The fictional case Speluncean Explorers v. Court of General Instances of the County of Stowfield (4300) is about five Speluncean explorers. The explorers were trapped in a cave after the entrance was blocked due to a landslide. After twenty days, these explorers sent distress messages to a rescue team. The explorers had no means to survive in the cave since they were running out of supplies. Their rations and conditions would not support them, a conclusion confirmed by the doctors outside the cave. Roger Whetmore, one of the explorers, spoke to the doctors and asked them if they thought the trapped men would survive by eating one of their own. The doctors reluctantly answered in the affirmative. Whetmore suggested throwing a dice to determine who would be eaten; he lost the dice throw and was ultimately eaten. On the thirty-second day, the survivors were rescued and then indicted for the murder of Whetmore. The four survivors were ultimately sentenced to death by the Supreme Court for the murder of Roger Whetmore (Fuller, 1949).
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Foster begins by asserting that something more significant than the fate of four men is on trial, namely, the law of our Commonwealth. He believes that the law must not conclude that the four explorers were murderers. The law must declare them to be innocent on the grounds of two independent arguments. The first of these is the inapplicable nature of the positive law of our Commonwealth with all its statutes and precedents. Foster argues that this case should be based on the law of nature, as posited by ancient writers in America and Europe. This implies that when a man is in a situation where he has no other means of survival, the practicality of positive law disappears. This applies exactly in this case where one life is forfeited to save the others’ lives; in such a case, the underlying basic premises of the entire legal jurisprudence must lose its force and meaning. The explorers were living in an isolated world not experienced by the outsiders. Thus, the law of nature is in force, allowing the Speluncean explorers to make and implement their own laws, exercising their jurisdiction in the confinement of the cave. Foster argues that Whetmore’s life was taken in a state of nature and not in a state of civil society. Therefore, with regard to the underlying principles, the four men were not guilty. What they did was in accordance with an agreement proposed by Whetmore himself and consented to by all. They were in an extraordinary predicament that left them with no choice but only with the natural principles that govern men’s relations (Fuller, 1949).
Foster’s second argument proceeds by seeming to override his entire explanation of the first premise. Foster (just for the purposes of argument) states that he may be wrong in arguing that the predicament facing the four explorers excluded them from the force of our positive law. Here, the assumption would be that the power of the Consolidated Statutes penetrated through the solid rock of the cave. These men had surely violated the statute that prohibits the willful taking of another person’s life. Consider, for purposes of comparison, the case of Commonwealth v. Staymore. In this case, the defendant had parked his vehicle in a two-hour parking zone, but a political skirmish occurred that prevented him from removing his vehicle within the two-hour limit. The court set aside the conviction of Staymore, even as his case fell totally within the statute. This implies that statutes need not always be taken literally. Another good example is the killing of a person or persons in self-defense. The statute fails to mention anything about this exception, yet courts have set murderers free based on this plea. The applicable statute here does not apply to self-defense cases. When a man’s life is threatened by another man, the threatened man naturally repels his aggressor. The same argument is easily applied to the Supreme Court case of the Speluncean Explorers. Foster argues that for a group of men, such as the Speluncean Explorers, who find themselves in a predicament, life-and-death decisions will not be based on the contents of our law. Therefore, Foster renders the statute on self-defense irrelevant to the case at hand. Foster further concludes that the defendants were innocent of the murder of Roger Whetmore and that the conviction should be set aside (Fuller, 1949).
The legal theory or jurisprudence that is considered in this case ranges over the separation of powers, as outlined in the notion of clemency (Shellens, 1959). There is also the theory of natural law, as explained by Justice Foster. Elements of positivism and the philosophical relationship between law and morality, together with the interpretation of statutes, are also present (Coleman & Leiter, 1999). In addition to these, other factors include the purpose(s) of statutes as well as the use of precedents. The case also shows the need to make judgments based on considerations of practicality and aspects of self-defense. Justice Foster would acquit the defendants. The Justice presents two profound reasons for acquittal: one is the application of the natural law theory; and two, the application and role of the statute. Justice Foster explains the theory of “ethical removal” (Smith, 1992) from society which the case presents and also his opinion that the court is toothless with regard to this case (Wilson, 1967). The court appears to lack the ability to deliver a judgment on the contract made in the context of “natural law.” Looking at the role of the statute, Foster focuses on the spirit of the law, rather than the textual law itself, and cites two cases that are relevant to his approach. The cases, however, do not seem to lend much support to his opinion.
