THE CASE OF THE SPELUNCEAN EXPLORERS

By: Lon Fuller

A Position Paper

Presented to the

Department of Law

School of Law and Governance

University of San Carlos

Cebu City, Philippines

In Partial Fulfillment

Of the Requirements for the course

LLB 134N: Philosophy of Law

By

ATTY. DARYL C. ABOCOT, Junior-Associate Counsel

ATTY. CHATCH CALDERON, Junior-Associate Counsel
ATTY. CHRISTIAN JEE LANZADERAS, Junior-Associate Counsel
ATTY. RAINIEL LLAUDERES, Senior-Associate Counsel
ATTY. MIA DIONE LU, Senior-Associate Counsel

JURIS DOCTOR – 1

August 2017

i
 CON FIRM

Table of Contents
Antecedent 3
Statement of Facts 3
Statement of Issues 4
Statement of Arguments 5
Summary of Arguments 5
Arguments:
Necessity 8
Beneficiality 12
Practicability 18
Conclusion and Prayer 22

2|Page
 CON FIRM

Antecedent
Four explorers, which are members of the Speluncean Society, were
all found guilty for the crime of murder of one Roger Whetmore in
the Court of General Instances, at the County of Stowfield, Common
Wealth. The said courts have actually sentenced the four
defendants to death by hanging.
During the jury trial, the jurors spoke with the state’s Chief
Executive and requested that the penalty be lowered by a degree
from a death sentence to an imprisonment for a period of six
months. Similar action was taken by the Trial Judge. Defendants,
herein, then brought a petition of error to this Supreme Court.
Hence, the case at bar.
Statement of Facts
The four defendants are cave explorers who belong to an
organization called Speluncean Society. While exploring a certain
cave, a landslide occurred causing heavy boulders to fall and
completely block the only known entrance to the cave. The four
defendants together with Roger Whetmore were then trapped and
decided to stay near the obstructed entrance to await rescue. A
rescue party was later dispatched in hopes of rescuing the trapped
explorers. Fresh landslides occurred repeatedly which frustrated
the work of removing the obstruction. Despite such difficulty great
finances and labor was expensed in order to save them, to which
even resulted in the death of ten workmen.
On the twentieth day of their imprisonment, the explorers were able
to establish communication with the rescuers through a wireless
device. The explorers were told that it would take at the very least
ten more days before they could be released from their
imprisonment. It was known that the explorers had only taken
scant provisions with them and that no other food source was
available. And upon hearing the explorers describe their physical
conditions, a committee of medical experts said that there was little
possibility of survival for that period due to starvation.
Whetmore had proposed a solution where they were to cast lots in
order to choose who would be sacrificed to be eaten so that they
may find the necessary nutriments for their survival. The
defendants were reluctant at first. But after hearing the situation

3|Page
 CON FIRM

they were in described above and after the confirmation by the

committee of medics that such means of nutriments would sustain
them they then sought advice to do so from the medics or any
judge, government official, or priest but to which none was willing
to advise. And so, the defendants eventually agreed to Whetmores’
plan.
Three days later, before they rolled the dice, Whetmore withdrew
from the arrangement, wanting to wait seven days longer before
engaging in the arrangement. The defendants charged Whetmore
with breach of faith and proceeded to cast the dice. They asked if
Whetmore had any objections to the fairness of the throw to which
he stated that he had none. The throw went against him, and he
was then put to death and eaten by the four defendants.

Statement of Issues
MAIN ISSUE:
Whether or not, the Supreme Court rightfully convicted the
four defendants for murder.
A. NECESSITY
Whether or Not, it is necessary to convict the
defendants for killing and eating their companion,
Whetmore.
B. BENEFICIALITY
Whether or Not, the acquittal of the defendants will be
beneficial to the society.
C. PRACTICABILITY
Whether or Not, the conviction is practicable despite the
extraordinary facts presented in the case.

4|Page
 CON FIRM

Statement of Arguments
I.

It is not necessary to convict the 4 Speluncean Explorers for

murder.

II.

It is Beneficial that the 4 Speluncean Explorers shall not be

held liable for the crime of murder.

III.

It is Practicable that the 4 Speluncean Explorers shall be

acquitted for the crime of murder under the unusual and
extreme circumstance.

