rules.

Law and morality are intertwined and, according to Fuller a law which is completely divorced
Legalese from morality, ceases to be law.

Tuesday, 31 January 2012 Fuller was an American, a Texan to be precise. He served as professor of Law atHarvard
University for many years, and is noted in American law for his contributions to the law of
The Case Of The Speluncean Explorers An Analytical Study
The Case of the Speluncean Explorers A Study contracts. His debate with H.L.A. Hart in the Harvard Law Review (Vol. 71) was of significant
importance for framing the modern conflict between legal positivism and natural law. Fuller was an
PROLOGUE
important influence on Ronald Dworkin, who was one of his students at Harvard Law.[5] He is
regarded as one of the greatest legal philosophers of the 20th century. He had a profound effect on
Professor L. Fuller was adept in explaining law through allegory. It is said that there is no better way
American jurisprudence.
to study law than to read cases. There is no better way to study legal philosophy than to see how
various theories clash with each other. The Professor achieved all of these objectives in the brilliantly
Fullers The Morality of Law, first published in 1964, is his most famous and, perhaps, his most
imagined case that he invented The Case of the Speluncean Explorers.
controversial work. At a time when legal positivism still dominated jurisprudence, the suggestion that
law and morality were not only connected but connected intimately was such an affront to scientific
Professor Lon L. Fuller's Case of the Speluncean Explorers is said to be the greatest fictitious legal
thinking that it brought repeated charges of axe grinding from one reviewer.[6]
case of all time. That is saying a lot, for it has some stiff competition. While its competitors may
outdo it in courtroom drama, character development, or investigative suspense, none matches it in
CASE OF SPELUNCEAN EXPLORERS
legal depth or dialectical agility. It doesn't show what makes some lawyer's caseload interesting, but
This famous fictitious legal case was created by Lon L. Fuller in his article, "The Case of the
what makes law itself interesting.[1] His story of Rex is another interesting allegory[2] which speaks
Speluncean Explorers," Harvard Law Review, vol. 62, no. 4 (1949) pp. 616-645. The case tells the
about the characteristics which a law shouldnt have. The following statement by Fuller in his book
story of a group of spelunkers (cave-explorers) in the Commonwealth of Newgarth, trapped in a cave
Morality of Law outlines his philosophy:
by a landslide. As they approach the point of starvation, they make radio contact with the rescue team.
The only formula that might be called a definition of law offered in these writings is by now
Engineers on the team estimate that the rescue will take another 10 days. The men describe their
thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of
physical condition to physicians at the rescue camp and ask whether they can survive another 10 days
rules. Unlike most modern theories of law, this view treats law as an activity and regards a
without food. The physicians think this very unlikely. Then the spelunkers ask whether they could
legal system as the product of a sustained purposive effort.[3]
survive another 10 days if they killed and ate a member of their party. The physicians reluctantly
answer that they would. Finally, the men ask whether they ought to hold a lottery to determine whom
ABOUT THE AUTHOR
to kill and eat. No one at the rescue camp is willing to answer this question. The men turn off their
Fuller (1902-78) is a representative of the school of legal thought known as purposive
radio, and some time later hold a lottery, kill the loser, and eat him. When they are rescued, they are
jurisprudence[4]. This is a kind of jurisprudence which sees the activities of the courts as reflecting
prosecuted for murder, which in Newgarth carries a mandatory death penalty. Fuller wrote five
the very purposes of the law, which turn upon the subjecting of the human conduct to the control of
 Supreme Court opinions on the case which explore the facts from the perspectives of profoundly
different legal principles.
The result was a focused and concrete illustration of the range of Anglo-American legal philosophy at
mid-century- THE SPELUNCEAN EXPLORERS CASE.
It is generally believed that Fullers case is based on two real cases, namely
U.S. v. Holmes (1842) and
Regina v. Dudley & Stephens (1884).
