Introduction:
Legal philosopher Lon L. Fuller wrote the Case of the Speluncean Explorers, an article first published in the Harvard Law Review in 1949. It takes the form of a fictional judgment. It lays down a legal philosophy puzzle to the reader with five possible outcomes in the form of judicial opinions of the judges sitting on the bench of the fictional ‘Supreme Court of Newgarth’ in the year 4300.
The case involves five explorers who enter a cave. Soon after, a part of the cave collapses, thereby sealing the cave entrance that is the only way out. The explorers are trapped inside. A few days later, they find out through an intermittent radio device that they are most likely to starve to death before they can be rescued. To avoid this, they decide to participate in cannibalism and choose one amongst the five to be killed and eaten by the rest to survive. The selection is to be made by throwing a dice.[1]
After the remaining four are rescued, they are charged and found guilty of the murder of the fifth explorer. In case of a failure to appeal to the Supreme Court of Newgarth, they are bound to be sentenced with the death penalty.
The article offers five judicial opinions. Each differs in their rationale and on whether the four rescued explorers should be found guilty of violating the law. Two judges affirm the convictions by stressing the importance of the separation of powers and a literal approach towards a statute or legislation. Two other judges reversed the convictions. The fifth judge, unable to conclude, decides to recluse, and as a result, the decision is a tie. The original convictions are upheld, and the accused are sentenced to death.
Facts of the Case
Early in May 4299, the four defendants who are members of the Speluncean Society, an amateur explorer organization, went into a limestone cavern. A fifth explorer, Roger Whetmore accompanied them. A landslide rendered the only known opening to the cave to block completely.
The Secretary of the Society promptly dispatched a rescue party. On the twentieth day, when the explorers still weren’t rescued, it came to their attention that they had carried a portable wireless machine capable of establishing communication by sending and receiving messages. Once the trapped explorers communicated with the rescue camp, they asked how long it would take the rescue party to reach them. The answer was ten days, which increased the explorers’ apprehension that they might starve to death as they had carried with them scant provisions, and there were no vegetables or animals in the cave that could serve as food.
The chairman of the committee of physicians involved with the rescue party affirmed the explorers’ doubts that it is highly likely for them to starve to death within ten days if there are no provisions left with them. Whitmore, speaking on behalf of himself and the defendants, asked the chairman whether there were chances for them to survive if they ate the flesh of one of their numbers. The chairman answered in affirmative, albeit with reluctance.[2]
The four defendants were rescued after thirty-two days of being trapped, and it was found that they had killed Whetmore and eaten him. Whetmore had proposed to roll a pair of dice to decide who amongst them shall be killed. However, at the last moment, Whetmore withdrew from the arrangement and suggested waiting for another week before indulging in such an odious deal. His companions were outraged and charged him with a breach of faith and rolled the dices on his behalf. The outcome did not favor Whetmore, and thus he was killed and eaten by his fellow explorers or the defendants.
The defendants were admitted into a hospital for their treatment for shock and malnutrition, after which they were indicted for the murder of Roger Whetmore. The trial judge found the defendants guilty and according to the Commonwealth law, which states, “Whoever shall willfully take the life of another shall be punished by death,” imposed the death penalty.
The petitioners then brought a petition of the error to the Supreme Court.
Judicial Opinions of the Judges
Truepenny CJ
Truepenny CJ provided an overview of the facts, as stated earlier. In his opinion, the trial judge’s decision is fair and wise and is the only open course that can be adopted. He acknowledges that no exception can be made or applied to the statutory provision, regardless of any sympathy.
The only reliance made by the Chief Justice is in executive clemency, which is a pardon granted by the President. He proposes that the Supreme Court joins in the communication to the Chief Executive if they expect clemency to be granted.
Truepenny CJ sustains the conviction.
Foster J
Foster J criticizes Truepenny CJ’s findings stating that he is attempting to escape the embarrassment associated with this case. He states that positive law is based upon the possibility of human social coexistence. The cessation of this possibility leads to the cessation of the law itself. He believes that the coexistence principle is self-evident. All law is directed towards facilitating and improving human coexistence.
According to Foster J, the explorers, when they made this decision, were not a part of the civil society but a part of nature and miles beyond the boundary of a legal order. He also reiterates that the basic principle underlying law or governance can be found in the notion of contract and considers that the explorers agreed to cast votes, a new charter of the government that was suitable to the situation.
Foster J further argues that nothing in the wording of the statute suggests an exception of self-defense. However, the reconciliation of the exception of self-defense can only be made with the statute’s purpose and not its words. This concerns the interpretation of the statutory provision and advocates an approach to statutory interpretation that can be identified as the ‘purposive approach.’ Moreover, according to him, the law cannot prevent killing in self-defense if the individual’s life is threatened.[3]
In conclusion, Foster J believes that the conviction should be set aside.
Tatting J
Tatting J states that his obligations as a judge require him to split emotion from intellect and decide based solely on the latter. However, this case does not invite him to do that where he is divided between sympathy and detestation.
According to him, Foster J’s opinion is full of contradictions and errors. He states that the courts of Newgarth are entrusted with the power to administer the laws of that Commonwealth. The notion that criminal law, which relates to murder, cannot function as a deterrent where a person is faced with the choice of life or death is not convincing. Deterrence is not the only purpose; rehabilitation and retribution of the criminal are also significant.[4]
Tatting J lays down that the circumstances of the case eliminate the deterrence element but do not extract the culpability of the explorers entirely. However, he concludes that he cannot give an impartial decision.
Tatting J withdrew from the decision of the case.
Keen J
In his opinion, there are two questions in the case that are not to be answered by the court:
- the question of executive clemency; and
- that of morality.
