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9/11 (W2) - The Case of the

Speluncean Explorers (contd.)
(from Pravidhi’s notes)
Tatting, J. -

starts with the assumption that Foster is correct and thus the men’s acts were right -
but asks who gives him the authority to decide that law or the validity of those
extralegal standards - if you accept these standards outside the law (and thus of the
state of nature), then that removes you from being competent to be a judge (and
thus of the law and the sense of authority)

his response shows why predictability is a virtue according to the positivists

refuses to give a decision and to express his opinion about whether they should be
held liable - mostly criticises what Foster is saying - points out the obvious errors in
what he is saying - both prongs of Foster’s reasoning are unacceptable because
there are too many problems that arise

about the charter - when does the charter end a new one arise? if you say that
these men were removed from the general applicability of the laws, when did this
happen? is it when their hunger reached a survival capacity or when the rocks fell
over them? when does the judicial system become inapplicable? he points out the
importance of principles of jurisdiction such as territorial jurisdiction because they
create predictability - if this jurisdiction does not apply to the situation, how can we
adjudge the case? how can we acquit them if they are beyond our legal system?

Natural law thinkers on Nazi Germany: Entrenched strict positivism- no scope for
judicial review. The horrors of Nazi Germany were possible because there was no
scope of judicial review and judges were doing mathematical application of law with
minimum analysis. A judicial function of reasoning is relying upon statutes within the
realm of reason. They also cite the case of a woman who accused her husband of

9/11 (W2) - The Case of the Speluncean Explorers (contd.) (from Pravidhi’s notes) 1
 criticising Hitler. In 1944, defendant, desiring to get rid of her husband, reported to
the authorities derogatory remarks he has made about Hitler while home on leave
from the German army. Defendant wife having testified against him, the husband
was sentenced to death by a military tribunal apparently pursuant to statutes
making it illegal to assert or repeat any statements inimical to the welfare of the
Third Reich. However, after serving some time in prison, the husband was sent to
the front.

Hart says one must first accept that we are facing a moral problem. You cannot
support a woman in her immoral actions but cannot punish her for following the
law. He suggests a retrospective statute to punish her- this for him is a move for
candor in an exceptional understanding. This retrospective statute does exactly
what Hart wants; first recognises that the law was unjust- that this sentence had
all the trapping of law but it was unjust and hence must be reversed.

Natural Law theory according to Hart, hides the problem that society make such
bad laws. It cannot be declared no law because it was unjust. The substance of
law cannot define what law is. You have to accept that it was a law . Unless you
recognise that legal system is capable of doing wrong you cannot put
safeguards against it.

Fuller’s response is that NLT recognises that all legal system have inner core of
moral reasons. They are not vague but very definite like procedural due process
etc. These safeguards when imbibed in law will prevent from doing evil hence
this is to be done. He argues that his moral principle like being general ensures
equality of law or base form of justness. You cannot call systems like Nazi
Germany a legal system. His justification for calling it ‘not a law’ is not based in
dislike of the law but the fact that Nazi Germany has lost its capability to
legislate. All jurisprudence and legal systems have aspirations of justness.

in trying to bring about a particular result, you are more concerned about how
you will decide an individual case - focus on individual justice - when faced with
a moral quandary, positive law is incapable of solving this - so you have to look
at extralegality - Tatting is pointing out that in doing this, you are undermining
the entire aspect of the legal system which is necessary for any legal system to
function

Does not give opinion on liability of the accused but a criticism of Foster J’s opinion
as he believes that the reasoning leaves us murkier water.

9/11 (W2) - The Case of the Speluncean Explorers (contd.) (from Pravidhi’s notes) 2
 Social contract argument: When does removal from general applicability of law
happen? Is there a threshold that one must keep in mind? Who decided it? When
does legally the the jurisdiction of a place ends? There’s no certainty of principle of
jurisdiction here. This principle gives a predictable procedure to follow and without it
the confusion created would be disastrous.

Also, if you say that the case is out of our jurisdiction then you are functus
officio- you do not have legal authority to comment on it. Exclusion from
jurisdiction cannot be partial and then the caused cannot be tried.

Additionally, the question was on the nature of the social contract- why couldn’t
Whettmore exit it if it endangered his life? Also there should not exist a contract
where murder is legal? Illegalities through contract should not make it okay.

In trying to engage with extra legal reasoning you undermine the very legal
system. In trying to acquit the accused, Foster J has disregarded all legal
principles and created more problems.

