The Case of the Speluncean Explorers

"The Case of the Speluncean Explorers" is an article by legal philosopher Lon

L. Fuller first published in the Harvard Law Review in 1949. Largely taking the
form of a fictional judgment, it presents a legal philosophy puzzle to the reader
and five possible solutions in the form of judicial opinions that are attributed to
judges sitting on the fictional "Supreme Court of Newgarth" in the year 4300.[a]

The case involves five explorers who are caved in following a landslide. They
learn via intermittent radio contact that, without food, they are likely to starve to
death before they can be rescued. They decide to engage in cannibalism, and
Fuller's hypothetical case involves a
select one of their number to be killed and eaten so that the others may survive. group of cave explorers who are
They decide who should be killed by throwing a pair of dice. After the four trapped following a cave-in and face
survivors are rescued, they are charged and found guilty of the murder of the the risk of death from starvation. The
fifth explorer. If their appeal to the Supreme Court of Newgarth fails, they face a case examines how the rescued
survivors, who kill and eat one
mandatory death sentence. Although the wording of the statute is clear and
person in order to survive, should be
unambiguous, there is intense public pressure for the men to avoid facing the
treated by the law.
death penalty.

The article offers five possible judicial responses. Each differs in its reasoning
and on whether the survivors should be found guilty of breaching the law. Two judges affirm the convictions, emphasising the
importance of the separation of powers and literal approach to statutory interpretation. Two other judges overturn the convictions;
one focuses on "common sense" and the popular will while the other uses arguments drawn from the natural law tradition,
emphasizing the purposive approach. A fifth judge, who is unable to reach a conclusion, recuses himself. As the Court's decision
is a tie, the original convictions are upheld and the men are sentenced to death.

Fuller's account has been described as "a classic in jurisprudence"[2] and "a microcosm of [the 20th] century's debates" in legal
philosophy.[3] It allows for contrasts to be drawn between different legal philosophies, with the main two being natural law and
legal positivism. In the 50 years following the article's publication, a further 25 hypothetical judgments were written by various
authors whose perspectives include natural law theory, consequentialism, plain meaning positivism or textualism, purposivism,
historical contextualism, realism, pragmatism, critical legal studies, feminism, critical race theory, process theory and
minimalism.[4]

Contents
Synopsis
Facts
Opinion of Chief Justice Truepenny
Opinion of Justice Foster
Opinion of Justice Tatting
Opinion of Justice Keen
Opinion of Justice Handy
Similar real cases
See also
References
 Notes
Footnotes
Bibliography
Further reading

Synopsis

Facts
The facts of the case are recounted in the first judicial opinion, which is given by Chief Justice Truepenny.[5]

Five cave explorers became trapped inside a cave following a landslide. They have limited food supplies and no sources of
nutrition inside the cave. Above ground, substantial resources are spent to rescue them, with 10 workmen killed in subsequent
landslides near the blocked entrance. Radio contact is eventually established with the cavers on the 20th day of the cave-in, and
the cavers learn that another 10 days would be required in order to free them. They then consult with medical experts, who inform
them that they are unlikely to survive to the rescue given the likelihood of starvation.

One of the cavers, Roger Whetmore, then asks on the cavers' behalf if the cavers could
survive 10 days longer "if they consumed the flesh of one of their number". The medical
experts reluctantly confirm this to be the case. Whetmore then asks if they should draw
lots to select a person to be killed and eaten. No one outside the cave is willing to
answer this question. Radio contact is subsequently lost.

In "the Case of the
Speluncean Explorers", the
person to be eaten was
chosen by throwing a pair of
dice. This method had also
been suggested for choosing
the victim in the similar real-
life case of R v Dudley and
Stephens.
Once the cave-in is cleared, it is discovered that only four cavers have survived; Roger
Whetmore had been killed and eaten by the others. The survivors state that Whetmore
had originally come up with the ideas of cannibalism and choosing the victim through
random chance, offering a pair of dice in his possession.
Before the dice are cast, Whetmore allegedly expresses a wish to withdraw from the
arrangement, preferring to wait another week "before embracing an expedient so
frightful and odious". The others refuse to accept his change of mind, and cast the dice
on his behalf. The survivors claim that Whetmore conceded that the dice were thrown
fairly. He is subsequently killed and eaten.

