty, whether to acquit entirely, or other alternatives. For example, some of the new opinions offer that this is a case of preventive killing. Some of them offer a new position altogether. One should die and not kill. So a radical nonviolent opinion is introduced into the other alternatives. Some maintain a dichotomy between law and morals, in other words, represent the classical positivist view. A feminist legal theorist argues for acquittal, and she says, probably we would have acted just like the defendants did. So in this case, they want to democratize and empathize. Finally, we turn to a unique way of addressing this case. It's called the case revisited. Now, the case of the Spelunkian explorers experienced its 50th anniversary because Lon Fuller had published it in 1949. So 50 years later, in an innovative way, six actual legal theorists don't create fictional accounts of judges or scholars of what they would say. Rather, they actually decide the case. And I think this is a very important way of seeing how legal theory plays out. in practice. Among them, the well-known theorist Cass Sunstein. Cass Sunstein is a textualist, and according to this idea of legal interpretation, textualism, Sunstein's argument is that he supports conviction because no absurdity will result in reading the statute. in a manner that gives you conviction. So the statute says that anyone who willfully takes a life will be found guilty of murder and sentenced to death. Sunstein's argument is, let's stick to what the text says. we want to go against that reading of the text that supports conviction and death, then and only if that reading of the text produces absurdities or conflicts in the nature of the text. of law. It doesn't produce any conflict in the nature of law. No absurdity results from reading the law in this textual way and therefore, Sunstein suggests we have to uphold this conviction. Alan Dershowitz, the very famous Harvard law professor, on the other hand presents a case for acquittal. He says whatever is not forbidden in the law is permitted. permitted. And this is a very interesting minimalist account of what the law is. We can't assume that the law forbids practices implicitly. It's the necessity of the law to be clear, precise, and publicized. Otherwise, how could we walking around know whether we're acting legally or not legally? Law must be publicized in order to be valid. The minimalist can Conception states whatever is not forbidden is therefore permitted. He acquits the accused because we have absolutely no laws on the books against the kind of practice they engaged in, cannibalism, and protecting their own lives by sacrificing one. Now let's come to the conclusion. This case was meant to introduce students of the philosophy of law to a panorama of legal theories. We saw many different approaches to law actually get translated into action. So as you can see all of these different theories result in different concrete outcomes. So commitment to a natural law theory is actually not committing you merely to theory or commitment to positivism in law is not just committing you to theory, it's committing you to concrete outcomes. You decide cases in accordance with these legal jurisprudential philosophies. So commitment is not just a philosophical matter, it has serious real-world consequences. Thank you.

The case of the Spluntian Explorers is a paper originally written by Lon Fuller and published in the Harvard Law Review in 1949. Since that time, this hypothetical case has drawn so much theoretical interest that besides the five opinions originally written by the Explorers, presented in Fuller's paper, several later publications have presented numerous other opinions taking up the facts of this very same case. Let's discuss the facts of the case. This is a case of murder and cannibalism.

While this is a fictionalized account by Lon Fuller, it's based on a real case of cannibalism that had occurred some years earlier. In the fictionalized account, the four accused were trapped in a cave. A Spelunkian explorer or a Speluncian explorer means someone exploring caves. Were trapped in a cave along with a person named Roger Wetmore.

He was also one of the people trapped. They were trapped without food. and rescue efforts were underway. So these five explorers were trapped.

They had no food. They were in the process of being rescued, and in that process, they could communicate with people in the outside world, but they weren't free to get out. Medical experts advised that there was little possibility for the five to survive an additional 10 days without food. Roger Wetmore initially suggested that they should keep kill and eat one of the members of the group in order to survive.

Now, no rescuer, no doctor, judge, member of government, or priest, all of whom could speak with the members of the explorer group trapped in the cave, none of them offered advice when Wetmore and the others requested them how should they decide which one of them should be killed and eaten. They decided, therefore, that they should just throw down. dice.

But before the actual event of throwing the dice, Roger Wetmore, who had originally proposed the idea, decided he couldn't go through with it, and he withdrew. But the others continued, and they wouldn't let Roger Wetmore out, of course. He had to be included, so they threw the dice for him. Well, unfortunately for Wetmore, the dice went at his disadvantage, and he was was killed and eaten by the four accused.

Now, during the rescue efforts themselves, ten rescuers were actually killed by landslides. Explorers, these Spelunkian explorers, the four who lived, were rescued on the 32nd day. Wetmore was killed and eaten on the 23rd day, nine days earlier. It seems, therefore, if the medical practitioners were correct, that they might have all...

five survived if they had not eaten wetmore on that day. Now, what does the law state? What are these four accused being convicted of? The law states, whosoever shall willfully take the life of another shall be punished by death. Now, the purpose of this case is meant to introduce students of the philosophy of law to diverse legal theories.

