Professional Documents
Culture Documents
18 November 2002
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I vote not guilty. This fictional case is a powerful inquiry into the nature of law. It
raises questions about what value-based approach to constitutional law is more valid than
others. How far should the wording of the statute be taken literally? How much leeway
can be given to its interpretation? Natural law theory or legal positivism? Original intent
or purposive interpretation? I shall explain these terms and structure my paper around
these issues. I will also address the nature of the contract made in this case and apply it to
my defense.
My view most closely aligns with that of Justice Foster’s. For example, I agree
that they are indeed in the state of nature, defined by the fact that they are not within the
limits of the physical enforcement of the law. No police can arrest them, no soldier can
kill them. They would die anyway, so it is useless to observe the common law under
these unique circumstances. It is commonsense. They are not within the reach of the arm
of the law. This is like the case of a mutiny that happens on a ship out at sea in
international waters, over which no law has enforcement over, at least during the time it
is out at sea. In this case, the explorers have rationally concluded that if they were to
follow the common law, none of them will survive, so they had to make the law as
pertinent to their circumstances by making a pact. As Justice Foster argues, they had to
create “…a new charter of government appropriate to the situation in which they found
themselves.”
I agree with Justice Foster’s premise that “…all positive law is based on the
possibility of men’s coexistence…” how then is the judge supposed to treat this case if it
happened in a state of nature? I propose that it is irrelevant to judge this case under the
positive law. The case should not be judged at all because the basis under which the law
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is valid itself is absent in this case. Consequently, the men should be judged innocent
In answering the question whether Justice Foster’s “state of nature” argument has
any role to play in judge-made law, I presume that this means to ask if judges should alter
natural law that purportedly rules all human conduct. This is indeed one of the issues at
the heart of the debate over the nature of jurisprudence and the role of judges, which is
that of using the natural law theory approach as a basis for legal theory.
By definition, the role of the judge should be devoid of any political power. In
Ely’s article, Hamilton’s Federalist 78 defines the role of the judiciary as having “neither
force or will”, being “purseless” and “swordless”, and that “…from the nature of its
functions, will always be the least dangerous to the political rights of the Constitution;
because it will be least in a capacity to annoy or injure them…” So what this means is
that judges cannot create law, prima facie. Indeed this is rightly so.
Lockean analysis states that from the state of nature arises the will of the people,
which forms the legislative through the democratic process of elected officials as
arguments in forming positive laws. The judge has no role in this process. So the judge
cannot make laws based on “state of nature” arguments because it has already been
Natural law theory has an obvious and big flaw in that it is notoriously vague and
unreliable as a consistent basis for formulating principles of just law. Any kind of
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contradicting arguments that all call themselves natural law theory. This is demonstrated
ably in Ely’s article. This contributes further to the shaky uncertainty in justifying judge-
However, there is the fallacy that the judge is making laws in this case by
seemingly contradicting the wording of the statute “Whoever shall willfully take the life
of another shall be punished by death”. He is still within his proper role by interpreting
the law as the law sees fit. What I mean is that of course, the law should allow for some
degree of purposive interpretation. With this in mind, judges must ask themselves what is
the purpose for the law in creating it and interpret the law accordingly to the case at hand.
adherence to what one calls “the spirit of the law” rather than its letter. Adhering to the
letter does not necessary make the principle neutral as can be seen whenever a law
becomes a dead letter due to lack of political will of enforcement, apathy to it,
An example of this is how an unfair law can be made such as the case of the
historical evolution of the law surrounding the rights of Native Americans, or how
Reconstruction era laws designed to protect the equality of blacks were seemingly
followed to when it came to plain meaning but in spirit was not. There was still
widespread animosity in the South that paid lip service to the explicit wording of the law
but achieved their discriminatory goals by other invidious means. Clearly, an amendment
to the legislature needed to address this injustice cannot be possible without appealing to
some kind of purposive intent of the law, because its plain meaning is not enough. Moral
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progress is only possible this way, when the judiciary brings out into play the purpose
A possible counter argument goes along the line of Bork’s theory of original
intent: “that a judge is to apply the Constitution according to the principles intended by
those who ratified the document.” A supporting argument for this is Bork’s concept of
neutral principles: “… courts must choose principles which they are willing to apply
safeguard against political judging. I agree that judges cannot evaluate the law, that is, no
political judging, because it is not their role, but they can interpret it.
