Nominate (i) your favourite judge and (ii) your least favourite judge in LL Fuller, The Case of the Speluncean Explorers (1949) 62 Harvard Law Review 616. Give reasons for your answer.

Foster also remarked on the ‘new charter of government’ which was necessarily drawn up by the lost explorers. Indeed, in US v. Holmes, the attorney for the defence argued that ‘All became their own lawgiver; for artificial distinctions cease to prevail when men are reduced to the equality of nature. Every man on board had a right to make law with his own right hand, and the law which did prevail on that awful night having been the law of necessity, and the law of nature too..’ 

Foster’s second ground was that conflict arises between the literal wording of the statute and its intended purpose. He argues that murder in self-defence is excused from the statute intended to punish homicide in the traditional sense of the word. A similar viewpoint arises in US v Holmes: David Brown, attorney for the defence, argues that the law of ‘self-preservation’ is just as compelling as that of the law of self-defence, saying ‘what is honestly and reasonably believed to be certain death will justify self-defence to the degree requisite for excuse’.

However, I strongly argue that self-defence is an entirely different act than was performed upon Whetmore. Surely an act of occurs when there is no chance to compare the options – it is usually an automatic, involuntary reflex. I believe that Whetmore’s murder, since pre-meditated, falls entirely under the requirements of the Commonwealth statute, that a murderer is he ‘whoever shall wilfully take the life of another’. There are numerous alternatives – if eventual death was so ominous, could the explorers not have waited until the weakest member of the party died before eating him? Could they not have eaten non-essential parts of their own bodies? Though a poorer substitute, could Whetmore not have been excluded not only from the casting of lots, as he so wished, but consequently from the whole matter, and awarded no part in the benefit gained?

I believe that the weakest of Foster’s ideas lies in the example of Fehler v Neegas, where the word ‘not’ was ‘transposed from its intended position in the final and most crucial section of the act’. Surely the word ‘not’ can change the meaning of any phrase, sentence or statute to an entirely conflicting, even ridiculous, principle: ‘Whoever shall wilfully take the life of another shall not be punished by death’; ‘Whoever shall not wilfully take the life of another shall be punished by death’. The suggestion that the same effect ought to be carried out in Spelunceans appears entirely ludicrous, particularly due to Foster’s choice of example. I believe the lines ‘I know you lawyers can with ease, Twist words and meanings as you please’ suitably sum up Foster’s intent.

Foster also draws on the ultilitarianist idea of sacrifice, emphasising the ratio of lives taken in attempting to rescue the explorers - he asks ‘If it was proper that these ten lives should be sacrificed to save the lives of five imprisoned explorers, why then are we told it was wrong for these explorers to carry out an arrangement which would save four lives at the cost of one?’ Whilst I agree with the moral principle of this argument, as many would, I cannot ignore the fact that there was no lack of opportunity to avoid Whetmore’s murder.

Foster includes the idea of intelligent and non-intelligent reading of legislation. Though he admits that ‘it is, of course, perfectly clear that these men did an act that violates the literal wording of the statute’, he consequently suggests that the statute does not apply to this case. I believe that the main role of the judges in this case, no matter what their personal opinion might be, is to apply legislation in accordance with the laws of the Commonwealth. Justice Foster’s argument, however, appears weighted too greatly upon personal values and philosophies rather than the legal issue at hand. I agree with Keen, who suggests that Foster’s rationale has an ‘element of fantasy’ to it. As Tatting rightly says, ‘by what authority do we resolve ourselves into a Court of Nature?’ 

To act as Foster suggests would be to undermine the principle role of the judiciary, which is to interpret legislation rather than to make or alter the law. ‘[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there’. Similarly, I agree with the logic that ‘In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage.’ I see no reason whatsoever why the judges ought not to recommend application of the law of their state, whether they agree with the wording of a statute or not, and believe it is Foster’s prime responsibility to put aside his own moral perspective and proceed with the direct legal issue in mind.

However, in Foster’s defence, it is clear from the offset that he recognises the challenge that Spelunceans provides to the substance of Commonwealth law, that the law itself is ‘on trial in this case’, and thus hopes to set a precedent from the case rather than simply regarding it as a difficult, yet exclusive problem.

The main reasoning behind the argument of Justice Keen is that the judge’s role is not to determine whether an action or statute is ‘right or wrong, wicked or good’, but to apply the statute, which in this case, Keen believes, applies on its own terms.

Keen’s strongest line of argument is his emphasis on the importance of the roles, and differences between, the legislative and judiciary bodies. I find it hard to understand the ability of Justices Foster and Tatting to hold ‘the clear-cut principle, which is the supremacy of the legislative branch’ at such little value. Keen makes it quite clear that the ‘purpose’ of a statute must be defined before searching for a ‘gap or imperfection’ in the wording of the legislation. Only then, can the blank be filled in, or the imperfection altered. However, as is blatantly pointed out, it is almost impossible to construe the ‘purpose’ of making murder a crime, and ‘If we do not know the purpose of §12 – A, how can we possibly say there is a ‘gap’ in it?’ The simplicity with which Keen illustrates the three steps of the process of judicial reform highlights the force of his argument to great effect.

I admire the way in which Keen presents his opinion. Throughout his argument he attacks the problem in his position as a judge, focusing on what is required from his role, defining the key issues and applying the statute directly. From the beginning of his opinion, Keen pounces on the mistakes of his colleagues, arguing that ‘the difficulties…all trace back to a single source…a failure to distinguish the legal from the moral aspects of this case’. Keen’s statements immediately bring home the real issue raised by Spelunceans: ‘Primarily, such a statute reflects a deeply-felt human conviction that murder is wrong and that something should be done to the man who commits it’. In addition, Keen manages to avoid tediousness by incorporating simple, yet sharp examples, such as the story of a man who ate his own shoes.

Justice Keen appears honest and focused on his contractual obligation as a judge. The admission that in his ‘capacity as a private citizen’, he ‘would pardon these men altogether, since…they have already suffered enough to pay for any offence they have committed’ reveals his understanding of, and affinity with, the opinion of the public. Yet he is fully aware of the ‘legal and governmental order I am sworn to administer’. 

Bibliography

The Case of the Speluncean Explorers, LL Fuller (1949) 62 Harvard Law Review 616

United States v Holmes, US Circuit Court (1842)

Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996)

Connecticut Nat'l Bank v. Germain,  (1992)

Queen v Dudley & Stephens, 14 Q.B.D. 273 (1884)

The Case of the Speluncean Explorers: Nine New Opinions, Peter Suber (Routledge 1998)

http://jurisp06.umlaw.net/2006/08/17/speluncean-explorers-discussion-questions/

http://www.units.muohio.edu/aisorg/syllabi/LawLitSyllabus.pdf

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