All the diverse opinions of the judges and scholars in this case represent different attitudes, different views of legal theory. For example, there's natural law theory, there's consequentialist theories, there are natural rights theories, feminists, positivists, textualists, proposivists, realists, pragmatists, contextualists, critical race theorists, minimalists, and process theorists, all represented not in the original five lines. judgments that Lon Fuller gives, but as I had mentioned, many subsequent judgments have been issued in respect to this particular case, the facts of which I just explained to you. So this case is very useful for students of the philosophy of law to think about the real practical consequences of the theories that they have been considering.

What would natural law say about how to decide in this case? What would Legal positivism say about how to decide in this case and critical race theory and feminism so on were other approaches that were subsequently applied to the facts of this case. Let's start with Lon Fuller's original account with the five judges, and then as we continue we might supplement this with other judgments that were offered later on. after Lon Fuller's very influential 1949 paper.

Now, the facts of this case when it went to trial are that originally the four... men are accused of murder and they are sentenced to death. So the case that Lon Fuller presents us is one where that sentence is being challenged in the Supreme Court.

So the Supreme Court has to decide whether to uphold the sentence of death of the lower court or whether to overturn that. Upon appeal, this case was decided by a bench of five judges. Two of these judges upheld the conviction.

They said, yes, they committed murder, they should be sentenced to death. Two of the judges overturned it. They said, no, we shouldn't have the death penalty, they did not commit murder as per the law. One of the judges recused himself.

To recuse oneself means to step down, to refuse to engage in the process. Generally, judges recuse themselves if they are known to the people who are challenging them. case. In other words, if they are personally known to the prosecution or they're personally known to the defense, they're no longer impartial, so they step down and recuse themselves.

In this case, the judge who recused himself doesn't step down because he knows anyone. Rather, he steps down because he admits that there is no possible way to decide this case. Since it was a tie, two against two, the natural course of the judicial judicial process is that the original was upheld.

So the four men are sentenced to death and they are killed by the state. Let's discuss what these five judges have to say about this case. The chief justice is named True Penny.

Chief Justice True Penny first starts by reiterating what the law states. The law states this, whosoever shall willfully take the life of life of another shall be punished by death. Considering, as True Penny does, law to be law, in other words, taking the viewpoint of an exclusionary legal positivist, True Penny states that the case of the Spelunzian explorers does not allow for any exception.

On what basis, the law is very clear, on what basis should we say, no, they did not willfully take the life of another. No, they should not be punished by death. Articulating the positivist position, Chief Justice True Penny says, we have no choice except to uphold the conviction and allow the death of these accused.

In this way, the positivist shows complete regard and respect for the law. However, Justice True Penny does state that While the judges are bound by the law, the chief executive, the president, for example, has complete power to pardon. So the chief justice states, while passing his judgment of conviction, that the chief executive could be instructed to exercise clemency given the peculiar circumstances of this case. The next judge to give an opinion is Justice Foster.

Now Justice Foster used uses the natural law tradition to inform the way that he thinks about this judgment. In employing and explaining the natural law tradition, he seeks the acquittal in this case. So as a consequence of being a natural law theorist, he's quite critical of Chief Justice Truepenny's logical positivism.

As you'll remember from earlier modules on the distinction between legal positivism and natural law. For many centuries, these traditions have been antagonistic to one another. Justice Foster believes that the maxim, the reason for the law ceasing, the law ceases itself.

In Roman law, this was referred to as cesante ratione legis, cesat et ipsa lex. What this means is that we have law for a reason. And if that reason disappears, the law disappears.

Now, what is this other than... The basic natural law sense that the law itself is only there justified by something outside of the law. So this is very different from the positivist view that law is self-contained.

In this view, the natural law view of Foster, since the reason for that law to be there doesn't really operate in this case, we can almost think about these four accused as being outside the state. and back in the state of nature. Now, Justice Foster also mentions that the absolute value of life, which we seem to be up against in this statute against taking a person's life, is overrated in this particular case. Consider the irony that in the rescue efforts to rescue five explorers, ten rescuers lost their lives. So, Justice Foster said, says, those rescuers who went in to help the others knew the risks they were taking.