Following their rescue and recovery, the survivors are charged with the murder of Whetmore. The relevant statute provides that
"Whoever shall willfully take the life of another shall be punished by death", offering no exceptions which would be relevant to
the case.[6] The jury seek a special verdict, so that they can make limited findings of fact without having to return a verdict on
whether it constitutes murder. The cavers are ultimately convicted of murder.

The mandatory sentence for murder in Newgarth is death by hanging. Both the trial judge and members of the jury petition the
Chief Executive to commute the sentence of the surviving spelunkers from the death penalty to six months' imprisonment. The
Chief Executive refuses to act while the Supreme Court of Newgarth considers the appeal.
 Summary of Fuller's five judicial opinions
Judge Key points Decision

Chief Statute is unambiguous and must be applied by judiciary

Affirms convictions but
Justice notwithstanding personal views
Clemency is a matter for the executive, not the judiciary recommends clemency
Truepenny
Court should joint petition to Chief Executive for clemency

Defendants were in a "state of nature" so Newgarth's normal laws

did not apply to them; the laws of nature would allow them to
agree to sacrifice one's life to save the other four
Justice If the laws of Newgarth do apply, then a purposive approach must
Sets aside convictions
Foster be taken to the statute. Judges can find an exception to the law by
implication, as the Courts had earlier done with self-defense.

Principal purpose of the criminal law – deterrence – would not

be served by convicting the defendants.

Criticises Foster J's approach

The natural law under the posited "state of nature" prioritises

freedom of contract above the right to life
Justice Withdraws from case and
Tatting Purposive approach to statutory interpretation is difficult when makes no decision
there are multiple purposes (here, retribution and
rehabilitation)
Cannot decide case due to competing legal rationales and
emotions

Criticises Chief Justice's proposed appeal to Executive for

Justice clemency given need to respect separation of powers; should only Affirms convictions
Keen make appeal in capacity as private citizens
Moral considerations are irrelevant in applying the statute

Court should take account of public opinion and "common sense"

Justice Aware that 90% of the public want the men to face a lesser
punishment or be released Sets aside convictions
Handy
Has heard rumours that the Chief Executive will not commute the
sentence despite strong public opinion

Opinion of Chief Justice Truepenny

The first opinion is largely expository; it is used to recount the facts of the case. The Chief Justice states that the statute is
unambiguous, with no applicable legal defences, so it must be applied by the court.[7] He adds that granting mercy is a decision
for the executive branch of government to make, rather than the judiciary.[8] However, the Chief Justice suggests that the judges
of the court should add their names to the petition of the trial judge and jury requesting the Chief Executive to show mercy to the
defendants. This would allow justice to be achieved "without impairing either the letter or spirit of our statutes and without
offering any encouragement for the disregard of law".[8]

Opinion of Justice Foster

I believe something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our
Commonwealth. If this Court declares that under our law these men have committed a crime, then our law is itself
convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of
 error. For us to assert that the law we uphold and expound compels us to a conclusion we are ashamed of, and
from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive,
seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate
justice.

— Justice Foster[8]

The second opinion takes a different approach to the Chief Justice's. In determining that the convictions should be overturned,
Justice Foster makes two main points. Firstly, the defendants were in a "state of nature" at the time of the killing, so the laws of
nature applied to them. The laws of nature allowed to agree to sacrifice one person for the survival of the rest.[8] Secondly,
assuming the laws of Newgarth did apply, the purpose of the statute should be considered when applying it to the facts of the
case. Justice Foster considers the main purpose to be deterrence, concluding that just as a conviction involving self-defense would
not serve the statute's purpose, neither would a conviction in the present case.[9]

The judge counters potential judicial activism concerns by noting that while judges must obey the will of legislators, they must do
so intelligently. He draws analogies to servants who need to "read between the lines" of their masters' instructions: strict literal
compliance may not always be the actual intention.[10] Thus the "correction of obvious legislative errors or oversights is not to
supplant the legislative will, but to make that will effective."[11]

Opinion of Justice Tatting

In the third opinion, Justice Tatting is emotionally "torn between sympathy for [the defendants] and a feeling of abhorrence and
disgust at the monstrous act they committed".[11] He ultimately finds himself unable to decide the case.

