The Case of the Speluncean Explorers
"The Case of the Speluncean Explorers" is an article by legal philosopher Lon L. Fuller first published in the Harvard Law Review in 1949.
In the 50 years following the article's publication, a further 25 hypothetical judgments were written by various authors whose perspectives include natural law theory, consequentialism, plain meaning positivism or textualism, purposivism, historical contextualism, realism, pragmatism, critical legal studies, feminism, process theory and minimalism.
The survivors state that Whetmore had first proposed cannibalism and choosing the victim through random chance, offering a pair of dice in his possession.
Before the dice were cast, however, Whetmore declared his withdrawal from the arrangement, preferring to wait another week "before embracing an expedient so frightful and odious".
Both the trial judge and members of the jury petition the Chief Executive to commute the sentence of the surviving spelunkers from the death penalty to six months' imprisonment.
He draws analogies to servants who need to "read between the lines" of their masters' instructions: strict literal compliance may not always be the actual intention.
"[11] In the third opinion, Justice Tatting is emotionally "torn between sympathy for [the defendants] and a feeling of abhorrence and disgust at the monstrous act they committed".
[13] He distinguishes the self-defence exception that was created by past judges on the basis that it is not a "willful" killing, so it does not contradict the wording of the statute.
"[17] Concluding with a criticism of the prosecutor for deciding to bring the prosecution in the first place, the judge makes the "unprecedented" decision of withdrawing from the case.
[17] The fourth opinion begins by excluding executive clemency and the morality of the defendants' actions as relevant factors to the court's deliberations.
[18] While he shares their preference that the defendants be spared from death, he respects the obligations of his office to put his "personal predilections" of what constitutes justice out of mind when interpreting and applying the law.
[21] Justice Keen recalls that earlier instances of judicial activism in Newgarth had ultimately led to civil war, which established the supremacy of the legislature over the judiciary.
[21] He concludes by criticizing the courts' creation of the self-defense excuse, stating that waiting for the legislature to enact such revisions would have led to a stronger legal system.
[19] In contrast to the other judges, Justice Handy prefers to use a "pragmatic, common-sense approach", rather than abstract legal theories, to resolve the case.
[22] He criticizes his colleagues' "obscuring curtain of legalisms" when the case simply requires the application of "practical wisdom" of "human realities".
[19] He emphasizes the need for the courts to maintain public confidence, which requires them to follow the 90% majority in favour of applying a token punishment or releasing the defendants altogether.
The judges voting to uphold the convictions simply differ from Justices Foster and Handy on whose role it is to spare the defendants from the death penalty.
