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Tuesday, August 16, 2005

Revisiting the Speluncean Explorers

No doubt you've come across Lon Fuller's brilliant and famous jurisprudential puzzle, The Case of the Speluncean Explorers, at some point in your legal education. 

It strikes me that a blog presents a unique opportunity to discuss the possibilities in greater depth than a classroom allows, and so I open the comment forum to discussion.  If we generate interesting debate, I will blog a follow-up post with further discussion.

Please share which of Fuller's opinions you would join or present a different position entirely.  (Indeed, there is a small cottage industry devoted precisely to offering alternative opinions.)  Assume there are no constitutional defenses.  Assume necessity is not a defense.  Consider whether it makes any difference whether the judges are appointed or elected. 

For extra credit, guess which opinion I would join.

A brief refresher of the salient facts:

Five cave explorers were caught underground after the tunnel collapsed.  They learned through radio contact that the rescuers were at least ten days away, and that they could not survive that long without food.  They further learned that they could survive if they were to eat one from among them.  They radioed to the outside to ask whether it would be legally and/or morally permissible to kill one among them to sustain the others, but no one above ground would answer the question. 

One of the explorers, Whetmore, suggested that they throw dice to determine who should be eaten, and they all agree.  Just before the dice were thrown, Whetmore suggested that they wait until they are closer to death before proceeding; but he was outvoted, and a die is cast on his behalf.  Everyone, including Whetmore, agreed that the dice where thrown fairly.  Whetmore lost. 

When the rescuers finally reached the explorers, they found that Whetmore had been killed and eaten. 

The remaining explorers were put on trial for murder under the jurisdictions statute, "Whoever shall willfully take the life of another shall be punished by death."  They were found guilty and sentenced to be hanged. 

The case is now on appeal to the Supreme Court.  What should the Justices do?

After the jump, I briefly review the various positions offered by Fuller.

Note: What follows is a very brief description of each opinion.  For further detail and nuance, consult the original.

Chief Justice Truepenny: Would affirm the conviction and sentence.  The murder statute obviously applies to the defendants' conduct, and it is not within the Court's province to ignore the statute.  The executive may provide clemency.  Indeed, given the facts of the case, the executive is likely to provide clemency, and the Court should formally encourage the executive to do so.

Justice Foster: Would reverse.  The statute is inapplicable for two reasons.  First, once the explorers were cut off from society, they returned to a state of nature, and society's laws did not apply to them.  Alternatively, the purpose of the statute would not be served by applying it in this case.  (Read the article for the complete argument.)

Justice Tatting: Would recuse.  The statute clearly applies, but he could not live with himself if he voted to affirm because the result would be evil.  Therefore, he recuses.

Justice Keen: Would affirm.  It is not the judge's role to tell the executive what to do (contra Truepenny), other than to offer her opinion as a private citizen.  It is also not the judge's role to determine whether the explorers' actions were "good" or "bad," or whether the statute is good or bad policy.  The judge's role is to apply the statute, which very clearly applies on its own terms to this case.

Justice Handy: Would reverse.  The statute clearly applies, but the judge must exercise common sense.  Further, public opinion overwhelmingly supports reversal, and it is clear (contra Truepenny) that the executive will not grant clemency.  Therefore, it falls to the court.

What would you do?

Update:  In addition to the articles and books linked above (and mentioned by D. Solove in the comments), Professors Paul Caron and Rafael Gely have an interesting article available on SSRN.

Coming at the case from a different perspective, Caron and Gely explore the connections between the opinions offered by Fuller in The Case of the Speluncean Explorers and the opinions in Grutter v. Bollinger.  They propose a jurisprudence of humility that recognizes that judges and lawyers hold no monopoly on wisdom and that, in certain situations, institutions other than courts may be better positioned to resolve a particular issue.  They draw some surprising connections between the two cases and try to bridge the gulf in legal literature between statutory construction and constitutional interpretation.  As Solum says, get it while it's hot!