Justice Tatting disagrees strongly with Justice Foster's rationales in overturning the convictions. He criticizes the "state of nature"
concept and is not satisfied with Justice Foster's formulation placing the law of contract above the law against murder.[12] He also
notes the difficulty of applying the purposive approach to the criminal statute which has multiple purposes, including retribution
and rehabilitation.[13] He distinguishes the self-defence exception that was created by past judges on the basis that it is not a
"willful" killing, so it does not contradict the wording of the statute.[14] He finds that the self-defence exception could not be
applied to the present case as it would raise "a quagmire of hidden difficulties".[15]

The judge cites the case of Commonwealth v Valjean,[b] in which starvation was held not to justify the theft of a loaf of bread, let
alone homicide. These combined objections lead Justice Tatting to reject Justice Foster's reasoning as "intellectually unsound and
approaching mere rationalization."[17]

Despite rejecting Justice Foster's reasoning, Justice Tatting cannot bring himself to reach the alternative view, that the defendants'
convictions should be upheld. He states that "almost every consideration that bears on the decision of the case is counterbalanced
by an opposing consideration leading in the opposite direction."[17] Concluding with a criticism of the prosecutor for deciding to
bring the prosecution in the first place, the judge makes the "unprecedented" decision of withdrawing from the case.[17]

Opinion of Justice Keen

The fourth opinion begins by excluding executive clemency and the morality of the defendants' actions as relevant factors to the
court's deliberations.[18] Rather, the question before the court is purely one of applying the legislation of Newgarth and
determining whether the defendants wilfully took the life of Whetmore. He criticizes the other judges for failing to distinguish the
legal from the moral aspects of the case.[18] While he shares their preference that the defendants be spared from death, he
respects the obligations of his office to put his "personal predilections" of what constitutes justice out of mind when interpreting
and applying the law.[18]
Justice Keen objects vehemently to Justice Foster's purposive approach allowing the plain words of the law to be ignored.[19][20]
He emphasizes that laws may have many possible purposes, with difficulties arising in divining the actual "purpose" of a piece of
legislation.[21]

Justice Keen recalls that earlier instances of judicial activism in Newgarth had ultimately led to civil war, which established the
supremacy of the legislature over the judiciary.[21] He concludes by criticizing the courts' creation of the self-defense excuse,
stating that waiting for the legislature to enact such revisions would have led to a stronger legal system.[19]

Opinion of Justice Handy

In contrast to the other judges, Justice Handy prefers to use a "pragmatic, common-sense approach", rather than abstract legal
theories, to resolve the case.[22] He criticizes his colleagues' "obscuring curtain of legalisms" when the case simply requires the
application of "practical wisdom" of "human realities".[19] He emphasizes the need for the courts to maintain public confidence,
which requires them to follow the 90% majority in favour of applying a token punishment or releasing the defendants
altogether.[23][22] He is prepared to use Justice Foster's purposive approach doctrine as the legal rationale.[23][22]

Justice Handy notes that apart from the ambivalent Justice Tatting, the other judges share the majority public opinion. The judges
voting to uphold the convictions simply differ from Justices Foster and Handy on whose role it is to spare the defendants from the
death penalty.[24]

Similar real cases

R v Dudley and Stephens, an actual English criminal case from 1884 involving cannibalism at sea.
The William Brown was a ship whose sinking led to several passengers being forced out of an overcrowded
lifeboat to save the remaining passengers. It led to the case of United States v. Holmes, in which crewman
Alexander Holmes was charged with murder and convicted of manslaughter for his actions.

