THE CASE OF THE SPELUNCEAN EXPLORERS

by
LON L. FULLER

I. FACTS:

Early in May of 4299, five members, of the Speluncean Society, an organization interested
in the exploration of caves, while ongoing their operation got trapped inside due to landslide. A
rescue camp of men and machine was then dispatched where at one instance of several
landslides, ten of the workmen were killed.
On the twentieth day of their imprisonment, they had found a wireless machine to
communicate with the camp. The engineers of the rescue team said that it would take at least
ten days for them to be rescued. Describing their condition and their rations, the physician in the
camp told them that there is a little possibility of living without food for ten days longer.
Roger Whetmore, on behalf of the imprisoned men, then asked whether they would be
able to survive for ten days longer consuming the flesh of one of their number. The physician
reluctantly answered in the affirmative. When further asked if they could cast lots to determine
which of them should be eaten, none of the rescue team was willing to advise nor found any
judge, government official or priest to do so. Thereafter, nothing was heard of from the inside.
The other four members were initially not in favor of Whetmore’s idea but agreed after
the conversations with the rescue team. The five agreed to use the dice in determining who
would be eaten. Before the dice was cast, Whetmore, backed out and opined that they should
wait for a week before doing “an expedient so frightful and odious”. He was then charged for a
breach of faith and the other four proceeded to cast the dice. When it came Whetmore’s turn,
he was asked to declare any objection of which he stated he has none. Another member did cast
the dice for him where it showed that the throw was against him. He was then put to death and
eaten by his companions.
The four men were finally rescued on the thirty-second day after their imprisonment.
After receiving treatment at the hospital, they were indicted with the murder of Roger
Whetmore.
II. ISSUES:
1. Whether or not the defendants had the intention to kill Whetmore and should be
guilty of murder.
2. Whether or not the law should be given literal interpretation in the case at bar.

3. Whether or not the law has no limitation or exception.

4. Whether the defendants were at the state of nature or at the state of civil society
during their imprisonment.

III. Summary of Arguments:

1. The defendants had the intention to kill Whetmore, thus they should be guilty of
murder. By definition of murder, clearly they have satisfied all the elements required.
2. The law should be given literal interpretation. The law is not ambiguous, therefore it
should be applied rather than being interpreted. Dura Lex Sed Lex, The law maybe
harsh, but it is the law.
3. In natural law, no one has the right to take away one’s life regardless of any reason.
In positive law, the only accepted circumstance to justify murder is self defense.
Starvation is never accepted both in statutes and jurisprudence.
4. Defendants were in general at “a state of civil society”.

IV. ARGUMENTS:
1. William Blackstone, in his Commentaries on the Laws of England set out the common law
definition of murder, which states: murder occurs when a person, of sound memory and
discretion, unlawfully kills any reasonable creature, with malice aforethought, either express or
implied.
Under Philippine Law, Art 248 of the Revised Penal Code: Any person who, shall kill
another, shall be guilty of murder if committed with any of the following attendant circumstances
enumerated. Two of the qualified circumstances mentioned are: 1.) with treachery, taking
advantage of superior strength and 2.) with evident premeditation.
It is crystal clear that the speluncean survivors murdered Whetmore. All four of them took
advantage of their superior strength outnumbering Whetmore and undoubtedly synced their
minds agreeing to willfully and unlawfully kill him. Their intention to kill was brought about by
starvation and the need to survive, not enough to justify their act of killing. Thus, all four of them
satisfied the required elements of murder.
 In US v Holmes, Brown, the ship captain was convicted of murder as he decided to
sacrifice the lives of some people in the lifeboat to save the rest. It was then changed to
manslaughter. He was then found faultless because there was a case of necessity, “before the
protection of the law of necessity can be invoked, a case of necessity must exist, the slayer must
be faultless, he must owe no duty to the victim.” Holmes was then pardoned by the President.
In the present case, there is a necessity to live and survive but no sufficient case of
necessity to kill. It is clear that the physician stated that there is little possibility to survive; “ little”
does not immediately imply the impossibility of survival- it is therefore, not absolute. Besides,
they still had rations left on the 20th day, they could have practically utilized the remaining
provisions they had. Whetmore was killed 3 days after.
Whetmore also suggested that they wait for another week so there is an implication that
their state could not have been that worse to resort to cannibalism. If Whetmore had that in
mind, he might have foreseen that they could still survive for 7 days more.
Possibilities always exist and they existed even for Whetmore. For the explorers trapped
in the cave could not be certain that they would not be rescued the next day or even the next
hour, they then cannot force their version of the odds for survival upon Whetmore. It is therefore
evident that the willingness to go ahead with the desperate procedure would prove the
genuineness of each individual’s decision as to the odds of survival.
Also, Immanuel Kant’s formulation of Categorical Imperative talks about man being a
rational being; since he is a rational being, he has no right to formulate such a maxim like, “If I
am in a terrible condition, I have the right to take my life or reserve the right to the doctor or my
family members.” He avers that humans should be treated as an end and not as a means. When
you treat someone as a means, you are using him or her to benefit yourself or to achieve a final
goal. Treating someone as an end in himself or herself means that you are giving them value for
the simple fact that they are human. Humans should respect other humans just on the idea of
humanity as an end.If this is such, no man has the right to take his life even in whatever condition
he finds himself. In this case, no man has the right to take another’s life in whatever condition he
finds himself.