The violence of process is not justified on any grounds.

The reasoning of Foster J., leaves no stability and certainty in legal institutions. this
undoes the guarantee of justice and certainty. There is no due process left.

Deterrence logic: That is not the only theory of punishment, it also has other school
of thoughts like reformation. Your reasoning depends upon what value you uphold
so you cannot limit the function of law like that.

Deterrence does not even come in these dire circumstances where rational
thought is not being applied. So, why use this value?

Additionally, judges have very limited tools so how do you figure out legislative
intent. You can only think of a broad aim. Upholding one purpose over the other
is tricky and leaves scope for judges to impose their values. This might lead to
them figuring out the ends they want and then figure out the means of
interpretation that they can use.

Recusing oneself in a case.

What are the merits of considering generality when a case is likely not to arise again
and why not justice do then only?

9/11 (W2) - The Case of the Speluncean Explorers (contd.) (from Pravidhi’s notes) 3
 Fidelity is not just towards individual cases but towards the legal system. You
cannot determine solely on facts because judicial reasoning is more than
factual but principle based too. How can you apply the same principle on
catalsying facts.

9/11 (W2) - The Case of the Speluncean Explorers (contd.) (from Pravidhi’s notes) 4
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10/11 (W2) - The Case of the
Speluncean Explorers (contd.)
insight from Tatting’s opinion - we assume the law to be a dispassionate application
of facts - but we see that judges also face profound moral questions to which they
feel the law is inapplicable

eg. famous case in UK (R v. Cambridge Authority) - issue was whether in

accordance with the NHS Medical Service’s mandate, an expensive cancer
treatment should be extended to a little girl who had cancer and did not have
the financial wherewithal to pay for it

positivism trains you to expect that law will give solutions to all problems - but
this is not true as Tatting’s opinion reveals - the law may ask you to
mechanically reach an outcome, but it may not be the right or just outcome - the
positivist idea that the law self-contained is an adequate mechanism is a false
assumption - it creates a hierarchy between a legal source/legal method, and a
non-legal source/non-legal method

our assumption is that even the losing party will know why they lost - we repose
a lot of institutional and social faith in the judicial mechanism - the judicial
outcome is expected to be accepted as a given

you may reach the correct legal outcome but how do you evaluate everything
that has led someone to commit that offence?

eg. in France, a lot of violent crime is influenced by alcohol - consider the fact
that the state is the primary beneficiary of alcohol revenue - so if the state is
responsible for getting people drunk, how much can you pretend that the
person is solely responsible for what they have done? you cannot say it is a
pure expression of will because the state has a part in it

10/11 (W2) - The Case of the Speluncean Explorers (contd.) 1

 in one way, Foster’s opinion makes sense - he is not hiding behind the statute -
maybe he is interpreting it wrongly and not following the correct process, but not
looking at the law in this way is an abdication of the legal process - natural law
theory requires judges to discard a formalist application - to acknowledge the
limitations of a written, formal law - you are asking the question of what ought to be
done and not mechanically generate outcomes - predictability is a limited aspect - at
the least, it is necessary for judges to recognise that there are limitations of a written
law - essentially, Foster has developed a different set of standards for himself that
sacrifice predictability and clarity - the only predictability needed is the predictability
of justice

laws are meant for an average individual - who are not extremely keen on breaking
the law - if there is some kind of condition makes you commit a crime, then no law
can deter you from doing it - but in general, laws are meant for those who want to
generally comply with it

we are talking about the basic conditions of compliance - how easy it is for me to
comply with the law vis-a-vis how easy it is for you to comply with the law - if i have
had a good and comfortable upbringing, it is likely that i will not face much of a
burden in being law-abiding - otherwise i have to show an extra element of morality
in being law-abiding despite difficult circumstances - these basic conditions are
unequal and the law creates a mirage of inequality

if you look at conditions of compliance with the law, there is fundamental inequality
there - a lot of it is due to social and economic circumstances - so you are creating
peculiar scenarios where a person resorts to crime

public outrage and public mind is a fickle-minded and short-term thing - because it
is often driven by stereotypes - it will only channel in one way, and that is towards
retribution