An Analysis of Foster’s Judgment
Justice Foster was right in arguing that the Law of the Commonwealth is surely at stake. Thus, in order to analyze this case objectively, it is only appropriate that the textual argument be set aside so as to explore the aspect of prudence as a way of influencing the judge’s decisions (Province of Jurisprudence, 1832). In examining this case carefully, it is wise to look at Justice Tatting’s rebuttal of Justice Foster’s opinion.
Justice Tatting refutes the argument that the explorers were not in a “state of law” when they committed the murder. Justice Tatting’s rebuttal is flawed for several reasons. First, the “state of nature” is part of the natural law and does not partake of the positive law (Martin, 1975). It is the nature of man to try to survive if survival is at stake. While in the cave, the four explorers entered the natural law after realizing that survival was at stake; they knew that their survival was based on eating the flesh of one of their own. It is important to understand the “state of nature” of the explorers. Justice Foster wrote that “[a]… man whose life is threatened will repel his aggressor no matter what the law may say.” In an exercise of prudence, one may argue that when laws are made, enacted, and enforced by men, there is a reason for the creation of any law. However, inasmuch as a man breaks the textual law, he does not break the spirit of the law. Take the case of the Commonwealth v. Staymore; the defendant had broken the law by leaving his car parked for more than the required two hours, as the statute stated. But by carefully examining the real argument behind Staymore exceeding the parking limit of two hours, one stumbles on the fact that the defendant was prevented from removing his car from the parking lot due to the political demonstrations that had filled the streets. Applying the same reasoning in this case, the Speluncean explorers are not guilty of murder since the law is not applicable to the unusual circumstances, as seen in this particular situation.
However, in this case, one can easily refute the ruling based upon mere “judicial activism.” There is a need for common sense, which is lacking in the judgments delivered by Justices Keen and Truepenny. The occasion for the justices to hear the case and write their opinions is the crisis of survival faced by the entrapped men. If the case were about the death of five men due to starvation–a painful, and wretched death–then would it not be our wish that even four of the explorers could be rescued? It is better that the four men were able to survive a grueling ordeal, waiting in the cave for more than thirty days. Moreover, it is prudent to console them and let them carry on with their normal lives; they have already gone through enough trauma. If these men had not taken such an action-the taking of a man’s life-then the story today would be the tragic death of five men in a cave due to starvation. It is important to reflect on this issue: whether to have five human beings dead or one dead and four alive. The consensus here is that everyone has the right to live; the four explorers only did what was necessary to survive when death was seemingly inevitable.
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Justice Tatting brings in a different analogy. He posits that the idea of remaining silent by exercising prudence amounts to a display of inconsistency, since prudence is subject to reasoning (Douglas, 2006). Tatting asserts that by using logic, consistency can be maintained if a man is found guilty of theft for stealing bread to avoid starvation. This analogy is strong and scholarly, but it presents a myriad of problems. First, the analogy in itself is not consistent with this case since the dynamics behind a free man, with a number of available resources and placed outside in the world, is fundamentally different from that of men who are trapped and have no options. The man who robbed the convenience store for bread could have applied for food stamps or gone to a church for food. Such a man did not have to resort to stealing; at least, it was not his last option.
Reasoning with prudence, as used when breaking the law, happens when one has expounded all other options exhaustively and found no other way, so as to allow the robbing of a convenience store for bread. For a ‘real’ thief, one can safely make an assumption that, in Tatting’s analogy, the man caught stealing had not exhausted all the possible means available; therefore stealing was wrong. The defendants in this particular case had fully exhausted every possible means, and were in such urgent need of food, that they resorted to eating one of their own for mere survival. The act of eating one of their friends was a measure of desperation, since the four men had no record of cannibalism (O’Shea, 2010).
Another important argument is that of Justice Keen. Keen argues on the question of the role of self-defense in the explorers’ decision-making process. Justice Keen argues that since Whetmore had not threatened the lives of the four defendants, it is wrong to assert that they were acting in self-defense. However, tone may readily disagree with Justice Keen on this issue on the basis of Justice Foster’s argument. Whenever people conform to a law, they do so for a certain purpose. If one kills for self-defense, it is not murder. If it were murder, then the law could not be fully operational as a disincentive, since it is only human nature that a person will choose life over death (Burlamaqui, 2006). Thus, the killing of Whetmore was in self-defense because if not for his death, the four explorers would not have appeared in court. Moreover, if proved, the fact that Whetmore consented to his death makes the defendants not murderers, but more complicit in assisted suicide (Fuller, 1949).
Although the case of the Speluncean Explorers is tragic, the law should not fold its hands and allow murders to be committed on the basis of natural law while positive law remains sound asleep. Nevertheless, the defendants in this case are innocent of murder.
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