If we allow 10 to die for the sake of rescuing five, how is it that we can suddenly not allow four to live at the expense of taking one? Justice Foster, in his third argument, finds that this is a case of self-preservation. Since it's a case of self-preservation, we should employ the same logic as that used in the...

the case of self-defense. In other words, we can acquit someone accused of murder if we realize that that person had no choice. It was an act of self-defense and therefore he conducted that killing. That kind of killing in self-defense is not murder. Justice Foster says in the same way we should consider that these four people were trying to preserve themselves and so it's very similar to a case of self-defense.

all of these reasons, Justice Foster acquits, and he suggests that there should be no conviction. The third judge to speak is the one who recuses himself. He stands down.

Basically, he finds no way to distinguish the principles according to which we can decide this case in a free and rational manner. So he recuses himself from the case, but he doesn't do that until he criticizes Justice Foster's natural law position. He argues that if the defendants were right to kill... Whitmore, then Whitmore himself would be unable to plead self-defense if he tried to kill someone trying to kill him. So imagine that the story played out differently.

The four rolled the dice, Whitmore lost, the four go to attack Whitmore to kill him in order to eat him. Well what if Whitmore picked up a rock and bashed one of them in the skull and killed that person? Isn't that really what self-defense is all about?

If, according to the previous judge's argument, the four were trying to preserve themselves so it's a kind of self-defense, Justice Tating said if they get self-defense, that means Whitmore, who is really defending himself, couldn't claim self-defense. Therefore, Justice Foster must be wrong about the idea that we can let these four off because self-preservation is like self-defense. The next argument that Tating suggests is that in a precedent case, in other words, in a case that was decided before by the Supreme Court and to which the courts are always bound, this is a principle known as stare decisis, that previous cases bind the decisions of judges in future cases. In a previous case, Commonwealth v. Valjean, this was a case in which the very same court did not have a clear answer to the question of whether the court was going to approve the decision. not accept the justification of hunger and almost starvation for a person accused of theft.

So the person accused of theft said, I was starving and I had no choice, therefore I had to steal the bread. But the court said that that is not a justification for your action and they convicted the thief on. the charge of theft. Now, if you can convict a thief on the charge of theft expecting him to starve to death, then how can you not convict these four accused on the charge of murder because they were going to starve to death?

Finally, this judge points out that while the statute concerning murder requires a willful act, so if you remember in the law it says willfully killing, it can't be compared with self-defense. Because self-defense is an impulse response for self-preservation. In other words, if someone is about to attack you, and then you kill that person, it's an impulse to preserve your life. That's what self-defense is all about.

This, however... is a premeditated, willful act that was decided after deliberation between these Spelunzian explorers. If a decision is made after talking something out and deliberating about it, That's very different from a spontaneous act where you're trying to protect yourself. For these reasons, Justice Foster's natural law approach is heavily critiqued by Justice Tating.

Nevertheless, Justice Tating can't find principles upon which to decide whether to convict or to acquit. He just knows that the natural law tradition is wrong, or he just feels that the natural law tradition is wrong. And he steps down from the case.

The fourth judge. to make a decision is Justice Keene, and Justice Keene favors the death penalty. Justice Keene is also critical of Justice Foster's views. However, though he decides, just like Chief Justice Truepenny, that we should uphold the conviction and give the death penalty, he is nevertheless critical of Chief Justice Truepenny's suggestion that he will direct the Chief Justice.

executive to show clemency or to pardon them. As per the law, according to Justice Keene, the Chief Justice has no right, no prerogative in law to direct the Chief Executive to do anything. After all, these powers are separated.

The job of the Chief Justice is to decide. The job of the Chief Executive is to make his own decision whether he will pardon or not. So Chief Justice Truepenny, in stating that he will direct the chief executive to pardon is violating the judicial process.

But in siding with Chief Justice True Penny, Justice Keene says that this case can't be an exception due to self-defense. This is because, according to Justice Keene, the scope of self-defense is applicable in cases of resisting an existent threat to the party's own life. That's when we allow self-defense, when we admit that the person who defends himself by killing killing has an existential threat to his life by the person who's attacking him.

In this case, Whitmore poses no threat to the people who kill him. The threat of death for the four accused comes from something beyond Whitmore's control. So to say that we can let these people off because of self-defense is to suggest that Whitmore was the one responsible for their situation.

which is obviously not true. Therefore, Justice Keene upholds the death penalty. The fifth and final judgment made in Lawn Fuller's Spelunzian Explorers is made by Justice Hardy. Now, Justice Hardy does something very unique and unusual. He appeals to public opinion and believes that the defendants should be pardoned.