These two U.S cases can be called as life boat cases in which disaster at sea was followed by
homicide and prosecution. In the Holmes case, the homicides were to lighten a badly overloaded
lifeboat. In Dudley & Stephens, the homicide was to create a meal for the starving survivors.[7]
One can easily see the uncanny similarities between the facts of these two cases and that of Fuller.
Fuller borrowed from these cases for his own: extremities of desperation, lotteries, cannibalism,
popular sympathy for the defendants, politically difficult prosecutions, defenses of stark necessity,
jury convictions and the possibility of pardons. Even small details, like the jury's special verdict in
Dudley & Stephens, comes up again in Fuller's case. But an inventory of these borrowed elements
only brings into relief the extent of Fuller's creativity. He moved the accident from the high seas to a
cave within Newgarth.
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.

In this paper, the parts have been sub-divided as follows: The facts of the case are outlined as follows:
1. Allegory The four defendants and Roger Whetmore were members of a Speluncean Society in the
2. Opinion of Chief Justice Truepenny. Commonwealth of Newgarth. This society encouraged the exploration of caves. Early in May of 4299
3. Opinion of Justice Foster. they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the
4. Opinion of Justice Tatting. interior of a limestone cavern of the type found in the Central Plateau of this
5. Opinion of Justice Keen. Commonwealth.[11] While exploring the cave, when they were in a position remote from the mouth
6. Opinion of Justice Handy. of the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the
7. Conclusion and Findings only known opening to the cave, and therefore, they were all trapped within the cavern. The five men
were carrying scant resources with them. On their non-return the families of the explorers informed
the Society which in turn informed the State. A rescue party was promptly dispatched for their rescue.
In the rescue operations, 10 workmen lost their lives in fresh landslides. A great expense was also
incurred to rescue the trapped men.
It was found that one of the explorers has a portable radio set capable of sending and receiving
messages. Therefore, contact was established by the rescue team with the trapped men. The five
trapped men, after learning that it would be at least ten more days until they were rescued, sought a
professional medical opinion as to whether or not they could possibly survive this duration. Upon
being informed that they would not, they deliberated for eight hours after which they sought counsel
first from the physician, then from a government official, and finally from a minister as to whether or
not it would be advisable to cast lots and kill and consume one of their members so that the others
may survive. None of the three parties were willing to answer. None of them answered in the
affirmative or negative. With their question unanswered, the men severed radio contact with the
people outside.
On their eventual release, it became apparent that some twenty three days after their entry into the
cave, the defendants had killed and eaten Whetmore. In evidence, it was indicated that Whetmore had
suggested that the groups survival would be impossible without nutrient, and that this would
necessitate the eating of flesh of a member of the group. It was also said that Whetmore himself had
suggested the casting of lots by dice to choose such unfortunate member. However, Whetmore after
reflection withdrew from the offer terming it frightful and odious. He was accused by the defendants
of breach of faith and they proceeded to cast dice. Whetmore also declared that he had no objection to
one of the defendants casting the dice on his behalf. The throw of the dice was unfortunately against
Whetmore. The other group members therefore killed him after which they ate his flesh.
After the defendants had been rescued from the cave and their suitable treatment, they were indicted
for the murder of Whetmore in the Court of General Instances, the County of Stowfield. The court
found all of them guilty and were sentenced to death by hanging.
Following the discharge of the jury, its members joined in communicating with the states Chief
Executive and requesting that the death sentence be commuted to imprisonment for a period of six
months. Similar action was taken by the Trial judge. The defendants brought a petition of error to the
Supreme Court of Newgarth. The court issued its opinions in the year 4300.
In the trial that ensued, the five judge bench gave differing opinions and profoundly different ratios
for the same. Fuller wrote these five opinions as representing different schools of thought.
PART II OPINION OF CHIEF JUSTICE TRUEPENNY
In his argument Chief Justice Truepenny[12] after stating the facts as mentioned in Part I of this paper
ruled in favour for strictly applying the letter of the law rather than interpreting the law. According to
him the jury and the trial judge followed a course that was not only fair and wise, but the only course
that was open to them under the law. He however also proposed to his colleagues that they follow the
example of the jury and trial judge by joining in the communications they have addressed to the Chief
Executive of the State for clemency for the defendants.