Summary of Arguments
I.
In order for it to be feasible to permit the Speluncean explorers to
be acquitted, which would therefore setting up a precedent for
future similar cases, standards must be established in the law to
prevent risk of people abusing such precedent. Besides the
requisites stated in the justifying circumstances, such future cases,
in order to distinguish their uniqueness and extremeness, should
be subject to the state of nature and not of civil society. State of
nature is to put simply where the law of nature, i.e. survival above
all prevails and ought to prevail as well for the sake of justice. This
state can be evidenced by the impossibility of existence between
man and the lack of positive laws jurisdiction over the case.
It is necessary for us to break the status quo in order to deliver
rightful justice and equity, as to the case of the Speluncean
explorers. The practice of blindly following what is stated in the law
is not beneficial to many people, especially if they are driven in
circumstances that they are not given any other choice. In the case
of the Speluncean explorers, the fact that they were completely
trapped without any provisions and options, they were forced to

5|Page
 CON FIRM

make an agreement to ensure that they survive. This is a valid

agreement because it was agreed upon by all parties, although at
the last moment, Whetmore backed out but did not disagree when
the dice was rolled. The agreement, although some would say
immoral was the only thing that they know that could save the lives
of the majority.
The threat that a defense of necessity would make people magnify
their perceived threats and to overreact, did not pass. If we
sentence these four for conviction which would lead to the sentence
of the death is a great cruelty and mockery to the sacrifice made by
Whetmore. Thus, the judgment of conviction should be dropped in
favor of justice for the Speluncean explorers.
II.
It is beneficial that the surviving Speluncean Explorers should be
acquitted as they only pursued the best option that would provide
them the best chances of staying alive--sacrificing one person, and
in the process, outweighing the intrinsic value of one life to save
more lives. They should likewise not be killed in order to achieve
justice for the 10 workmen that were expended throughout the
rescue operations as the sacrifice of 10 lives were a manifestation of
humanism at work--our inherent will to be of aid to those who seek
help. Also, The Dura Lex Sed Lex Principle cannot be applied in this
case because it is absurd. Equity follows the law, meaning the
judges should take into consideration the circumstances that have
transpired in the case as well as the chain of events this is that
could have another point of view wether they should really apply
the law to the explorers or not this is to avoid the compromise of
applying equity and justice. This is the reason why the legislature
should create a law for this certain kind of cases as to avoid
another speluncean explorer case where they would also put
requisites and procedures as to avoid the abusing for the law which
would be created for this.
III.
The law practiced by the Commonwealth of Newgarth is civil law
which has provisions providing for justifying circumstances which
justify the Speluncean explorers’ actions and therefore permits their
acquittal. These people do not incur any criminal liability for their
acts are recognized as justified. Such people are not criminals, as
there is no crime committed. The Commonwealth of Newgarth

6|Page
 CON FIRM

specifically provides for three requisites in order to avail of such

justifying circumstance, these being: First, the evil sought to be
avoided must be actual or imminent; second, the means deployed
must be necessary; and lastly, that said means are the very least
that will avert the evil. All of which are present in the case of the
Speluncean explorers which should therefore lead to their acquittal.
There is a practicability of a proposition when its feasibility includes
clamor for it. We can see such clamor through the conscience of the
community evidenced by first, actions of the legislature or judiciary;
and second, the clamor of the people. Conscience of the community
should decide whether the deliberate killing of a human being in
this circumstance be criminal or not because otherwise there is a
danger on the likelihood that if the issue is left to the Chief
Executive on his whim he may refuse to pardon these men or
commute their sentence which would likewise convict the law itself
in the tribunal of common sense. We would be asserting that we
uphold a law that compels us to a conclusion that we are ashamed
of, a law of injustice and absurdity.