Keen, J. -

he also upholds and applies Section 12A but employs a very different approach -
legal reasoning (reflecting positivism)

two things he is not concerned about -

10/11 (W2) - The Case of the Speluncean Explorers (contd.) 2

 whether executive clemency is to be given or not - judges cannot intervene in
what a different branch should or should not do - court should not enter into an
arena of the executive in the same way the the executive does not decide
cases for the judiciary

the morality of what the men did - says it is not a question of the law - says the
moral correctness of the action is not the concern of the law - it corresponds to
a very positivist interpretation of the law - we are not looking at whether the law
is acceptable or unacceptable based on its morality or the morality of human
action - you may personally think the act is despicable but this is not applicable
while applying the law - judicial reasoning is unconnected from evaluating the
moral worth of a particular action

his opinion straitjackets what the judicial function should be - applies legal and not
moral reasoning (like Foster) or advising the executive (like Truepenny) - very close
to law and legal reasoning as an autonomous discipline which is independent of
moral considerations

how to read Section 12A - look at how the legislature has drafted it - what the
purpose of the legislature was itself - he points out the way judges like Foster
generally intepret statutes, which is to look for a purpose and change the meaning
accordingly - this means that they are actually looking for a result

but when the meaning is clear, then there is no need to find this purpose - there is
nothing to suggest that there is something inherent in that exercise that leads it to
only find a purpose

Hart - in some cases, formalism may be a vice but in the vast majority of cases, it is
not - when a case squarely falls into a statute and its normal interpretation, then
formalism is just - so it is only a vice when a judge is ignoring an intelligent
application of the law - ordinarily, judges don’t have to interpret a law based on its
purpose because when this is done, they have a certain result in mind

a judge may think that a particular social evil is necessary in some circumstances -
but why are you giving the judge this power? this kind of purposive interpretation
disguises corruption and power - one reason why unelected judges are a bad idea

keen is using a positivist approach - he is giving reasons why according to the

interpretation of the law, this is the outcome that occurs - this is the institutional view
of judicial reason and the judicial process - you are not compromising on the

10/11 (W2) - The Case of the Speluncean Explorers (contd.) 3

 fundamental principles which law promises - it is a just outcome in the long term
though it may seem unjust in the short term - everyone’s case should be decided
according to the same principles

if the aspect of the right to self-defence would be clearly held and properly applied,
then the legislature would have incorporated this into the statute - hopes that after
this case the legal change will occur

when a positivist talks about a legal system or institution, he is talking about how it
is a self-contained system that does not have to look beyond the law - society
changes over time and in order to keep laws in consonance with these changes, the
solution to this is legislative change - it is not the judges who need to change, it is
the law - but this legal process of the autonomous application of law must be upheld
even if it means arriving at some unjust outcomes along the way

final outcome - confirms the sentence and upholds the conviction - says Section
12A is clear as it required a wilful act - since all the requirements were satisfied by
the men, they need to be sentenced

differentiating Truepenny and Keen -

Keen shows fidelity to the law in the context of executive clemency - he does
not want the executive to be involved - Truepenny does not do this as he asks
for executive clemency

idea in Keen’s opinion - he is not shying away from an intelligent application of

the law which requires all sources of the law to be applied in a reasonable
manner - he knows that there is an issue of necessity and self-defence, it is not
an ordinary situation - he engages with the legal source in a reasonable manner
- looks at how some people look at the purpose of Section 12A as a deterrent
law, but says that this is not applicable in this case - also how it can be looked
at as an exception in the sense of self-defence - looks at wilfulness: is the idea
of self-defence premised on the aspect that anything done in self-defence can
never be done wilfully

so we see the application of a full range of legal sources - opinion turns on

the fact that despite all these legal authorities, he is convinced that in the
legal sense, the act deserves conviction

10/11 (W2) - The Case of the Speluncean Explorers (contd.) 4

 Keen’s is a reasoned opinion, Truepenny’s is not - a situation where
positivism is giving an absurd result but this does not solely mean that you
should turn to the opposite result

Keen asks whether there is an authoritative legal source through precedent

- if this source instructed him to acquit the men, he would do it - in the
absence of this, he is doing a simple application of the law

this is the main difference between formalism and positivism - positivists

look at legal sources and find ample room to reason out and understand
authority in its fullest sense

Handy, J. -

refers to public opinion - leans heavily towards acquitting the men - believes that
law is generated through public opinion - it is codified public opinion

rebuts the presumption that judges are immune to public opinion - the idea that they
do not know what public sentiment is because they are unelected - the reality is that
they are a part of society in all other senses, so it is unreasonable to expect them
not to know what judgements will be popular and what will not

10/11 (W2) - The Case of the Speluncean Explorers (contd.) 5