Chief justice Truepenny appears to be an Advocate of Textualism or Institutionalism. He represented
the Positivist[13] perspective. According to this school law should be given a literal interpretation.
Law is what it is rather than what it ought to be. That is, it is free from moral considerations once it is
enacted by a sovereign authority.
VERDICT: He affirmed the decision of the trial court but however requested clemency also.
ANALYSIS
The main thrust of this argument presented by Chief Justice Truepenny is that the statue under
scrutiny is not ambiguous and is plainly stated for applying the law rather than interpreting the law.
And, as the statue states, Whoever shall willfully take the life of another shall be punished by death,
he said the defendants should be hanged till death. However, Truepennys argument has much
strength which, at face value, can be applied to this case in question. Arguably, first, the language of
the statue applies directly to what the defendants did to Roger Whetmore. Therefore, there is no
argument not to punish defendants following the existing law. Also, there is no question into the
matter that the men on trial willfully took the life of Whetmore. It is an admitted fat that they did.
However, there is another aspect of this peculiar case. As has been stated in the testimony of the
defendants that Whetmore was in concurrence with the decision to cast lots to determine his own fate.
Now, therefore, the question is, does all accountability of Roger Whetmores death reside in the
defendants alone, or should Whetmore be held partly responsible as well for the crime.
Therefore, it is submitted here that it would be impractical to merely apply the statue on the grounds
of the text and ignoring the basic foundation of why law has become law. There should be utilization
of prudence in decision of cases and each case should be decided on its merits. What law requires is
intelligent obedience, not idiotic adherence.
To conclude, Chief Justice Truepenny's legal analysis was short. He recommended a plea for
clemency to the Chief Executive because he felt the statute was clearly against the conspirators.
But there is no reflection or consideration of the statute itself; it is assumed to speak against the
defendants. The appeal for clemency seemed as an abandonment of the judicial role, a sort of "cop
out," or an admission that the legal system was not really able to handle the complexities of the
issue.
OPINION OF JUSTICE FOSTER
Judge Foster it is said represents the alter-ego of Fuller. He represents the natural school[14] of
jurisprudence. His opinion is the best written one of the five.
Justice Foster expressed shock at hearing of Chief Justice Truepennys opinion. He argued that the
Law of the Commonwealth is at stake if we try to textually apply the law in this case. According to
him, the defendants when trapped in the cave were outside the jurisdiction of Commonwealth of
Newgarth.
VERDICT: In his verdict, he set aside the verdict of the Trial court and held that purposive
construction should be given to the statutes.
ANALYSIS
Justice Foster did not believe that the law compels the monstrous conclusion that the defendants were
murderers. On the contrary, he said it declares them to be innocent of any crime. He rested this
conclusion on two independent grounds. He said the defendants are not guilty on both of these
grounds independently of each other.
The first of these grounds is that the enacted or positive law of this Commonwealth, including all of
its statutes and precedents, is governed instead by what ancient writers in Europe and America called
"the law of nature." When a situation arises in which the coexistence of men becomes impossible,
then a condition that underlies all of judicial precedents and statutes has ceased to exist. He says,
when that condition disappears, then the force of our positive law disappears with it. It is similar to a
situation in which a crime is committed outside the territorial jurisdiction of the State. This has the
consequences that the law applicable to them is not the enacted and established law of this
commonwealth, but the law derived from those principles that were appropriate to their condition. He
therefore said applying this principle the defendants were not guilty of any crime.
He says that positive law is inherently territorial. Therefore, when a person is outside its scope, the
rules of law would not apply to him. Applying this principle in the instant case, he says that the
defendants were separated from the State by rock walls. Within them the State was not even able to
supply them with succour. He adds that the State was created by a social contract to provide peace,
order and succour to all.