7|Page
 CON FIRM

Arguments
I. NECESSITY
A. Standards can be established to prevent the precedent of
state of necessity from being abused
1. The explorers are not criminally liable for they were under a
State of Nature
State of nature is to put simply where the law of nature, i.e. survival
above all prevails and ought to prevail as well for the sake of justice.
i. There was no longer a possibility for coexistence between the
explorers
State of civil society v. state of nature: All laws that exist in society
are based upon the assumption that man’s coexistence is possible
in the first place, that a society can function as a collective
comprising of individuals that can live and function in a state of
civil society. However when this very co-existence comes in
scrutiny, like in this case where co-existence would have implied a
sure death of all explorers, the law cannot possible apply, for it is
the state of nature.
Even in this situation, the cave explorers were literally cut off from
the world and were out on their own, without any hope of surviving
unless they did the needful. Even maritime laws allow for complete
acquittal of crewmen aboard a ship, in case they commit murder of
one of their own if that one person becomes mentally unstable and
consequently a danger to the lives of the remaining crewmen.
Positive laws versus natural laws: We cannot turn a blind eye to the
purpose for which all laws exist. Clearly the aim of this statute
couldn’t have been to pass a blanket judgement even if it came at
the cost of delivering injustice. Positive or man-made laws are only
a subset of natural laws, laws that play a larger role in situations
such as this, for the purpose of these laws is safeguarding the lives
and interests of people, but if their existence or non-existence plays
no part in fulfilling that purpose, then the natural law, self-
preservation, is the only course of action to take. It seems highly
unfair that these people be dragged and judged under this statute,
given their only folly was to ensure they somehow survive. Cessante
ratione legis cessat ipsa lex- when the reason for the law ceases, the
law itself ceases. An example of this is martial law declared at a

8|Page
 CON FIRM

time of crisis ceasing to apply when such crisis ends. The same
should apply to positive law ceasing when its reason ceases to exist.
ii. The explorers were no longer within the jurisdiction of the
Newgarth law
The state ceases to hold jurisdiction over this situation by virtue of
its failure to uphold the social contract within the context. Given
that inside the cave, the five men had access to no state machinery
or mechanism that would enable them to access their rights or any
form of justice, they are thereby suspended in a state of nature
whereby the sole vehicle of justice is natural law which is discussed
and explained above. This can be interpreted either as the state
devolving the duty and right to fend for oneself in a situation where
the state is incapable of fulfilling its role as in the case of self-
defense or as a situation where the existence of the state has
become a redundancy within the context, thereby necessitating its
replacement by another mechanism to fulfill the purposes of
ensuring the individuals’ survival.
B. If the law would lead to injustice, it should not be followed:
1. Clamor of the People
2. People believe that justice system is at work, convicting
them would lead others to think that the justice system is
not working
3. They just acted for survival
If we allow the status quo to continue, we are allowing injustice to
permeate.
The law is created to maintain order and justice in the community.
It is enforced strictly but at the same time fairly. It is the mandate
of the courts to ensure that justice be upheld and everyone enjoys
equal protection. Thus, it is necessary for a law to be followed by
citizens. However, the question with regards to how it should be
applied is still a subject of debate. Whether we apply the law equally
to everyone or it should be applied depending on its circumstances.
Most of the people would say that it is required that we follow the
law according to its letter. It is expressed in the legal maxim Dura
Lex Sed Lex that however hard it is, that is still the law. We concede
that indeed it is important to follow the said maxim since it
maintains stability and lessens confusion. However, what is the

9|Page
 CON FIRM

importance of stability and constancy if it only allows injustice to

continue.
The principle of Dura Lex Sed Lex although highly regarded in this
occupation poses a threat and pervades injustice to people faced in
an unusual circumstance. Despite the inapplicability of the case,
the law compels us to follow it despite bringing injustice to the
subjects. We become blinded and forced to follow laws which would
clearly lack moral understanding and compassion to others.
Thus, it is necessary for us to break the status quo in order to
deliver rightful justice and equity, as to the case of the Speluncean
explorers. The practice of blindly following what is stated in the law
is not beneficial to many people, especially if they are driven in
circumstances that they are not given any other choice. In the case
of the Speluncean explorers, the fact that they were completely
trapped without any provisions and options, they were forced to
make an agreement to ensure that they survive. This is a valid
agreement because it was agreed upon by all parties, although at
the last moment, Whetmore backed out but did not disagree when
the dice was rolled. The agreement, although some would say
immoral was the only thing that they know that could save the lives
of the majority.
There is however a fear that people might use the defense of lesser
evil as a license to commit an evil act, the necessity however must
be powerful and imminent- which should follow the self-defense
model. However, the prosecutor failed to argue that the explorers
should have looked for another exit in the caverns, and the medical
experts informed them that if they did not eat, chance of survival
will become thin.
The threat that a defense of necessity would make people magnify
their perceived threats and to overreact, did not pass. If we
sentence these four for conviction which would lead to the sentence
of the death is a great cruelty and mockery to the sacrifice made by
Whetmore. Thus, the judgment of conviction should be dropped in
favor of justice for the Speluncean explorers.
C. If the law would lead to absurdity, it should not be followed
1. Why save them if we would convict and kill them in the end.
Following this school of thought, we see that convicting these
explorers and sentencing them to death is absurd. The explorers