Bork’s theory has some problems. First of all, it is false to say that any kind of
viewpoint is truly neutral in any ontological sense. Bork’s justification of original intent
as a constitutional approach via neutral principles is not really neutral at all when one
questions the basis of that neutrality. It is a well-known fact that it is often the norm than
the exception that the political affiliation of chief justice nominated by the president is
aligned with the political ideology of the president’s party. How then is it possible to be
neutral? If the legislature itself is not politically neutral, will the political results of
judicial ruling be neutral? Bork does not deny this but argues that the intent itself is not
statute, some level of generality and vagueness is inevitable, which requires some degree
of loose interpretation. It is precisely this freedom that allows judges to interpret the law.
A famous example of this is how a few words in the first Amendment: “…abridging the
freedom of speech…” can invite so much controversy and interpretation. In fact, the
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wording itself invites judges to interpret each case in its own light. Is then no other way
Plain meaning or Justice Keen’s legal positive argument weakens when one
considers the fact that the statute cannot enumerate every single possible case for judicial
treatment, like this unique case of the Speluncean explorers. There will always be
precedent cases challenging the relevance of the plain meaning of the statute. For
example, this is notable in the case of legal theory surrounding technological issues. It is
not that our moral understanding fails to keep up with the changes but the law, but the
Justice Keen’s distinction between purpose and scope can lead to absurdity
because it is still a strict reading of the statute without reference to some large overriding
purpose of some moral end. A proper reading of scope is defining the boundary over
matters which the law has jurisdiction over, for example, the scope of state authority over
an individual’s private sphere and liberties. This has to take into account the weighing of
example of this is in the area of public education where the purpose of education
overrides the individual liberty of free speech when it conflicts with this purpose.
Original intent and legal positivism are forms of judicial conservatism. Their
justification based on neutral principles “does not by itself tell us anything useful about
the appropriate content of those principles or how the court should derive the values they
embody.” (Ely)
Law can be said to the public expression or understanding of what is right and
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expressed against the viciousness of any crime by the public. Legal positivism is a form
of moral skepticism that does not impose on the judges the necessity of promoting
morally just outcomes or preventing moral injustice. This does not make sense if the law
This leads us to ask what leads to this kind of moral sensibility. Is it the moral
any moral indicator, as history has shown. If majority rule were to be established as de
facto law, then minority rights will be trampled upon, which violates the principle of
Therein lies the difficulty in Justice Handy’s championing of the wishes of the
people. In his words, “men are ruled, not by words on paper or by abstract theories, but
law as a means to some moral ends, not as an end in itself. Legal positivism does the
opposite. Both the former admittedly do not claim any justification on a basis of neutral
principles which is alright considering the fact that neutrality is an impossible goal
law rather than a rigidly legalistic way in order for any kind of progress to occur.
However, I do agree with that a law should not be strictly adhered to if it leads to
moral and legal absurdity. Ten men have already died to save the four explorers and to
then condemn the four explorers to death after the rescue does indeed sound absurd at
face value. Laws governing human affairs are sometimes instituted so as to promote
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efficiency by following a set of commonly agreed rules. However, this practicality itself
in the case of bureaucracy, which expends wasteful energy. A strict legalistic reading of
the rules will undermine its purpose in this example. The rules have to evolve in order to
accommodate unforeseen circumstances and to govern unique cases. This will not be
Justice Foster’s self defense argument is a valid one to be applied to this case.