See also
Plank of Carneades

References

Notes
a. Fuller addressed his decision to date his scenario in the fifth millennium in the article's postscript, writing that "the
reader puzzled by the choice of date may wish to be reminded that the centuries which separate us from the year
4300 are roughly equal to those that have passed since the Age of Pericles [i.e. the fifth century]".[1]
b. This reference invokes Jean Valjean, the protagonist in Victor Hugo's 1862 novel Les Misérables. In the novel,
Valjean is imprisoned after stealing bread to feed his sister's starving children.[16]

Footnotes
1. Fuller 1949, p. 645.
2. D'Amato 1980, p. 467.
3. Eskridge Jr. 1993, p. 467.
4. Roederer 2003, p. 388.
5. Fuller 1949, p. 1851.
 6. Fuller 1949, p. 1853.
7. Fuller 1949, p. 619.
8. Fuller 1949, p. 620.
9. Fuller 1949, p. 624.
10. Fuller 1949, p. 625.
11. Fuller 1949, p. 626.
12. Fuller 1949, p. 627–628.
13. Fuller 1949, p. 628–629.
14. Fuller 1949, p. 629.
15. Fuller 1949, p. 630.
16. Caron & Gely 2004, p. 70–71.
17. Fuller 1949, p. 631.
18. Fuller 1949, p. 632.
19. Fuller 1949, p. 637.
20. Caron & Gely 2004, p. 67.
21. Fuller 1949, p. 633.
22. Caron & Gely 2004, p. 69.
23. Fuller 1949, p. 640.
24. Fuller 1949, p. 642.

Bibliography
Cahn, Naomi; Calmore, John; Coombs, Mary; Greene, Dwight; Miller, Geoffrey; Paul, Jeremy;
Stein, Laura (1993). "The Case of the Speluncean Explorers: Contemporary
Proceedings". George Washington Law Review. 61: 1754–1811.
Caron, Paul L.; Gely, Rafael (2004). "Affirmative Refraction: Grutter v. Bollinger Through the
Lens of the Case of the Speluncean Explorers" (http://scholarship.law.missouri.edu/cgi/v
iewcontent.cgi?article=1214&context=facpubs). Constitutional Commentary. 21: 63–
106.
D'Amato, Anthony (1980). "The Speluncean Explorers – Further Proceedings" (http://scholarlyc
ommons.law.northwestern.edu/facultyworkingpapers/98). Stanford Law Review. 32:
467–485. doi:10.2307/1228393 (https://doi.org/10.2307%2F1228393). JSTOR 1228393
(https://www.jstor.org/stable/1228393).
Easterbrook, Frank H. (1999). "The Case of the Speluncean Explorers: Revisited" (https://web.
archive.org/web/20140714223130/http://chicagounbound.uchicago.edu/cgi/viewcontent.
cgi?article=1829&context=journal_articles). Harvard Law Review. 112: 1834–1917.
Archived from the original (http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?arti
cle=1829&context=journal_articles) on 2014-07-14.
Eskridge Jr., William N. (1993). "Case of the Speluncean Explorers: Twentieth-Century
Statutory Interpretation in a Nutshell" (http://digitalcommons.law.yale.edu/cgi/viewconten
t.cgi?article=4813&context=fss_papers). Washington Law Review. 61: 1731–1753.
Fuller, Lon L. (1949). "The Case of the Speluncean Explorers". Harvard Law Review. The
Harvard Law Review Association. 62 (4): 616–645. doi:10.2307/1336025 (https://doi.or
g/10.2307%2F1336025). JSTOR 1336025 (https://www.jstor.org/stable/1336025).
Roederer, Christopher (2003). "Negotiating the Jurisprudential Terrain: A Model Theoretic
Approach to Legal Theory" (http://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?
article=1779&context=sulr). Seattle University Law Review. 27 (385): 385–451.
Retrieved 15 January 2015.
Further reading
Suber, Peter (1998). The Case of the Speluncean Explorers: Nine New Opinions. London: Routledge.
Butler, Paul; Dershowitz, Alan; Easterbrook, Frank; Kozinski, Alex; Sunstein, Cass; West, Robin. "The Case of
the Speluncean Explorers Revisited". Harvard Law Review. 112: 1876–1923. doi:10.2307/1342398 (https://doi.or
g/10.2307%2F1342398). JSTOR 1342398 (https://www.jstor.org/stable/1342398).
Porciello, Andrea. Il caso degli speleologi di Lon L. Fuller e alcuni nuovi punti di vista. Un approccio alla filosofia
del diritto attraverso dieci pareri di fantasia, Rubbettino, 2012.

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