The second ground that he takes is that one of the most ancient bits of legal wisdom is the saying that
a man may break the letter of the law without breaking the law itself. According to him every
proposition of positive law should be interpreted reasonably, in the light of its evident purpose. In the
judgment, Judge Foster says Centuries ago it was established that a killing in self defense is
excused. There is nothing in the wording of the statute that suggests this exception. But the exception
in favor of self-defense is not out of the words of the statute, but out of its purpose. When the
rationale of the excuse of self-defense is thus explained, it becomes apparent that precisely the same
reasoning is applicable to the case at bar. That is, he argues that self-preservation is the most basic of
all human tendencies. In the instant case, the defendants did not kill Whetmore out of mala fides but
because they wanted to give succour to their starving bodies. Therefore, this was a killing in self
defence.
He further sites the case[15] of Commonwealth v. Staymore wherein it was held that a person cannot
be held guilty for anything which was beyond his control. It is here submitted that arguably, when a
man made law is enacted or enforced, there is always a reason why the law was constructed in the
first place. And therefore, law should be construed within its purpose.
Further, he adds that if the State could sacrifice 10 lives to save one, why cannot one life be sacrificed
to save four.
To conclude, Justice Foster based his justification on the following. He says when we consider a case
which has taken place a mile beyond territorial limits of a state; no one would pretend that the law of
the state would be applicable to the case. This means that law is not absolute, and that the positive law
is predicated on the possibility of men's coexistence in society. When a situation arises in which the
coexistence of men becomes impossible, then a condition that underlies all of our precedents and
statutes ceases to exist. When that condition disappears that the force of our positive law disappears
with it, then the law of nature works. Self-defense is a right not out of the words of a penal statute
(like the one in this case), but out of its purpose. Even though there is nothing in the wording of the
statute that suggests self-defense, the exception of self-defense is accepted.
OPINION OF JUSTICE TATTING.
Judge Tatting had a complete opposite view of that of Judge Foster. He said he cannot accept any of
the latters opinions, more so the first part of it. According to Tatting J. law of contract cannot be
more powerful than law of murder. Secondly he asked a very fundamental question when exactly
did the 5-member company move from a state of civil society to a state of nature. Was it when the Further, it seems from the allegory that Judge Tatting believed in the power of judicial precedents. He
party entered the cave, or when the landslide occurred or when the party crossed the threshold of
starvation? Further, he asked the Supreme Court of Newgarth was created out of a positive law. From
where does the court arrive its authority to decide a dispute on law of nature rather than law of the
State?
Verdict: He withdrew from the case.
ANALYSIS
Tatting J. also represented the positivist school.
Tatting J. argues that it is true that a statute should be applied in the light of its purpose, and that one
of the purposes of criminal legislation is recognized to be deterrence. The difficulty is that other
purposes are also ascribed to the law of crimes. It has been said that one of its objects is to provide an
orderly outlet for the instinctive human demand for retribution. He also argued that law of retribution
is equally important if not more than law of deterrence[16] in criminal law. He quoted the case
of Commonwealth v. Scape wherein it was held that the one of the objects of law is also to provide
outlet for retribution. It has also been said that its object is the rehabilitation of the wrongdoer as
in Commonwealth v. Makeover.
He also said that the there is no doubt that the defendants have committed murder.
Citing Commonwealth v. Valjean[17], he said if a person cannot be pardoned for stealing a loaf of
bread, how can one be forgiven for killing a person out of starvation.[18] Further, he says assuming
that we must interpret a statue in the light of its purpose, what are we to do when it has many
purposes or when its purposes are disputed? The familiar explanation for the excuse of self-defense
cannot be applied by analogy to the facts of this case. These men acted not only "willfully" but also
with great deliberation and after hours of discussion what they should do.
He however gave credence to Foster J. for his theory of purposive construction of a statute. He added
that it is a matter of regret that the Prosecutor saw fit to ask for an indictment of murder. If we had a
provision in our statutes making it a crime to eat human flesh, that would have been a more
appropriate charge. If no other charge suited to the facts of this case could be brought against the
defendants, it would have been wiser not to have indicted them at all.
was confused as to what effect this precedent [19] would have on future cases before the courts.