10 | P a g e
 CON FIRM

did not willfully kill Whetmore, rather it was an agreement of all

parties due to their goal of survival. Aside from being an agreement,
they did not get in the cave with the intention to kill and eat their
comrade, rather it was just a consequence and a matter of choice
of all parties in response to their goal of survival. Lastly, why would
we convict and even kill people that the citizens vowed to rescue
and even risked their lives in order to get these explorers out of the
cave alive.
Moreover, when the legislature drafted law on murder, they could
not have predicted that there will come a point when people are left
to decide within themselves to sacrifice a life in order for the
majority of the populace in their case to survive. It is not privy or
even anticipated by our legislators that cases like these won’t only
happen in movies and can actually happen in real life.
The explorers are mere victims of the circumstance that they were
forcefully put into when they were trapped in the cave. The tragic
case of these explorers gives us an example of how the law should
be mellowed to accommodate circumstances which are unusual.
When we convict these poor men despite of their lack of free will, it
becomes unjust and in essence, we are all the more killing innocent
people whose only sin is their drive to survive. Convicting these
poor men prejudices these people even if they do not even have
control of the situation that they are put into.
Others may argue that it is necessary to follow the letter of the law
because it is what the law provides. However, according to Justice
Foster, “a man may break the letter of the law without breaking the
law itself”, he argues that every proposition should be interpreted
reasonably in the light of evident purpose. This argument is in fact
legal in our justice system in case of killing other people. If we are
so adamant in telling that killing is wrong, then how can we explain
death in response to people acting in self-defense?
With this illustration, we can observe that even our justice system
is willing to bend its law just to accommodate certain circumstance
as long as its intent is legal. Self-defense is in fact legal because
their act is only fueled by their desire of self-preservation, if that is
the case what is its difference in the case of these Speluncean
explorers? These explorers acted in order to preserve their lives. If
we are saying that it is legal for these people to kill in self-defense to
preserve their life, then we can also say that it is not illegal for these
explorers to consume a person to preserve their life.

11 | P a g e
 CON FIRM

The law most of the times need to be read between the lines. It is
but proper for us to understanding the meaning of the law and not
only sticks to its literal text. As provided in the illustration of the
stupidest housemaid, you cannot peel the soup and skim the
potatoes. It is up to us to interpret to rectify the mistake of the
statute to make it effective.
We trust that the Courts do have the intellectual capacity to read
between the lines and to discern that this case by far is an example
of a case that should be given special consideration. It is of utmost
importance that the court does not convict innocent people or else
the Court is deemed ineffective.
Our laws currently are crafted by our legislators. It is presumed
that when our officials passed laws, they did it in a good intention.
The problem is, extreme cases like the case at bar could not have
been predicted by our lawmakers. If we follow the status quo that is
solely based on certain circumstances which may normally happen
in a day to day basis, justice have already been tilted against people
who are exposed on cases that are extreme.
We do not say that we should disobey the law but it is our duty to
see to it that laws do not lead to absurdity. Therefore, it is right that
in following the law, we have to analyze it as a whole. We must look
at the intention of the lawmakers in creating a certain legislative act
and ascertaining whether or not it is applicable to the cases we are
handling. In the case of (cite case of selling of land and fence) the
requirement on written notice is deemed absurd for it is already
obvious that there was already intent of permanent residence.
Therefore, it is not only common sense but it is legal for us not to
follow what is written in statute if it doesn’t make any sense or if it
is generally absurd.
II. BENEFICIALITY
A. The acquittal of the 4 explorers will affirm the trust accorded
by the public to the Justice System.
90% of the citizens are in favor of the acquittal of the four explorers.
Certainly one can say that the people comprising the 90% come
from different social classes--and to recognize that they are united
in agreeing that it would be just not to have the explorers convicted
speaks volumes of how justice should best be served in the
situation at bar. By acquitting the 4 explorers, the Court is not
destabilizing the justice system. Accepting what is deemed to be