Executive clemency is a matter that the chief executive has to deal with. To differentiate between right and wrong, the question of morality is not something Keen J concern himself with. The difficulties in deciding the case arise from a failure to distinguish between the case’s legal and moral aspects.
Keen J also criticizes the opinion of Foster J and states that his interpretations are defective as he is making an attempt to include some purpose, which is not revealed in the statute. He believes that it is not the statute’s purpose that must be questioned, but its scope and exception. The actions of the defendant undoubtedly fall within the ambit of the statutory provision.[5]
Keen J concludes by affirming the conviction.
Handy J
Handy J opines that the case must be decided in the light of ‘practical wisdom’ and not ‘abstract theory.’ According to him, the arguments related to the distinction between situations when a rule or a principle should or should not be applied are a necessary evil. Wide discretion must be available to the judiciary except in cases of fundamental nature.
To preserve the harmony between public opinion and the judiciary, a declaration of innocence must be made. Handy J points out that Truepenny CJ believes that the case must be decided based on common sense; however, the public does not support the Chief Justice’s opinion to uphold conviction and request clemency. Handy J doubts the grant of executive clemency given the conservative views of the Chief Executive.[6]
Therefore, Handy J believes that the defendants are innocent, and their convictions must be set aside.
Now that the Supreme Court was evenly divided with Truepenny CJ and Keen J affirming the convictions and Foster J and Handy J willing to set them aside, Tatting J was asked by the Chief Justice to reconsider his position on the matter. He still stood ground on not wanting to participate in the decision-making.
The existence of a tie in the Supreme Court’s decision led to the reaffirmation of the conviction and sentence of the Court of General Instances.
Lon L. Fuller’s Explanation of the Case
In a Postscript, in this case, Lon L. Fuller states that it is not his intention to treat this case either as a satire or a prediction (since it is set in the future). Further, the judges are just as mythical as the facts of the case. He urges the reader to accept only this view and refrain from any contemporary resemblances since neither is intended by him nor contemplated. Anyone who does so is engaging in a sport of their own.[7]
The only purpose he created this fictional case was to put forward diverse philosophies of the law and government. If there is any aspect of prediction in the case, it merely suggests that certain problems shall be faced by the human race permanently.
Jurisprudential Theory
The legal philosophy or jurisprudence considered in this case varies from the division of powers as illustrated in the notion of clemency to the theory of natural law as described by Justice Foster. There are also aspects of positivism, the metaphysical relationship between law and morality, along with the reading of the statutes.
The case also highlights the requirement of decisions in the expression of practicality and the different facets of self-defense. Foster J expressed his opinion on two basic grounds for acquittal:
- the application of the principle of natural law, and
- the application and the position of the Statute.
The court seems to lack the capacity to make a decision on a contract made in the light of ‘natural law.’ Looking at the position of the legislation, Foster focuses on the spirit of the law rather than on the textual law itself.
R V. Dudley and Stephens[8]
Four men from an English ship are trapped on a boat in the sea after a storm. After a few days, they ran out of their provisions. They go on without food or water for a week, after which the captain of the ship, Thomas Dudley, proposes to kill one of the four men by drawing lots so that the rest of them can feed on his shelf to sustain their life. Edward Stephens agrees to the proposal, but Ned Brooks refuses, and the cabin boy is not consulted. Some days later, Dudley and Stephens decided to kill the cabin boy stating that he was ill anyway. Later all three of them feed on his flesh.
The two defendants, Dudley and Stephens, are charged with murder. The question that arose here was (i) whether ‘necessity’ can be claimed as a defense for murder?, and (ii) whether killing another boy to save one’s own life be termed as self-defense in this case?
In the opinion of the court, necessity must be so unavoidable that it could justify homicide. In the present case, the intention to murder was clear as the temptation to which the defendants surrendered is not what the law considers ‘necessity.’ Necessity can be claimed as a defense for murder, although it provides restricted justification.[9]
The defendants were found guilty of murder and sentenced to death, which was later reduced to life imprisonment.
Conclusion: Indian Perspective
Section 81 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) any act which may cause harm but is done in good faith, in the absence of any criminal intent, or because it would prevent another harm, that act shall not be an offense.
The defense of necessity lies largely on the principle of choosing the lesser evil. The inference that can be drawn is that the need recognizes circumstantial morality and allows one to be rescued from his circumstantial offense. The defense of necessity is an emerging concept. The way it develops will depend on how the judiciary interprets it in future cases. There is no doubt that it has drawn some critical criticism and that it also makes some sense, as it was in obiter dictation in R v. Dudley and Stephens, where it was said that not every requirement can be ground for necessity; otherwise, there would be absolute chaos and nothing else.[10]
While not exclusively focusing on the defense of necessity, Lon L. Fuller does lay down, even though unintentionally, some of the most prominent foundations for it. In his disclaimer for the case not being a ‘prediction,’ he evades the significance that this case will hold in jurisprudence.
[1] Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV. L. REV. 616, 616 (1949).
[2] Id. at617.
[3] Id. at 625.
[4] Id. at 630.
[5] Id. at 636.
[6] Id. at 638.
[7] Id. at 645.
[8] (1884) QBD 273 (DC).
[9] Stuti Mishra, R v. Dudley and Stephens, IPLEADERS, https://blog.ipleaders.in/r-v-dudley-stephens-case-analysis/#:~:text=The%20widely%20famous%20case%20of,having%20necessity%20as%20a%20defence.&text=After%20some%20days%20Dudley%20and,and%20then%20they%20were%20rescued.
[10] Anu Mittal, Necessity as a Defence, ACADEMIKE, https://www.lawctopus.com/academike/necessity-as-a-defence/
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