They killed in self defense because it is a situation of “either you or me, and better you
than me” to put it crudely. However, it is more like “better one than many” which is even
more acceptable. As he mentions, accepting this argument “cannot be reconciled with the
words of the statute, but only with its purpose.” In this case, the purpose of the law
precludes killing in self defense as murder. Other purposes of law such as its deterrence
value, as “an orderly outlet for the instinctive human demand for retribution and for the
rehabilitation of the wrongdoer” (Justice Tatting) Even accepting Tatting’s argument that
purposes may be varied and conflicting, none of the purposes he mentions will be
violated by ruling the defendants innocent in this particular case. This interpretation of
self defense argument is also supported in prior case of Commonwealth v. Parry, which
example of the bread stealer, the stealer had other lawful means of obtaining bread. It is
his laziness and neglect that is being punished. The Speluncean explorers had no
alternative means of survival. Their intention is not to kill per se, but to survive. The
killing is not “willful”. Thus, it is even possible to arrive at the same conclusion of not
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guilty with a strict reading of the plain meaning of the statute because the “willful”
multifold and controversial, than other means of legal interpretation. However, I argue
that purposes are often broad and more commonly agreed upon and easier to decide than
original intent. Hence, they can provide a sound moral basis for legal interpretation. The
purpose of any law should be clear from the outset as far as possible and an overriding
clause of this purpose should be worded into the Constitution in order to resolve
unique cases such as this one that seemingly contradicts the law on a superficial basis.
impulse deeply ingrained in human nature.” Is not this response an instinct for survival,
one of the means by which is to kill in self protection? This instinct for survival overrides
all other moral concerns and mitigates in favor of the defendants. It is this purpose then
that the law recognizes. A strict legalistic approach will obscure this larger moral forest
for the trees of the words. The definition of “willful” as deliberate is insufficient in this
case because what is deliberate in Justice Tatting’s sense is merely an application of the
functions by the opposition, also mentioned in Justice Keen’s opinion, that this means
allowing the judges to impose their own values on the case, leading to an undemocratic
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process of law, is often stated. This is the danger that Chief Justice Truepenny wanted to
avoid by appealing to the executive to vindicate the men because there was apparently
some conflict with his own values “as a private citizen”, even more broadly of some kind
overrated. Indeed, the court can be a powerful influence in the running of the country,
even somewhat immune to the formal checks laid on it. Legislative challenge to its
constitutional interpretation has historically been fraught with much doubt, laying force
to the notion of an independent judiciary doing best when left alone. The court has also
constitution amendment more difficult even where it is needed, as in the deplorable state
of civil rights before the eponymous movement. Ely says that this cry of anti-democratic
“… (the Court) understands that if it gets too rambunctious – if it too regularly exercises
what the public will understand are properly political functions – those (formal) checks
will be invoked.” Historically too, American public opinion has been in line with the
course of judicial constitutional review and the public has come to even expect, to some
degree, that the court will intervene on their behalf on some unfair constitutional practice.
framework and to avoid gross obvious moral violations by sticking strictly to the
wording. Even if “all moral talk represent only personal value choices and arbitrary
preferences” (Macedo), there can still be some general rules that can govern purposive
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concern, because “the defense of democracy itself demands some moral claims.”
(Macedo)
Justice Foster espouses the importance of the contract the men had made. From a
social contract perspective, they have mutually consented to a compact in which one of
them has to die. It is a fair contract, ruled by the mathematical law of probability.
Consent is present in this case which validates the contract. Lockean theory holds that the
social contract is sacrosanct once entered, the terms of which applies to everyone and is
irrevocable, the moral authority of which is derived from the consent of the parties
involved. In this case, the nature of the consent is explicit, rather than tacit, which is
fulfills precisely the basis of the validity of the Lockean contract. Whetmore knowingly
entered the contract with the possibility of being killed. He was forewarned and informed
“Why are we bound to observe our promise? It must here be asserted, that the commerce
and intercourse of mankind, which are of mighty advantage, can have no security where
men pay no regard to their engagements.” (David Hume, “Essay XII: Of the Original
Contract”)
examining the views of the various judges. I have defended my case with a leaning
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