12 | P a g e
 CON FIRM

appropriate by the public, in effect, would only affirm the trust they
accord to the justice system.
B. The acquittal of the 4 explorers will help protect future
explorers and other citizens who may encounter the same
cruel, unfortunate circumstances.
It is the duty of the legislature to craft penal laws that intend to
prevent evils under normal circumstances. The case at bar is so
extraordinary that it was not at all foreseen by legislature from
happening, hence the absence of a law penalizing cannibalism.
Likewise, it would be absurd to conclude that this case would be
the last of its kind. By acquitting the 4 explorers, we are
capacitating the Supreme Court to come up with jurisprudential
guidelines that are strictly applicable only in critical cases which
involve similar conditions as that of what was experienced by the
Speluncean Explorers. This would protect future explorers and
other citizens of Newgarth exposed to the same unfortunate and
cruel circumstances.
C. The acquittal of the 4 explorers will expand the breadth of
the Newgarth Justice System and fill in the gaps missed by
the legislature.
The acquittal would also expand the breadth of Newgarth's justice
system to cover the gaps which may have been missed by the
legislature in crafting the law being used as the basis of their
conviction.
The legislature should create a law for this certain kind of cases
because clearly the explorers were not at fault for their own actions.
They only acted out for the survival and we human beings have
been hard wired to survive, which means do whatever available
means necessary to survive, in this case, cannibalism was the last
resort for the explorers in order to survive.
The legislature should setup standards or requisites for this kind of
case as to avoid the abusing of the law. They should also setup
procedures on how to avail this kind of law so that we really can
avoid this kind of cases in the future so that we will not have to
resort to other kind of means in arriving a decision or judgement.

13 | P a g e
 CON FIRM

D. Supporting Arguments on:

i. Intrinsic Value of Life

ii. Absolute Value of Human Life Outweighed by Principle of
Humanism

1. Intrinsic Value of Life

We concede to the fact that human life is precious; that human life
is an absolute value not to be sacrificed under any circumstances.
However, human practice proves otherwise as manifested in
situations where options that provide the best approach to achieve
benefits while preserving more savings outweigh the intrinsic value
of life.
A common example would be the creation of roads, high-rise
buildings or deep tunnels where several workmen would die
throughout its construction. While it is not necessary to kill men in
accomplishing the aforementioned infrastructures, it is given that
throughout the course of operations, there lays an imminent
possibility that a small number of lives would be sacrificed, usually
due to freak accidents or natural phenomena, but this sacrifice is
guaranteed to benefit, let’s say, one million people. We deliberately
assume that the benefits obtained for those who get to use the
infrastructure outweigh the loss of several lives.
In the case at hand, we have 5 Speluncean Explorers who were
unfortunately trapped in a limestone cave under the harshest
conditions imaginable, with the possibility of their survival being
slim, almost close to none. Upon establishing contact with medical
representatives, the imprisoned men described their condition and
the rations they had taken with them, and asked for a medical
opinion whether they would be likely to live without food for ten
days longer.
Among the negative replies indicating that they are not going to last
long without food, they received information that the nutriments
that may be derived from one human body would be able to sustain
the lives of four men for several more days until they may then be
possibly rescued. This made the men comes up with a strategy that
would grant every trapped person an equal chance to either eat or
be eaten. It was at that point where they had to decide between
sacrificing one life for the lives of four men or face death through
starvation altogether, and ultimately they were led to the decision of

14 | P a g e
 CON FIRM

sacrificing and consuming Whetmore. The desperate conditions

they were exposed to necessitated the need to look for means to
extend their lives, and consuming the flesh of one person at that
very instance was necessary to allow the four men to survive and be
rescued.
2. Absolute Value of Human Life Outweighed by Principle of
Humanism
What really triggered the Speluncean Explorers to employ
unconventional means to survive was the fact that they were not
anticipating to be trapped in a cave throughout their expedition.
From the outside, a search party was convened in order to rescue
the imprisoned men. It is to be noted that landslides occurred in
the process of rescuing the trapped Speluncean Explorers from the
limestone cave, and this led to tougher operations on part of the
men and machines deployed by the government to supplement the
original search party. Apart from exhausting the treasury of the
Speluncean Society and a large sum amounting to eight hundred
thousand frelars, 10 workmen died in a landslide while they were
engaged in the process of removing the rocks from the opening of
the cave. 10 workmen for the lives of the four men trapped in the
cave. Certainly, the number of lives that were sacrificed was larger
than that of the lives that were rescued, but it is in this instance
where the Principle of Humanism comes into play.
Humanism is a philosophical and ethical stance that emphasizes
the agency and value of human beings. It is rooted on our desire to
naturally aid those who are in need. In other words, helping each
other is innate in our human nature. If we cease to do that, we
cease to do what makes us good as a human being. To illustrate
how it works, suppose there was one girl trapped in a burning high-
rise building, and her only means of staying away from the fire is to
stand precariously by a windowsill so as not to suffocate from the
smoke, but at the same time she places herself on the verge of
possibly falling to the ground. The fire department would then
deploy 10 firemen in the attempt to rescue the hapless girl. The ten
firemen, while trained to be able to work in critical conditions, are
still exposed to the same dangers as that of the girl they intend to
rescue. Regardless of that fact, they still perform what they are
deemed to do because apart being their mandate; they are primarily
in a better position to actually be of aid. In this situation, it can be
said that saving the life of the girl is worth the risk as opposed to