Since He was wholly unable to resolve the doubts that beset him about the law of this case, He
declared his withdrawal from the case
From the allegory, it can be said that Judge Tatting ultimately withdrew from the case because of
the overwhelming dissonance he felt after thinking through the issues. He disagreed with Foster on
the state of nature issue, but he agreed with Foster that there is precedential value in his theory
of self-defense. He however, did not see statutes as having just one purpose, and according to him
there are other explanations of self-defense stressing the importance of "non-willful" conduct. But the
conspirators acted "willfully." And that is the reason for his confusion. He sees that both
perspectives (acquittal and conviction) have equally strong arguments and he cannot decide.
OPINION OF JUSTICE KEEN
At the outset of his opinion, Judge Keen says Executive clemency is a question for the Chief
Executive, not for the judges to direct the Chief Executive. He therefore disapproved of that passage
in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to
what he should do in this case.
He said while deciding whether what these men did was "right" or wrong" "wicked" or "good is not
for a judge to decide. He should not apply his conceptions of morality, but the law of the land. The
sole question before us, therefore, he said, for decision is whether these defendants did, within the
meaning of N.C.S. A. (N.S.) 12-A, willfully take the life of Roger Whetmore. On this count, any
candid observer would concede at once that these defendants did "willfully take the life" of Roger
Whetmore. He then proceeded to acknowledge that hard decisions are never popular, but that hard
decision may even have a certain moral value by bringing home to the people their own
responsibilities toward the law that is ultimately their creation and by reminding them that there is no
principle of personal grace that can relieve the mistakes of their representatives, i.e. the legislators.
VERDICT: He found the defendants guilty.
ANALYSIS
Keen J too belonged to the positivist school. He appears to be an advocate of Textualism. He stressed
that asking for executive clemency is improper for judges, although they may do so in their capacity
as private citizens. He said that the major problem in the case is the failure of others to separate
law and morality. Once this is done, one realizes that statutes are not necessarily embodiments
of moral thoughts and a decision is much easier.
He said there was a time in the Commonwealth when the judges did in fact legislate very freely. But
we now have a clear-cut principle, which is the supremacy of the legislative branch of our
government. From that principle flows the obligation of the judiciary to enforce faithfully the written
law in accordance with its plain meaning without reference to our personal desires or our individual
conceptions of justice. Here, he outlines the principle of strict adherence to separation of powers of
the three chief organs of government.
Then, he goes into the history of the community, stressing that judicial activism or indeterminacy of
interpretation actually was a factor in precipitating a civil war.[20]He also declines to accept the
theory that there is only one purpose for a statute. It really is impossible for a judge to divine
legislative "purpose." Finally, a hard and harsh decision here is probably good, for it forces the
legislature to reconsider the statute. He says it is for the people to remind the Legislature of his
mistake and not for the judiciary. The scope of the exception in favor of self-defense as it has been
applied by the Court is plain: it applies to cases of resisting an aggressive threat to the party's own
life. It is therefore too clear for argument that this case does not fall within the scope of the exception,
since it is plain that Whetmore made no threat against the lives of these defendants
To conclude, it can be said that according to him a law in the form of a law can be enforced if it is a
good law or a bad one. And lawyer should think of the letter of the law not personal moral. And the
process of the judicial reform requires steps on the part of the Legislature/executive.
OPINION OF JUSTICE HANDY.
Justice Handy believed that law should be what the public wants. He disproved of what he called his
colleagues' ability to throw an obscuring curtain of legalisms about every issue presented to them for
decision. Judges should not go into positivism or natural law, right or wrong. According to him, since
by a poll it was said that the majority populace wanted the defendants to be let off with a token
punishment, the judges should comply with this popular opinion.