2. The Law of Newgarth provides that: “whoever shall willfully take the life of another shall
be punished by death” N.C.S.A (N.S) 12-A. We concur with what Chief Justice Truepenny and
Justice Keen said that statute under scrutiny is not ambiguous and is plainly stated for applying
the law rather than interpreting the law. The maxim of dura lex sed lex should be upheld.
 The law clearly specifies that one who has the will to kill another is punished by death and
there are no exceptions. The law itself if clear and unambiguous, therefore not subject to further
interpretation. It is important to stick to the letter of the law which means to apply the law as it
is read literally. The law provides in itself the element of killing and the penalty to be imposed-
which is death. Even the spirit of the law is manifested in the letter, as manifested in the phrase
“willfully take” means there is an element of intent on the part of the accused. The purpose of
the law following the phrase is to punish those who have the will/intent to kill.
In the case of Regina v Dudley and Stephens, Dudley and Stephens murdered a fellow
young seaman named Parker in order to save their own lives from starvation. The court decided
that they were guilty of murder. It is a rule of law that killing an innocent life to save one’s own
does not justify murder even if under extreme necessity of hunger.
Even that the speluncean survivors were in extreme hunger, they had no rights to take
Whetmore’s life for the reason of survival because the only exception defined by law is self-
defense in which they do not qualify.
The duty of the courts is to apply the law as in this case as it is no longer to be construed.
Otherwise, interpreting it would resort to the judge’s sole discretion which might be influenced
by his moral principle or the popular will. As in this case, the non-conviction of the survivors of
murder would be a popular course of action (given that there is sympathy) however it would
entail a very high cost to legal doctrine ( stretching the scope of the murder state) and to the
reputation of the court as a principled institution guided by law and not popular will. This is
contrary to democracy, in which everyone, not just a few judges, should have a say in the laws of
the nation. It is contrary to stability which means that laws could change arbitrarily and randomly
with the whim of any judge who ruled on them. It is also contrary to equality where crimes could
be precisely identical but punished differently (or not punished at all), at the judge's sole
discretion.

3. John Finnis’s conception of natural rights: “The right not to have one’s life taken as a
means to any further end. “
Given that the defendants were running out of options and means of survival, they
ultimately resorted to the method suggested by Whetmore, that is to kill one of their own and
eat their killed comrade. On a naturalist’s point of view, no one has the right to take away a life
even regardless of the reason or the need.

There might be contentions as to whether there are any exceptions to the rule especially
that it may be their only mean for survival. This may even constitute as a self-defense for self-
preservation. Viewed in this way, defendants may pray for a justifying circumstance. In Article 11
of the Revised Penal Code, the elements of self- defense are as follows: 1. If there is an unlawful
aggression, 2. Reasonable necessity of means employed to prevent it or repel it; 3. Lack of
sufficient provocation on the part of the person defending himself. In the case, none of the
elements are present. Not even the reasonable necessity because they could have eaten their
shoes, clothes and even consume their bodily secretions to prolong their survival. Their fear of
impending doom is in itself only a mere speculation which in itself is not an acceptable excuse.
Whether or not the laws have limitations or exceptions, in the case of murder, yes there
is but there are also certain sets of provisions that specify what is to be limited and exempted.
To disregard the provision in order to justify the crime committed is perversive to the law and to
the men which abides to this social contract.
In addition, divine law states that, “thou shall not kill”. This proves that natural law
supports our argument. There are even no exceptions given. Killing is in itself inherently and
morally wrong.
Also, Categorical Moral Reasoning according to Kant locates morality in certain duties and
rights and that there are absolute moral requirements regardless of the consequences. It is
important to take note of the intrinsic quality of the act itself, so in this case of murder, killing of
Whetmore is categorically wrong even for the sake of saving four lives. As taken from Kant’s view,
the end does not justify the means. It should also be taken into account that in saving their lives,
the survivors failed to respect an individual or minority right which led to their violation of
Whetmore’s right to life.