15 | P a g e
 CON FIRM

not risking anything and leaving the girl to die either by flames or
falling.
In the case at hand, the workmen were fully aware that by engaging
in the treacherous recovery operations, they expose themselves to
the danger of also losing their lives in the process. The government
still sought to rescue the Spelunceans despite being aware of the
glaring risks to the lives of the men they employed to rescue them,
simply because it is the role of the government to maintain a social
contract with every member of the state; the government had a
responsibility to perform acts deemed necessary to preserve the
lives of the trapped men. Unfortunately through the process, 10
lives were expended for 5 imprisoned prisoners. This sacrifice,
however, could be properly justified--it all occurred in the process of
rescuing the hapless, trapped men. Now we arrive to the question: If
it was proper that these ten lives should be sacrificed to save the
lives of five imprisoned explorers, why then are we told it was wrong
for these explorers to carry out the best arrangement which would
save four lives at the cost of one?
The Speluncean explorers did not foresee the possibility that they
would not end up getting trapped in a limestone cave, nor were they
prepared to deal with that possible circumstance and be able to
survive until they could be rescued. They were exposed to an
unfortunate set of events that led them to come up with decisions
that do not fall short of being inherently gruesome, but these
decisions were still substantial in the sense that they were executed
on the grounds that it was necessary for them to do, otherwise
they'd automatically have no choice but to die altogether due to
extreme starvation.
The sacrifice that was carried out was based on the fact that one life
could be efficiently expended for the benefit of more explorers. They
all had equal chances of getting eaten or being lucky enough to be
the one dining on a fellow explorer's flesh. Gruesome, yes, but it
was necessary. It is evident that the intrinsic value of Whetmore's
life was outweighed by the benefit that would be received by the
surviving explorers. Had conditions been more favorable to the
explorers, the principle of humanism would definitely persist.
We concede that it is beneficial to follow the maxim, Dura Lex Sed
Lex which means the “The law is hard but it is the law”. This
maxim empowers the judges to apply the law as what it is stated in

16 | P a g e
 CON FIRM

the Code. However, why should we be a slave to this maxim

especially when we apply this to unusual and rare cases?
The Dura Lex Sed Lex principle which is highly regarded in this
case, sadly creates a question if the legal maxim could be
beneficially applied in this case, however, it is not. There is
absurdity if you apply this maxim in this case because the case at
hand is not something that we encounter in our day to day life, this
could be considered a rare case where the law is being questioned if
it should be applied in this certain case.
This principle is only beneficial for the law to be stable and
therefore the lawyers and judges will know how to apply and
interpret the law. This also leaves little room for wrong
interpretation for judicial legislation. But what is the point of
keeping a stable and constant law when it is unjust. We should
apply equity in this case because the principle or legal maxim
cannot be applicable in this certain case and that equity is much
more suitable in this scenario.
For example, as stated in the case where they were trapped inside
of a cave because the only entrance and exist was blocked by a
curtain of rock when a landslide occurred.
They resorted to cannibalism in order to survive inside the cave
while they are being rescued so they killed Whetmore through a
selection process where they would lot a dice. In this case, Dura Lex
Sed Lex should not be applied because this is a very unusual and
rare case. The judges should take into consideration the
circumstances and the chain of events in the case to create a full
view of how to respond to this case without compromising equity
and justice.
The law may be hard to observe or difficult to obey, this is a part of
the Dura Lex Sed Lex Principle which however, doesn’t mean that
we should abide to it especially in cases where the law is really
absurd to the point that we should not follow what is written but we
should consider the spirit of the law.
In the Speluncean Explorers’ case, the explorers were in a state of
nature and wherein the most primal instinct of man is self-
preservation. We cannot argue that we should follow what is written
in the law because we need equity in enacting the law and imposing
judgement to the convicts.

