1.

Practicability
We agree with what Tatting, J. has said that the argument of Foster, J. is very
impractical because it will be difficult to determine if when the explorers made their own
set of positive laws. These uncertainties will lead to unstable law for our legal system. The
unstable legal system that it will produce will be very harmful in the long run because the
people may just contend that they has just started their own natural law based on their belief
that our positive law may be caught off-guard and will just accept the contention of people
easily without a proper examination idea before the act. This will not only apply to criminal
cases, but all positive laws in general. This will defeat the main purpose why we enacted
natural law—to achieve uniformity and cooperation in the society.
He gave a further illustration of the impracticability of the idea that the explorers
were able to make their own law while they were trapped inside the cave. For instance, he
stated, “[o]ne of these men had his 21st birthday while he was imprisoned within the
mountain. On what date would we have to consider that he had attained his majority when
he reached the age of 21 or our law or only when he was released from the cave and gain
subject to what my brother calls our positive law?” There will be a great confusion in
identifying which laws should be followed and when it should be followed. By just, laying
down a law that is beneficial to the defendants will surely lead to a problem. They cannot
just chose their own law. The general law should be followed by the general public because
it will be a practice of futility when every person may make their own laws. It should
undergo a certain process before it will become an official law. This process will make sure
that the law is acceptable to the general public and will suit to the needs of the general
public.
Now imagine by following the argument of Justice Foster, during a what we call a
peculiar situation, people can do anything that they want to do, and afterwards they will be
acquitted if they will make any offense against the positive law because their action was
only based “on the peculiar” situation and not applicable to the positive law in general.
This will surely create a great havoc and chaos in our society. Let us always remember that
the main purpose of our law is to provide harmony and uniformity in our society; or in case
of criminal law to deter crime to the general public. Now it will be hard if each person may
make their own law by arguing that their action is appropriate in the instance that they did
an offense.
Even if the defendants will say that for every law there is an exception, it should be
a clearly stated argument why the situation is compellable to be exempted. Now, we will
reiterate that they will argue that they have the “acted with law of nature” it should be
stated when it started and why it is not applicable to the positive law in general. Let us
always remember that there is an assumption that laws should be applied to all.
We want also to bank on with the argument of Tatting, J. that the contention of
Foster, J. that the “natural law” that the explorers did is applicable to the explorers who eat
Whetmore such as an agreement once made is irrevocable, and if one of the parties attempts
to withdraw, the others may take the law into their own hands among others. Tatting finds
it problematic because how about if Whetmore has the revolver and killed the defendants
who are trying to eat him. Certainly, he would plead that he was just defending his own
life from the defendants who are now facing the death penalty. This predicament will be a
problem concerning the internal morality of law--- it should be generally applied.
Furthermore, the argument of Foster that the defendants follow the law of nature
will be problematic because it does not possess and internal morality as Fuller has
philosophized. The law should be general, promulgated, should not be retroactive,
understandable, not contradictory, should require reasonable conduct, constant through
time, and administered. By banking on the contention of Tatting, J., the validity of the so
called “natural law” because it will not be applied on the hypothetical scenario that Tatting
presented (where Whetmore may not use the argument of self-defence). Thus, it will not
be practicable to follow the argument that their act are justified because it will really create
a great instability with our justice system We Should always see the long term effect of
this decision of the Supreme Court. We do not want that there will be a time that people
who killed their fellowmen will just contend that they did it by following their own “natural
law” on the “peculiar situation” that they believe was present on the time of the action.
We agree that if we will follow the argument of Foster, J. it will lead to absurdity
and injustice to the victim of the incident. We should always take into consideration that
“equity follows the law”. When there is a law that is applicable it should be applied first
before the court will result in finding their own justice.
