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POSITIVE

The Chief Justice states that the statute is unambiguous, with no applicable legal defences, so it
must be applied by the court.[7] He adds that granting mercy is a decision for the executive branch
of government to make, rather than the judiciary.[8] However, the Chief Justice suggests that the
judges of the court should add their names to the petition of the trial judge and jury requesting the
Chief Executive to show mercy to the defendants. This would allow justice to be achieved "without
impairing either the letter or spirit of our statutes and without offering any encouragement for the
disregard of law".[8
Justice Tatting disagrees strongly with Justice Foster's rationales in overturning the convictions. He
criticizes the "state of nature" concept and is not satisfied with Justice Foster's formulation placing
the law of contract above the law against murder.[12] He also notes the difficulty of applying
the purposive approach to the criminal statute which has multiple purposes, including retribution
and rehabilitation.[13] He distinguishes the self-defence exception that was created by past judges
on the basis that it is not a "willful" killing, so it does not contradict the wording of the statute.[14] He
finds that the self-defence exception could not be applied to the present case as it would raise "a
quagmire of hidden difficulties".
The judge cites the case of Commonwealth v Valjean,[b] in which starvation was held not to justify
the theft of a loaf of bread, let alone homicide. These combined objections lead Justice Tatting to
reject Justice Foster's reasoning as "intellectually unsound and approaching mere rationalization."
The fourth opinion begins by excluding executive clemency and the morality of the defendants'
actions as relevant factors to the court's deliberations.[18] Rather, the question before the court is
purely one of applying the legislation of Newgarth and determining whether the defendants wilfully
took the life of Whetmore. He criticizes the other judges for failing to distinguish the legal from the
moral aspects of the case.[18] While he shares their preference that the defendants be spared from
death, he respects the obligations of his office to put his "personal predilections" of what
constitutes justice out of mind when interpreting and applying the law.[18]
Justice Keen objects vehemently to Justice Foster's purposive approach allowing the plain words
of the law to be ignored.[19][20] He emphasizes that laws may have many possible purposes, with
difficulties arising in divining the actual "purpose" of a piece of legislation.[21]
Justice Keen recalls that earlier instances of judicial activism in Newgarth had ultimately led to civil
war, which established the supremacy of the legislature over the judiciary.[21] He concludes by
criticizing the courts' creation of the self-defence excuse, stating that waiting for the legislature to
enact such revisions would have led to a stronger legal system.[19]

Statute is unambiguous and must be applied by judiciary notwithstanding personal views


Clemency is a matter for the executive, not the judiciary
Court should joint petition to Chief Executive for clemency
Criticises Foster J's approach
The natural law under the posited "state of nature" prioritises freedom of contract
above the right to life
Purposive approach to statutory interpretation is difficult when there are multiple
purposes (here, retribution and rehabilitation)
Cannot decide case due to competing legal rationales and emotions
Criticises Chief Justice's proposed appeal to Executive for clemency given need to
respect separation of powers; should only make appeal in capacity as private citizens
Moral considerations are irrelevant in applying the statute
PART I: THE ALLEGORY/STORY
Lon L. Fullers the case of Speluncean Explorers was first published in 1949 in the Harvard Law
Review.[8] Fuller wrote this story in order to illustrate a number of different theories about the
nature of law and legal reasoning. The various opinions are written by fictional judges who represent
different theories, and thus each opinion illustrates one or more of those theories.
In the case of Speluncean Explorers, Fullers lesson is that the laws basic integrity is to be found
within the very processes which are utilized in the attainment of its proclaimed goals. When Lon
Fuller had put together his Speluncean Explorers hypothetical in the 1949, there were only two
significant jurisprudential philosophies in the air: natural law and positivism. The former had largely
been discredited, but was revived in the hypothetical by Justice Foster[9], who claimed that the
trapped explorers were in a moral, if not geographical "state of nature."
This case is set in a mythical future, 4300 A.D. Fuller did not choose the date in random, he
estimated that in 1949[10], the centuries which separate us from the year 4300 are roughly equal to
those that have passed since the Age of Pericles. The case is heard in the Court of General Instances
of the County of Stowfield in the Commonwealth of Newgarth, which has a charter of government
drawn up originally by the survivors of a past catastrophe (the Great Spiral). The case is based on a
statute N.C.S.A (N.S.) which states in specific terms in Section 12-A thatwhoever lawfully takes the
life of another shall be punished by death.

1. JUDICIAL PRESENCE, courts should decide in the absence of any jurisprudence.


2.