17 | P a g e
 CON FIRM

The law equally applies to all; this is part of the Dura Lex Sed Lex
Principle which however, should be overlooked because this is a
peculiar case that needs a different point of view because this
becomes a bad joke – such as in the following cases: When jails are
full of poor and helpless people; When the so called “Rich and
Famous” are above the law; When someone is altogether immune
from any prosecution for any gross misdeed, any gigantic graft, any
colossal corruption even by making them one big combined or huge
composite villainy – precisely brought to fulfillment by that someone
with all the power and influence to do what is right and just, but
does exactly the abominable and censurable. It is where, in this
case, which was cited where clearly contradicting the statement
“The law equally applies to all”.
It is beneficial for us not follow the Dura Lex Sed Lex Principle
because this is to avoid another similar case to that of the
Speluncean Explorers wherein they should be protected from being
criminally liable if the same outcome would happen. This means
that the law should be constantly evolving – adapting new scenarios
and new jurisprudence in order to avoid comprising in interpreting
or constructing the law.
III. PRACTICABILITY
A. The civil law, practiced by the Commonwealth of Newgarth,
contains provisions that permit the acquittal of the
defendants

1. The defendant’s case can fall within the justifying

circumstance of when there is a state of necessity.

“The agent who kills a would-be assassin of the Chief Executive is

justified, though the killing be willful; so too with the person who
kills to save his own life. Only the latter is self-defense; the case of
the agent shows that self-defense is just one member of a larger set
of justifications.”
For thousands of years, and in many jurisdictions, criminal
statutes have been understood to operate only when the acts were
unjustified. In order for necessity to become a justifying
circumstance the following requisites, as stated by Justice
Easterbook, must be present:
First, the evil sought to be avoided must be actual or imminent;

18 | P a g e
 CON FIRM

Second, the means deployed must be necessary; and

Lastly, that said means are the very least that will avert the evil
i. To prevent a lesser-evil defense from becoming a license to
perpetrate evil, the necessity must be powerful and imminent.
And so, addressing the first requirement, in respect to the case of
the Speluncean explorers, on whether or not the evil of death by
starvation was actual or imminent can be proven by the rescuers
outside the cave confirming that all were likely to starve by the time
help came. For the jury found that a committee of medical experts
had informed the men trapped in the cave that if they did not eat,
then there was "little possibility" of their survival until day thirty.
On the facts the jury found, all five very likely would have died had
they passively awaited rescue.
We concede that allowing a defense of necessity creates a risk that
people may act precipitately, before the necessity is genuine (actual
or imminent). Wherefore if the law allows a starving mountaineer to
break into a remote cabin as a last resort to obtain food - necessity
is a defense to a charge of theft - it creates a risk that wanderers
will break doors whenever they become hungry, even though
starvation is far in the future. The parallel risk is that a hungry and
poor person surrounded by food may decide to bypass the market
and help himself to sustenance.
But despite such a risk we still see that the ground for self-defense
still functions until today even though it bares the same risk of
abuse as defense of necessity has. It continues to function because
the requirements of self-defense are kept in place to assure that
only the truly innocent are acquitted. This strict abidance to those
requirements by the courts serves as deterrence to people to refrain
from arbitrarily abusing such defense thus removing the risk that
people may act precipitately, before the necessity is genuine.
ii. All lawful or less hazardous options must first be exhausted.
A prisoner must report his fears to the warden before escaping;
and if the warden does nothing, the prisoner must escape rather
than harm the guard.
The difference between the mountaineer case, in which breaking
into a cabin is permitted, and Commonwealth v. Vaijean, which
held that a poor person may not steal a loaf of bread from a grocer,
is that the poor person could negotiate with the grocer, or get a job,