4. Defendants were in general at “ a state of civil society”.

In general, the imprisoned men were at a state of civil society. It has been argued by Judge
Foster that the law is underpinned by the fundamental assumption that men live together, and
that the law loses its force once that assumption loses its truth. Allowing that premise, it is not
at all clear that the explorers were living in a "state of nature"- if by nature we imply primitive or
uncivilized. It is evident that they were inside the cave coexisting with each other. They were
even able to formulate a systematic plan with the dice to determine who would be eaten, thus,
they were exhibiting rationality. Also there is this possibility that after the rescue where the
obstruction (rocks) is already cleared, they would rejoin the larger society. The fact that in the
meantime, their only separation from the society was by a "a solid curtain of rock" seems relevant
only if we allow physical impediments to obstruct the reach of the law. Thus, we opine that the
trapped explorers remained entirely under the jurisdiction of the law of Newgarth.

It is human nature to fight for survival for physiological needs. But it is also a well
established fact that humans are logical, emotional, and moral creatures. These are all intrinsic
elements of being a human- complex logical thinking and morality. Even during the primitive
times, humans had manifested rationality by using of tools and sociality by joining hunting
groups. Even without laws yet, they have lived in harmony and are governed by their natural
sense of what was good and evil.

V. CONCLUSION
We strongly uphold that the survivors should be convicted of murder and shall be
punished by death. The Newgarthian law which states: “whoever shall willfully take the life of
another shall be punished by death” N.C.S.A (N.S) 12-A is clear and not susceptible to any other
interpretations nor exception. It is important to note that the duty of the courts in this matter
should purely be the application of the law otherwise it would lead to prejudice. The state should
be governed by the rule of law and not men in order to uphold stability, justice and democracy.

VI. REFERENCES

 Blackstone, William. "Commentaries on the Laws of England (1765-1769)."BOOK 4,

CHAPTER 2 Of the Persons Capable of Committing Crimes. LONANG INSTITUTE 2014,
2014. Web. 31 Aug. 2016. <http://lonang.com/library/reference/blackstone-
commentaries-law-england/bla-402/>.
 By What Measure Is the Comparative Value of Lives to Be Measured? Is It to Be Strength,
or Intellect, or What ? It Is Plain That the Principle Leaves to Him Who Is to Profit by It to
Determine the Necessity Which Will Justify Him in Deliberately Taking Another’s Life to
save His Own. In This Case the Weakest, the Youngest, the Most Unresisting, Was Chosen.
Was It More [p. 288] Necessary to Kill Him than One of the Grown Men? The Answer
Must Be. "The Queen vs Dudley and Stephens (1884) (The Lifeboat Case)." Justice with
Michael Sandel. N.p., n.d. Web. 01 Sept. 2016.
<http://www.justiceharvard.org/resources/the-queen-vs-dudley-and-stephens-1884-
the-lifeboat-case/>.
 "Introduction to Philosophy." Introduction to Philosophy. N.p., n.d. Web. 31 Aug. 2016.
<http://courses.dce.harvard.edu/~phils4/holmes.html>.
 “The Case of Speluncean Explorers by Lon L. Fuller.” Harvard Law Review, The Harvard
Law Review Association, Cambridge, Mass., USA. Vol. 62, No. 4, February 1949.
http://w.astro.berkeley.edu/~kalas/ethics/documents/introduction/fuller49.pdf
 http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1097&con
text=facultyworkingpapers
 If you were a judge in this case... [Archive] - Online Debate Network By maintianing the
appeals process, aren't your objections rendered somewhat moot, as any and all
judgements can be shot down by the greater body of judgement? -
http://www.onlinedebate.net/forums/archive/index.php/t-11348.html
  Http://independent.academia.edu/peterodianosen. "Immanuel Kant's Moral Theory as a
Response to Euthanasia." Academia.edu. N.p., n.d. Web. 30 Aug. 2016.
<http://www.academia.edu/1407390/Immanuel_kants_Moral_theory_as_a_response_t
o_euthanasia>.
 "Speluncian Explorers." Legal Studies 250. N.p., 01 Feb. 2006. Web. 31 Aug. 2016.
<http://www.umass.edu/legal/Hilbink/250/Goodhmwk3s06.pdf>

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