BLB2121|LegalTheoryCaseStudyAnnaNguyen3855647

The Case of the Speluncean Explorers

Justice Keen: Legal Positivism

Name: Anna Nguyen

Student ID: 3855647
Lecturer: Julian Ligertwood
Tutor: Michael McKiterick
Word Count: 1454 words
Semester 1, 2014
I.

Introduction
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The hypothetical case of the Speluncean Explorers, written by Lon Luvois Fuller, involves
the theme of a statutory interpretation debate between legal positivism and natural law.
Naturalists follow that there is a necessary connection between morality and law. In other
words, there is a moral obligation to determine the legal validity of the law. Foster J follows
the natural law view as he believes that the convictions of the defendants should be set aside
on the basis that purposive interpretation should be applied to the statute and the defendants
acted out of necessity. Further, he contends that the defendants were in a state of nature, 1
hence they were subject to natural law and justifiably took the life of Whetmore. On the other
hand, Keen J as an advocate of positivism affirms the conviction of the defendants. He
follows the traditional positivist view of Austin and Bentham, which is followed on, by the
contemporary, exclusive positivist view of Joseph Raz and Herbert Lionel Adolphus Hart.

II.

Legal Positivism

Legal positivists assert that there is nothing intrinsically moral about the law and that there
should be limited connections between morality and interpreting what the law actually is.
Positivism implicates the notion that legal systems are posited and is created, by people,
rather than having a natural or metaphysical existence.2 There are several important features
of legal positivism. To reiterate, the fundamental implication of positivism is that there is no
intrinsic connection between law and morality. Further, legal positivism involves statutory
interpretation by defining what the law is as opposed to what it ought to be. Positivists place a
strong emphasis on the separation of the power between the legislature and the judiciary;
legislators make the law and judges have the power to interpret the law.

1 L Fuller, The case of the Speluncean Explorers (1999) 112 Harvard Law Review 1851,
1854.
2 M Davies, Asking the law question (LawbookCo., Pyrmont, 3rd ed, 2008) 100.
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Keen J begins by disregarding two matters he considers to be outside the scope of the case: 1)
executive clemency and 2) morality. He claims that the exclusive matter in regards to the
Speluncean Explorers Case, is that of statutory interpretation of 12-A N.C.S.A. within its
literal meaning in order to establish whether the defendants willfully took the life of
Whetmore. Keen J criticises the opinions of Tatting J and Foster J stating that they failed to
distinguish the legal and moral aspects of the case and that they considered the law to be of
lesser importance than the conception of morality.3

III.

The Plain Meaning of the Statute

Keen J follows the plain meaning of the statute and refuses to consider the equitable defense
of necessity.4

In other words, he interprets the law by doing nothing more than

implementing the positive law enacted by the legislature.5 Justice Foster challenges Keen Js
view, which emphasises the segregation of law and morals, by arguing that law is associated
with morality. In making his decision, Keen J accentuates the separation of morality and law.
He sets aside his own moral view from his duty as a judge by stating:
[A] question that I wish to put to one side is that of deciding whether what these men
did was "right" or "wrong," [this is] a question that is irrelevant to the discharge of
my office as a judge sworn to apply, not my conceptions of morality, but the law

3 Fuller, above n 1, 1864.

4 W Eskridge The Case of the Speluncean Explorers: Twentieth-century Statutory
Interpretation in a Nutshell (1993) 61 George Washington Law Review 1731.
5 Ibid 1732.
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The difficulties all trace back to a single source, and that is a failure to distinguish
the legal from the moral aspects of this case I respect the obligations of an office
that requires me to put my personal predilections out of my mind when I come to
interpret and apply the law of this Commonwealth.6
Here, the opinion put forward by Keen J is consistent to the positivist view of Joseph Raz, to
be specific, positivism stresses the point that moral thoughts is by no means considered to
determine the validity of the law.7

IV.

The Separation of the Legislature and the Judiciary

Keen J evokes that the law is legislation enacted by the legislature and the judiciary has the
duty to enforce faithfully the written law, and to interpret that law in accordance with its
plain meaning without reference to our individual conceptions of justice. 8 He outlines the
conception of the separation of powers of the legislature and the judiciary. According to Keen
J the duty of a judge is to purely apply the law enacted by the legislature. The relevant
murder provision, 12-A N.C.S. A. expressly states: whoever shall wilfully take the life of
another shall be punished by death. Keen J strongly emphasises the duty of a judge to
separate the aspects of interpreting and applying the law, and their own personal judgement.
He stated that if he was to make a decision based on his own personal and private capacity he
would set aside the conviction.9 Nevertheless, he rehashes that as a judge, he has the

6 Fuller, above n 1, 1864.

7 J Crowe, Legal Theory (LawBook Co., Pyrmont, 2nd ed, 2014) 58.
8 Fuller, above n 1, 1865.
9 Ibid 1864.
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obligation to make a decision in his capacity to interpret the law. Hence, he affirms the
conviction of the defendants.10

V.