Based on the interpretation of the law, Sunstein, J. stipulated that the law should be
followed if there is no ambiguity from its literal wordings. The N.C.S.A.(N.S.) 12-A states
that “whoever shall wilfully take the life of another shall be punished by death.” It should
be understood that the purpose and main spirit of the law is the law itself. Thus, it should
be applied so that there will be a predictability in our justice system. It is important that the
law should provide for predictability so that we can conduct our affairs with some certainty
(Lopez, 2013). North (as cited in Lopez) stated that this will provide a structure to everyday
life by defining and limiting the set of available choices. Thus, it is important that the
predictability of the court should be sustained so that there will be a stable legal system. If
the court will deviate from its own role in interpreting the law then there will be a big
problem in our justice system. The later arguments refute the contention of Handy, J. that
by acquitting the defendants can show that people can select from the available forms
whose most suited to reach the proper result. The efficiency and common sense that he
argues manifests problematic consequences in the long because we should admit that not
all positive laws are based on “common sense”. If the common sense will always prevail,
it can be abused as an excuse in all the offenses that people may make. For instance, in this
case, defendants may say that it is already a “common sense” that to survive they should
eat one of them which resulted to an evil. In fact, Tatting, J. hypothesize that had the
defendants know that eating their colleague is a crime, they might waited for a longer day
before they ate Whetmore. Moreover, the well-defined predictable justice system will
efficiency contrary to the argument of Handy, J. It is very harmful when people will be
unsure with their actions because the “common sense” of their fellowmen will be different
from their own. By analysing it through the lens of long-run consequence of this, we will
surely have no certainty and assurances in the actions that we will do. Thus, again, this will
defeat the purpose in enacting a general law—cooperation and uniformity in actions.
We want also to recognize the argument of Handy, J. that the 90% of the people are
expecting that the defendants will be acquitted. He gave a due weight to this stating that
this is a manifestation of human realities. We beg to disagree. We should remember for a
law to be applicable, it should first undergo a process. It should be generally accepted to
the people who are going to follow the law because they believe that the law has a
paramount importance in achieving the main objective of the society—development and
prosperity. Now, that law should be stable and one of the ways in achieving it is to follow
the law as long as it is not ambiguous.
Moreover, since the positive laws are enacted, if it has the presumption that it is
agreed upon by the people. Now, if really the 90% of the people really want to acquit the
defendants, it is not the task of the court of change it; what the court should do is to apply
the law when it is clear and has no ambiguity. The provision in the Commonwealth Law
has no ambiguity when it said that “[w]hoever shall wilfully take the life of another shall
be punished by death penalty”. There is no really ambiguity on this.
It is very impracticable it the court will be legislating law because it will deviate
them from the main purpose of the law; that is to apply the law when there is no ambiguity.
Yes, perhaps they can argue that judges and justices has also feelings and emotions that
may affect them in deciding cases, however, as much as possible they should avoid it from
intervening their decision because we are a state of law and not state of men.
In a nutshell the Philippine Jurisprudence can also be helpful in lighting the issue
in this case. It is state in the Case of Pascual V. Pascual-Bautista (G.R. 84240):
 “Verily, the interpretation of the law desired by the petitioner may be more
humane but it is also an elementary rule in statutory construction that when the
words and phrases of the statute are clear and unequivocal, their meaning must be
determined from the language employed and the statute must be taken to mean
exactly what it says. (Baranda v. Gustilo, 165 SCRA 758-759 [1988]). The courts
may not speculate as to the probable intent of the legislature apart from the words
(Aparri v. CA, 127 SCRA 233 [1984]). When the law is clear, it is not susceptible
of interpretation. It must be applied regardless of who may be affected, even if the
law may be harsh or onerous. (Nepomuceno, et al. v. RFC, 110 Phil. 42). And even
granting that exceptions may be conceded, the same as a general rule, should be
strictly but reasonably construed; they extend only so far as their language fairly
warrants, and all doubts should be resolved in favor of the general provisions rather
than the exception. Thus, where a general rule is established by statute, the court
will not curtail the former nor add to the latter by implication (Samson v. C.A. 145
SCRA 654 [1986]).”

This is the price that we should be because we decided to surrender our freedom to the
government who we believe will give to us the protection and development that we desire.
However, this does not mean that the explorers will be executed already without resorting to other
ways; but since they went to the Court of Justice, the function of the Court of justice will prevail.
They can still find for other solution that will not disrupt the stability of our justice system
as what we have stated earlier (e.g. legislating law that that exempt the crime of the explorers). It
is necessary that the Court will uphold its mandate so that there will a functional check and balance
system of government.