Posted by Hillel Levin on August 16, 2005 at 10:13 AM in Hillel Levin | Permalink


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Alas for Justice Foster's first ground, modern U.S. law feels free (in an anthromorphized sense) to apply itself extraterritorially, and would certainly impose itself on the state of nature. (Witness Dmitry Sklyarov.)

Nonetheless, Justice Gowder votes with Justice Foster to reverse on the second ground, as understood via the text of the statute and the fact that the killing, being imposed on them by circumstances and necessary to save their own lives, was not "willful," but was taken under duress.

And now I'm going to go and wash and rewash my hands to try and get the damned spot of consequentialism out...

Posted by: Paul Gowder | Aug 16, 2005 11:22:19 AM


My guess is that you'd be Keen. Statutes are very important to you, and you are ruthless and unforgiving. :)

I'd be with Foster, although I think his first argument is extremely weak. The second argument is better, albeit not as well-crafted as it could be.

BTW -- There have been two interesting symposia on the Speluncean Exlorers:

Symposium, The Case of the Speluncean Explorers: Contemporary Proceedings, 61 Geo.Wash. L. Rev. (Aug. 1993)

Symposium, The Case of the Speluncean Explorers: A Fiftieth Anniversary Symposium, 112 Harv. L. Rev. (June 1999)

And this article: William Eskridge, The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell, 61 Geo. Wash. L. Rev. 1731 (1993)


Posted by: Daniel Solove | Aug 16, 2005 11:33:14 AM

I will reveal my own preferences later. But Dan, please give me a little credit. Take a look at the links in the sentence, "Indeed, there is a small cottage industry devoted precisely to offering alternative opinions." However, I did miss Eskridge.

Posted by: Hillel Levin | Aug 16, 2005 11:36:10 AM

Reverse, since the jury was instructed that they lacked the power to nullify.

I have a related question for those of you that would reverse because the law doesn't "work" in this situation. Would you also give juries the power to nullify? Or should only judges be able to ignore the law in order to further justice?

Posted by: Mike | Aug 17, 2005 11:56:25 AM

Mike: I'm totally in favor of permitting juries to nullify in criminal cases only, toward acquittal only. Why not? Does the state need its pound of flesh so bad in every case that it wants to override the consciences of its citizens?

Posted by: Paul Gowder | Aug 17, 2005 12:20:57 PM

Paul: Good to know you're not wrong about everything. ;^> I wonder, though, about those folks who would allow judges to ignore the law in this case. Why won't they also allow juries to do the same thing? What principled basis is there for allowing judges, but not juries, to nullify?

Posted by: Mike | Aug 17, 2005 12:28:20 PM

Can anybody tell which is the law school behind any of the judges? e.g. realism, positivist, etc

Posted by: carla | Oct 17, 2005 3:18:08 PM

Why everyone seems to think that they didn't do something wrong?. That they didn't have another option?. Remember that Whetmore changed his mind, they murdered him. They had the option of not doing anything. Better Betterr to die of hunger than to kill someone.

Posted by: Cristina | Oct 15, 2006 9:57:18 PM

It is to note that the idea was first instigated by Roger Whetmore and by doing so planted the seed in the head's of the other members...

Secondly the motive behind the idea was to save the life of others by sacrificing one of their own lives and in this case everyone had an equal chance to be the "chosen one".

I rest my case ;-D

Posted by: Prashanth | Feb 23, 2007 10:43:23 AM

I'm with Cristina in noting that Whetmore withdrew from the spoken contract before the die were cast. The remaining explorers may have been more justified in casting die amongst themselves, and preventing Whetmore from eating a person on the basis that he did not 'earn' it.

I agree with Foster's comment that the statute served no purpose since the context of the situation was so remote that there was no reason to believe the persons involved murdered for any reason other than necessity, though his justification about the explorers being in 'nature' or outside the context of society and law seems rather weak to me for two reasons.
The first is that communication was possible for a time with society, even though the decision to kill was made after contact was lost.
The second reason is that if we could overule this statute on the basis of being 'in nature', then if a man was to take another man out of society and into 'nature', he could then kill the man without having the statute apply to him.

Posted by: Lee | Mar 7, 2007 9:27:20 PM

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