Now, what we learn from Justice Hardy is he had indirectly knowledge that the chief executive would not pardon these accused if they were convicted. So with that in mind, he points out that this case has been publicized not only nationally, but internationally. The entire world is watching, and the polls that have been taken all suggest that more than 90 percent of the public believe that the people on trial should be pardoned.

So his argument is a populist appeal. We all know that judges are the least democratic aspect in the overall governance process. Judges are appointed, they're not elected, they're not representatives, and their job is not to make law.

That's the job of the legislators. Therefore, Justice Hardy thinks, why should we go against what 90% of the people want when they clearly want these people? to be freed and we clearly know that the chief executive is not going to pardon them.

So he decides that these men should be acquitted. As I had mentioned, however, two decide for acquittal, two decide for conviction, one recuses, it's a tie, and therefore, according to the way the law works, the original conviction is upheld and the people are sentenced to death. In something referred to as...

further proceedings by the legal scholar Anthony D'Amato, we're asked to imagine that after this decision is brought out by the Supreme Court, a special commission is set up... by the president, the chief executive, in order to get three more opinions about what should be done so that the president can decide whether to pardon these four who are accused. who are due to be hanged or not to pardon those four. Now, these three judgments that come represent three further considerations or three different kinds of legal theorization of this problem.

These, however, are legal scholars, professors, and not judges. So the committee that the president or the chief executive has convened is a committee of legal scholars or professors. rather than judges.

The judges have already decided. Professor One does not favor clemency, so he doesn't want the president to pardon these accused. He believes that the defendants committed murder willfully, out of self-interest.

In fact, they included Wetmore, who had opted out of the plan in order to increase their own chances of survival. So think about this. When the five of them were there, Wetmore said, said, I opt out.

Why did they force Whitmore's inclusion? They forced it because they wanted to increase, in terms of probability, their own chances of survival. Isn't that true?

Because if only four of them were included, they have a 25% chance of being put to death. But if they include Whitmore, each of their chances of survival is 20%. chances of survival increases.

Therefore, Professor One says that the defendants murdered out of self-interest. They included Whitmore to preserve their own lives, and therefore he does not think that the president should pardon these people. Professor Two, however, favors clemency. He thinks that the president or the chief executive should pardon these people. His argument is that the statute regarding murder was not actually violated.

His emphasis is on the idea of life. And he says that the executioner, the person who's going to put these four to death, is also willfully taking the life. Right? So if these four people are...

to be put to death, they have to be put to death by someone. The person who is putting them to death is the executioner. The executioner, according to what the law states, is willfully taking the life of another.

Therefore, the executioner should be put to death. Now, obviously, we can't put an executioner to death, right? It's the job of the executioner to do that.

So how do we do it? We don't read that law precisely as encompassing every situation. We understand there are different ways. kinds of situations. So Professor 2 says that this is precisely one of those different kinds of situations.

So just because we don't follow the letter of the law in the executioner's case, it opens up the possibility of not following it in the case of the four accused. Professor 3 recommends that the sentence of the defendants should be reduced from death to compulsory service in a medical facility where they can help save other lives. So Professor Three believes that the defendants are neither guilty nor innocent of committing murder, because according to the letter of the law, they're guilty. According to the extenuating circumstances, they are not guilty, but they're certainly not innocent.

So he suggests that there can be something in between guilt and innocence. That's a kind of culpability. That culpability requires rectification, but the rectification doesn't need to be death. Death is punitive. That rectification can be a kind of rehabilitative act.

In this case, he says, these people... should spend time in a hospital helping others to live. As I had mentioned, the original case presented by Lon Fuller in the Harvard Law Review excited so many legal scholars and practitioners that people throughout the years continued to build upon the case, such as the one that we had just spoken of, where the three legal professors of law are asked to give their opinion.

Much later, there was another book produced, entitled The Case of the Spelunzian Explorers, Contemporary Proceedings. So there was another set of fictional judgments produced, set in the book. Seven fictional judgments, each of which presented once again new theories of law that should be used to interpret this case. We're not going to go through all seven views, but I will mention the ones that are most important.

interesting and add new perspectives of legal theory. Justice Naomi Khan and Justice Mary Coombe, both feminists, suggest a retrial with a jury. So this is a more democratic procedure.

of how this decision should be made. It shouldn't be made just by judges, but it should be made by a jury of the accused peers. Justice Calmore, who is a critical race theorist, spends his time condemning the death penalty, because as we all know, in the United States, for example, the death penalty is predominantly practiced against blacks and minorities, and there are very few people who are white or belong to the minority. majority who are ever subject to death. The same is true in India.