19 | P a g e
 CON FIRM

or seek public or private charity. A mountaineer who lacks other

options to find food, and cannot negotiate with the cabin's (missing)
owner, may break into the cabin because that is the last resource;
theft is a lesser evil than death, though not a lesser evil than
working. Negotiation, actual or potential, offers a good framework
with which to assess defenses based on utility.
Applying this rationale to the Speluncean explorer’s case it is clear
that no they had exhausted all other options through consuming
the limited rations they had brought with them and waiting till the
twenty-third day of their imprisonment, a point where their physical
conditions were dire, before engaging in their arrangement. It is
clear too that there was no actual or potential negotiation available
to them that would’ve provided them any another option. Also the
prosecutor did not argue that the speluncean explorers should have
looked for another exit from the caverns.
iii. The means are the very least that will avert the evil.
The choice was stark: kill one deliberately to save four, or allow all
five to die. The death of one was a lesser evil than the death of five,
and it was therefore the path that the law of justification
encouraged.
Military commanders throughout time have understood this
equation and have sent squads and platoons on missions from
which they were not expected to return, so that a greater number
might be saved.
B. Conscience of the community decides whether the
deliberate killing of a human being in this circumstance be
criminal or not
1. Apply common sense or the conscience of the community to
problems of law and government. This is evidenced by:
First, actions of the legislature or judiciary; and
Second, the clamor of the people
i. In regards to the actions of the legislature and judiciary, it is
assumed that since the legislature did not pass a law particularly
making cannibalism unlawful they were allowing the courts to set
precedents to make such act in a state of necessity a justifying
circumstance. They could have easily passed a law to the contrary.
While in the judiciary the justices threatened the Chief Executive
with excommunication if he failed to commute the sentence, while
20 | P a g e
 CON FIRM

another Justice lifts the weight of law from the shoulders of these
defendants and another Justice addressed a few remarks to the
Executive in his capacity as a private citizen.
ii. In regards to the clamor of the people, ninety per cent of the
people wanted the Supreme Court to let the men off entirely or with
a more or less nominal punishment while the ten percent had a
distorted version of the facts of the case. Some thought that
"Speluncean" means "cannibal" and that anthropophagy is a tenet
of the Society.
There was, not one of them who thought it was fine to have the
courts sentence these men to be hanged, and then to have another
branch of the government come along and pardon them. Yet this is
a solution that has been proposed by the Chief Justice as a way to
avoid doing an injustice and at the same time preserve respect for
law.
We apply the conscience of the community because there is a
danger on the likelihood that if the issue is left to the Chief
Executive on his whim he may refuse to pardon these men or
commute their sentence which will likewise convict the law itself in
the tribunal of common sense, for we would then be asserting that,
we uphold a law that compels us to a conclusion that we are
ashamed, a law of injustice and absurdity.
Even in the case where a religious sect, during a meeting, was
discussing the affairs of a minister who had gone over to the views
and practices of a rival sect, had beaten the minister when said
minister had attended the meeting and interrupted the speeches to
question the affairs of the church and defend his own views. The
minister brought a suit for damages. It was obvious that the
minister had to a large extent brought the thing on himself. He
knew how inflamed passions were about the affair, and could easily
have found another forum for the expression of his views. Despite
the complicatedness of the trial and the host of legal issues raised
the Justice decided that such perplexing issues really had nothing
to do with the case, and began examining it in the light of common
sense. The case at once gained a new perspective. The Justice then
directed a verdict for the defendants for lack of evidence.
The decision was widely approved by the press and public opinion,
neither of which could tolerate the views and practices that the
expelled minister was attempting to defend.

21 | P a g e
 CON FIRM

The world does not seem to change much, except that this time it is
not a question of a judgment for five or six hundred frelars (as was
the case with the minister), but of the life or death of four men who
have already suffered more torment and humiliation than most
would endure in a thousand years.
Conclusion and Prayer
As a conclusion, the defendants should be acquitted for the murder
of Roger Whetmore under extreme and unusual circumstance.
They acted; four lived. Putting these four survivors to death would
be a gratuitous cruelty and mock Whetmore's sacrifice. The
judgment of conviction must be reversed.
The above premises considered, respectfully pray to the Honorable
Court to acquit the 4 Speluncean Explorers, herein, the defendants,
for the murder of Roger Whetmore.

22 | P a g e
 CON FIRM

Bibliography
Fuller, L. L. (1949). "The Case of the Speluncean Explorers". Harvard Law Review, 62, 4,
616–645. The Harvard Law Review Association.
Lamoine, G. (1983). The Scales of Justice as Represented in Engravings, Emblems, Reliefs,
and Sculptures of Early Modern Europe" (Images et representations de la justice
du XV ie au XIX e siecle ed.). University of Toulose-Le Mirail.
Wacks, R. (2006). Philosophy of Law: a Very Short Introduction. Oxford University Pres.

http://ovc.blogspot.com/2010/06/dura-lex-sed-lex.html

23 | P a g e