Law and its purpose

According to Keen J, the statute reflects a deeply-felt human conviction that murder is
wrong and that something should be done to the man who commits it 11. He refuses to believe
that there is only one single purpose for a statute and argues that if a purpose is not known,
how is it possible to say that there is a gap in the statute. Keen J asserts hard decisions are
never popular but that hard cases may remind people that there is no principle of personal
grace that can relieve the mistakes of their representative.12 Raz asserts that the law has a
clear-cut limit and that what makes law law is the existence of some limit which is
itself a principle of coherence and identity of law. 13 Truepenny CJ argues that the when the
law is unfair, the legislature will expectantly revise the law. To reiterate, this is inconsistent
with the principle of separation of powers and the authority to amend the law is left to the
legislature and not of the judiciary. According to Hart, unfair laws may still be law and that
there is no disguise for the choice between evils.14

10 Ibid.
11 Ibid 1866.
12 Ibid1868.
13 Davies, above n 2, 372.
14 HLA Hart, The Concept of Law (2nd ed, 1994) 212.
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Keen J criticises Foster J and Tatting Js argument in regards to the proposed exception to the
statutory law. Keen J accepts the decision made in the case of Commonwealth v Parry15,
which upheld the exception on the basis that the purpose of the criminal legislation is
precluded.16 However, Keen J emphasises that in regards to the statute, the crucial issue is
not the purpose but the scope of the statute.17 He illustrates the distinction between this
precedent and the case of Speluncean Explorers, by insisting that self-defence is not
applicable to the present case as the defendants deliberately and willfully took the life of
Whetmore. Keen J argues that the decision to convict the defendants is the best resolution, as
it will allow for legal consistency in particular for analogous, future matters. Statutory
interpretation should be an interpretation of the law as it was made and there should be no
association to personal interpretations. To be specific, moral aspects should not interfere in
the legal system of justice. The law should be consistent as to reach a decision based on the
set rules of law and if the law was to be subjected to moral thoughts of judges as to what is
fair and just, it is thought that the law no longer functions as a genuine authority.18

VI.

Conclusion

Foster J makes the necessary connection between morality and legal validity, and claims that
the statute is inapplicable in these circumstances. Truepenny J proposes executive clemency
for the unjust law. Keen J presents a judgement that follows the legislation enacted and
detaches his personal and moral opinions of the case. The validity of law should not be based
upon the concept of morality. The positivistic verdict of Keen J displays a strong argument in
15 (1974) 1 Mass. App. Ct. 730.
16 Fuller, above n 1, 1867.
17 Ibid.
18 Crowe, above n 7, 58.
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dealing with the case on the foundation of the separation of law and morality, accordingly
finding the defendants guilty for the murder of Whetmore.

He further claims that the

proposition of self-defence made by Foster J and Tatting J is inapplicable to the case of the
Speluncean Explorers. It is intricate to put aside the moral aspects in question however, the
prime duty of a judge is to interpret the law. By allowing the conceptions of morality to be
associated with the law, it may cause inconsistencies in judicial power of the court. As the
law states: whoever shall wilfully take the life of another shall be punished by death,
following the plain meaning of the law and separating the concept of morality, it is justifiable
to convict the defendants.

VII.

Bibliography

Artilces/Books/Reports
D'Amato,A, "The Effect of Legal Theories on Judicial Decisions" (2010) Faculty Working
Papers, Paper 82
Crowe, J, Legal Theory (LawBook Co., Pyrmont, 2nd ed, 2014)
Davies, M, Asking the law question (LawbookCo., Pyrmont, 3rd ed, 2008)

Doherty, M, Jurispudence: The Philosophy of Law (Old Bailey Press, London, 2nd ed, 2001)

Eskridge, W The Case of the Speluncean Explorers: Twentieth-century Statutory

Interpretation in a Nutshell (1993) 61 George Washington Law Review 1731

Fuller, L, The case of the Speluncean Explorers (1999) 112 Harvard Law Review 1851

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HLA Hart, The Concept of Law (2nd ed, 1994)
Leiboff, M and Thomas, M, Legal Theories in Principle (LawBook Co., Pyrmont, 2004)
Wacks, R, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford
University Press, Oxford, 3rd ed, 2012)

Case Law
Commonwealth v David L Parry (1974) 1 Mass. App. Ct. 730

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