According to him government is a human affair, and that men are ruled, not by words on paper or by
abstract theories, but by other men. They are ruled well when their rulers understand the feelings and
conceptions of the masses. They are ruled badly when that understanding is lacking. Judges need to
be in tune with popular opinion. He disapproved of the practice of the courts. He observed- Lawyers
are hired by both sides to analyze and dissect. Judges and attorneys vie with one another to see who
can discover the greatest number of difficulties and distinctions in a single set of facts. Each side tries
to find cases, real or imagined, that will embarrass the demonstrations of the other side. To escape this
embarrassment, still further distinctions are invented and imported into the situation. When a set of
facts has been subjected to this kind of treatment for a sufficient time, all the life and juice have gone
out of it and we have left a handful of dust.
According to him, the case before the court was a question of practical wisdom, to be exercised in
context, not of abstract theory, but of human realities. He said the most obvious advantage of treating
forms and abstract concepts as instruments is that it permits one to go about ones daily tasks with
efficiency and common sense. When these conceptions are applied to the case before the courts,
decision becomes perfectly easy. He further added that this case has aroused enormous public interest.
In one widely read newspaper chains poll, on the question, "what do you think the Supreme Court
should do with the Speluncean explorer? about 90% expressed a belief that the defendants should be
pardoned or let off with a kind of token punishment. It is perfectly clear, then, how the public feels
about the case. And this is the decision the judges should give.
VERDICT: He set aside the verdict and said that the court should follow public opinion.
ANALYSIS
Judge Handy is the judge of practical/popular wisdom.[21] In the allegory, he echoed the views of
sociological school of jurisprudence. Practical wisdom is a significant category for Aristotle in
his Nicomachean Ethics and refers to the skill needed in life to deliberate and reach decisions (in
contrast to theoretical knowledge or practical skill).[22] This judge is very solicitous of public
opinion, believing that the legitimacy of the judicial enterprise is because it reflects the will of
the people. This aspect has practical implications in our media-driven society. Many a times we see
that popular media has had an effect on judges.[23] Further, trial by media has been an issue of hot
debate in legal as well as popular circles since some time now.
This was the last of the five opinions. The Supreme Court being equally divided, the conviction and
the sentence of the Court of General Instances was affirmed. The defendants were ordered to be
hanged.
CONCLUSION AND FINDINGS
Fullers case looks at separation of powers issue (through the notion of recommending clemency to
the Chief Executive), natural law theory, positivism, statutory interpretation (whether there are "gaps"
in statutes and how to "fill" them), the purpose(s) of statutes, the role of precedents and how to use
them, the relationship of law and morality, judging as the manifestation of practical reason, various
theories of self-defense. All in all it deals with almost all the issues that could be contemplated in
mid-20th century.
As said earlier, it is widely believed that Fuller based his case on two real cases. A brief gist of the
cases is produced below for the benefit of the reader.
U.S. vs. Holmes (1842)[24]
FACTS: In 1841, the U.S. immigrant ship William Brown sailing from Liverpool to Philadelphia,
sank after hitting an iceberg. 42 people, including the mate and several sailors, found themselves on
one of the life boats; after a day or so it began to spring leaks and was sinking. Crewmen, including
the defendant Alexander William Holmes, believed that their overloaded lifeboat was in danger of
itself sinking and put 14 or 16 passengers overboard to their inevitable deaths in the frigid water. On
his return to Philadelphia, Holmes was arrested and charged with murder. However, the grand
jury rejected the indictment and substituted manslaughter. The judge in the United States circuit
court for the Eastern District of Pennsylvania instructed the jury that necessity might be a complete
defence but that "before the protection of the law of necessity can be invoked, a case of necessity
must exist, the slayer must be faultless, he must owe no duty to the victim." The jury convicted
Holmes and the principle of necessity was not tested by any higher court.
Holmes was found guilty and sentenced to six months in prison and a fine of $20; he served the
time but did not have to pay the fine, because he was eventually pardoned by President John Tyler.
Regina vs. Dudley & Stephens (1884)[25]
 There was another case in 1884 (Queen v. Dudley) which resembles the Speluncean Case even more
closely, insofar as it too involved cannibalism, albeit cannibalism on the high seas. The facts of the
case are as follows:
A yacht sailing from Essex, England to Sydney, Australia sank, leaving four crew members in a 13-
foot lifeboat: the captain (Dudley) and the mate (Stephens), and two seamen, Brooks and Parker.