Critical race theorists in India argue that the people who are subjected to death in India are preponderantly poor and of marginalized communities. So instead of weighing in on how the judgment should be made, this critical race theorist judge condemns that we have a death penalty at all. judge named Justice Green confirms the conviction. Now Justice Green's argument is very interesting because it represents a kind of green position. In other words, Justice Green refers to a prior case, a precedent, Commonwealth versus Valjean, which I had discussed.

In that case, pardon was not granted to a poverty-stricken defendant. And so he affirms the conviction of this group too. His argument is, who is it?

that goes exploring in caves. Is it poor people, marginalized people? No, it's clearly members of the upper class.

Now, these people have the money to buy equipment, the money to engage in this sort of leisure. And yet, the same court will condemn a poor man to prison for stealing bread and yet acquit rich men for committing the crime of murder. He says we can't do something like that. have to uphold this conviction and apply the same standard to these rich as we apply to the poor. Other judgments, Justice Miller, Justice Paul, Justice Stein, reverse the conviction.

The first on moral grounds. The second doesn't believe a crime is committed. The third by an appeal to moral intuition and the failure of the judges to have given an opinion when the defendants were in a dilemma. You remember that in the facts of the case, they are told by the medical expert that they They won't live more than 10 days.

Whitmore says, okay, we're going to kill someone. How should we decide to do it? No response from the judges, from the priests, from the chief executive, from the doctors, from the rescuers.

They're left to decide on their own. So what right do the judges now have to convict them when they refused to advise them when they were asked? In addition to what we've just discussed, the seven views. in the contemporary proceedings, more fictionalized accounts of what different legal theorists, feminist, critical race theorists, and so on would decide. The legal theorist Peter Suber has presented another nine new opinions.

In these other nine new opinions, a diverse array of considerations are brought for different opinions of the nine new judges on whether to convict, whether to convict but not uphold the death penalty, whether to acquit entirely, or other alternatives. For example, some of the new opinions offer that this is a case of preventive killing. Some of them offer a new position altogether.

One should die and not kill. So a radical nonviolent opinion is introduced into the other alternatives. Some maintain a dichotomy between law and morals, in other words, represent the classical positivist view.

A feminist legal theorist argues for acquittal, and she says, probably we would have acted just like the defendants did. So in this case, they want to democratize and empathize. Finally, we turn to a unique way of addressing this case. It's called the case revisited. Now, the case of the Spelunkian explorers experienced its 50th anniversary because Lon Fuller had published it in 1949. So 50 years later, in an innovative way, six actual legal theorists don't create fictional accounts of judges or scholars of what they would say.

Rather, they actually decide the case. And I think this is a very important way of seeing how legal theory plays out. in practice.

Among them, the well-known theorist Cass Sunstein. Cass Sunstein is a textualist, and according to this idea of legal interpretation, textualism, Sunstein's argument is that he supports conviction because no absurdity will result in reading the statute. in a manner that gives you conviction.

So the statute says that anyone who willfully takes a life will be found guilty of murder and sentenced to death. Sunstein's argument is, let's stick to what the text says. we want to go against that reading of the text that supports conviction and death, then and only if that reading of the text produces absurdities or conflicts in the nature of the text. of law.

It doesn't produce any conflict in the nature of law. No absurdity results from reading the law in this textual way and therefore, Sunstein suggests we have to uphold this conviction. Alan Dershowitz, the very famous Harvard law professor, on the other hand presents a case for acquittal.

He says whatever is not forbidden in the law is permitted. permitted. And this is a very interesting minimalist account of what the law is.

We can't assume that the law forbids practices implicitly. It's the necessity of the law to be clear, precise, and publicized. Otherwise, how could we walking around know whether we're acting legally or not legally? Law must be publicized in order to be valid.

The minimalist can Conception states whatever is not forbidden is therefore permitted. He acquits the accused because we have absolutely no laws on the books against the kind of practice they engaged in, cannibalism, and protecting their own lives by sacrificing one. Now let's come to the conclusion. This case was meant to introduce students of the philosophy of law to a panorama of legal theories.

We saw many different approaches to law actually get translated into action. So as you can see all of these different theories result in different concrete outcomes. So commitment to a natural law theory is actually not committing you merely to theory or commitment to positivism in law is not just committing you to theory, it's committing you to concrete outcomes.

You decide cases in accordance with these legal jurisprudential philosophies. So commitment is not just a philosophical matter, it has serious real-world consequences. Thank you.

Transcript for:Legal Implications of the Spelunzian Case

Transcript for:
Legal Implications of the Spelunzian Case