Parker was 17 years old and already weak. After several days without food and water, Dudley
suggested to Stephens that they conduct a lottery to choose one person to be killed and eaten by the
others. Stephens refused. Later Dudley convinced Stephens that they should kill Parker, who was
already ill and without family, and eat him. They did so and consumed about half of Parker over the
next few days, at which point they were rescued by a German Boat. The boat put in at Falmouth,
England on its way back to Germany. There the men were charged with murder. The public was on
the side of the defendants, so the judge asked the jury for a special verdict: not a finding of guilt or
innocence, but simply a finding on the facts.
Based on the facts found by the jury, the judge found the men guilty and sentenced them to hang.
They were pardoned by Queen Victoria.
As said earlier, when Lon Fuller had put together his Speluncean Explorers hypothetical in the 1940s,
there really 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, who claimed that the trapped explorers were in a moral, if not geographical "state of nature."
It seems that Fuller included a natural law argument in the hypothetical was that the one of the
underlying real cases was US v. Holmes, where the defendant's attorneys unsuccessfully tried to argue
such a defense for Holmes. Positivism, the other theory, was all the rage in the 1940s. Positivism is a
"big umbrella" word, which covers all things from the utilitarianism of Jeremy Bentham to any effort
that wants to separate law from morality. Justice Keen is the exponent of positivism in the
hypothetical.
Through this allegory, Fuller is seeking consideration of the purposes for which law exists. The
varying nature of judgements of the Supreme Court are used to illustrate a variety of approaches to
law. The opinion of the Chief Justice seems to be based upon a belief in the significance of executive
clemency in appeals against conviction and sentence. Foster J (who accepts Fullers own views)
draws attention to the importance of the spirit of the law rather than the letter. Tatting J. evades
responsibility by declaring his inability to reach a decision. Keen J. follows the philosophy of
positivism in separating matters of law and morality. Handy J. advocates a decision which he believes
to be administratively convenient and popular.
Through the decision of Foster J., Fuller affirms his belief in the need for intertwining of law,
morality and reason in deciding legal questions. Each strand of the process is necessary. Positivism
provides a distorted view of law, which is seen as a one-way projection of authority the law is set
out and it is the duty of the citizen to obey its letter.
Fullers own postscript to the case is of particular significance. The case, he notes, was constructed
for the sole purpose of bringing into a common focus certain divergent philosophies of law and
government, philosophies which have existed since the time of the ancient Greeks. Even after we
have sought solutions to the problems raised in earlier times, the debates will continue. He ends with
saying that if there is any element of prediction in the case, it does not go beyond a suggestion that the
questions raised here are permanent questions before the human race. This statement, it is submitted
here is particularly true. Debates on judicial accountability, judicial activism, separation of powers,
role of media, retributive theory of punishment v. reformative theory of punishment are still constant
topics of debate and discussions even after 60 years of this allegory. And it seems unlikely that these
debates will be settled soon.
It is also pertinent to mention here that D'Amato's "Further Proceedings,[26] added
further proceedings. The author in his article imagines that the decision of the Court was
given over to a Committee of three professors for review. His article deals with the opinion
of these professors. It would not be wrong to mention here the reasons for the article as
mentioned by the author himself in its first paragraph
is a classic in jurisprudence. Set in the Supreme Court of Newgarth in the year 4300 the
case presents five judicial opinions which clash with each other and produce for the reader an
exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis
legislatures and executives. Though the issues articulated by Professor Fuller in 1949 are timeless,
the past thirty years in jurisprudential scholarship have produced at least one major new vantage
point- the "rights thesis" as advanced by Professor Dworkin and others. Simply stated, the rights
thesis holds that there is a "right" answer, and only one right answer, in every case. The litigants
have a "right" to that and finally-to add one more shade of meaning to the comprehensive term
"right"-the answer thus arrived at is dictated by general requirements of justice. Since justice is a
branch of morality, the "right" answer is not only correct but also right in a moral sense.