THE CASE OF THE SPELUNCEAN EXPLORERS:

1949 Vol. 62 Harvard Law Review Pg. 616, Lon L. Fuller

Facts:
•
• The four detendants are members o the Speluncean society, an organization of amateurs interested in the
exploration of caves
They, in the company of roger Whetmore, then also a member of the society, entered a limestone cavern
Whilst they were in the cave, there was a landslide and heavy boulders fell in such a manner as to block completely
the only known opening to the cave
o On the failure of Whetmore and the defendants to return home, a search party was dispatched to the spot
The task of rescue proved one of overwhelming difficulty. The work was frustrated by fresh landslides, one
of which killed 10 workmen
The explorers carried onlv moderate rations. and death b starvation became a real
concern.
o The explorers asked the rescuers via a portable wireless machine capable of both sending and receiving
messages how long it would take. They said it would be approximately 10 days.
The explorers then asked to speak to a committee of medical experts, then asking these experts how likely it
was they would survive without food for 10 days. The chairman of the committee told them there was little
possibility of this.
• 8hrs later, communication was re-established and Whetmore asked, on behalf of himself and the defendants,
whether they would be likely to survive for 10 days longer if they consumed the flesh of one of their own number. The
physicians' chairman reluctantly answered the question in the affirmative.
For the rest of the time the explorers were in the cave, there was no communication with the outside. It was learned
when the men were finally rescued that Whetmore had been killed and eaten by his companions.
It was Whetmore who first proposed the idea of eating one of the explorers. It was also Whetmore who first
suggested some method ot casting lots.
Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided
on reflection to wait another week before embracing an expedient so frightful and odious. The others charged him
with a breach of faith and
proceeded to cast the dice.
When it came Whetmore's turn, one of the defendants cast the dice for him. The throw went against him, and he was
then put to death and eaten by his companions
Case History:
• At trial, the foreman of the jury inquired of the court whether the jury might not find a special verdict, leaving it to the
court to say whether on the facts as found the defendants were guilty. The detense and prosecution agreed, and this
was the process adopted by the Court.

The jury found the facts as above, and found further that if on these facts the defendants were guilty of the crime
charged against them, then they found the defendants guilty.
• The trial judge then ruled that the defendants were guilty or murdering Roger
vvnetmore.
After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence
be commuted to an imprisonment of six months. The trial judge issued a similar communication to the Chief
Executive.
• As yet, no action with respect to these pleas has been taken, as the Chief Executive is awaiting the Appeal Court's
disposition of this petition of error.
_isSues.
Moral Issues:
1. Is what the defendants did immoral?
2. If no, what should a judge do when the law says one thing, and morality demands another?
Legal Issue:
1. Is necessity a defense to murder?
Appeal Judgments:
Truepenny C.J:
o Convicts the defendants, believing that " ..the jury and the trial judge followed a course that was not only fair
and wise, but the only course available to them under the law."
o The wording of the Statute is clear.
However, he says that he thinks the Chief Executive should issue a pardon.
"In a case like this, the principle of executive clemency seems admirably suited to mitigate the rigors of the
law."
 o "If this is done, then justice will be accomplished without impairing either the letter or spirit of our Statutes
and without offering any encouragement for the disregard of law.'
Foster J
Acquits the defendants
Believes conviction is untair: "It this Court declares that under our law these men have
committed a crime then our law itself is convicted in the tribunal of common sense."
• Bases his acquitta on z alternative reasons:
1. The defendants, at the time, were ruled by the 'law of nature, not the 'law of civil society'
Positive law is predicated on the possibility of men's coexistence in society.

Therefore. when a situation arises in which the coexistence ot men becomes

impossible, then a condition that underlies all of our precedents and statutes nas ceasea to exist.
o A case may be removed morally from the force of a legal order, as well as geographically
o Since the principles which would usually govern the men's behavior were inapplicable, it is permitted that
they draw up a new charter of government appropriate to themseives
O
This is particularly allowed given that, "the most basic principle of law or government is to be found in the notion of
contract or agreement.
It is not true that human life is an absolute value.
Notes:
This argument is linked to social contract theory
Thomas Hobbes argues that human nature is nasty, brutish and short', and that therefore anything would be better
that a state of
nature => mankind would agree to anv arrangement ot
governance socia contract
John Locke disagrees. and argues that there are certain limits on
what government can do - there are certain human rights which are inalienable
• The idea that human rights are inalienable has arisen onlv recentlv.
However, it has had its basis in natural law theory for centuries
Note: Bentham is a harsh critic of natural law theorv.
2. A purposive reading of the Statute does not allow for the conviction of the defendant ..a man may break the letter
of the law without breaking the law itself.
Every proposition of positive law... is to be interpreted reasonably, in the light of its evident purpose."
o The principal object of this legislation is to deter men from committing this
crime. Any future group of men finding themselves in this tragic predicament will not make their decisions based on
the contents of the criminal code
o The judiciary is expected to read between the lines.
Tatting J:
Convicts the defendants initially, but later withdraws from the case.
Criticises Foster's judgment:
1. Criticisms of the first of Foster's reasons
o There are great uncertainties with Foster's 'law of nature' doctrine.
o For example. what is it that marks the point at which one becomes governed by the law of nature? Is it the
thickness of the rock, or because they were hungry etc.?

Foster and he are appointed judges of the Commonwealth of Newgarth, sworn to administer the laws of that
Commonwealth.
o They have no authority to applv the 'laws of nature'
~ This is a code in which the law of contracts is more rundamental than the law
ot murder.
Criticisms of the second of Foster's reasons
o Deterrence is not the only purpose of this law e.g. retribution, rehabilitation
o Anyway, the stigma of the word 'murderer' is such that it is quite likely to
deter the men. or at least combe them to wait a tew more davs o What shall be the scope of this exception? For
example, what would have
been the position it Whetmore had been against the plan trom the beginning?
Tatting concedes his difficulty in deciding this case:
"When I feel mvself inclined to accept the view of my brother Foster, Tam repelled by a feeling that his arguments are
intellectually unsound and approach mere rationalization. On the other hand, when I incline to upholding the
conviction, I am struck by the absurdity of directing that these men be put to death when their lives have been saved
at the cost of the lives of ten heroic workmen.'
Keen J
Convicts the defendants
Starts his judgment by making two points:
1. The question of executive clemency is one for the Chief Executive, not the Court.
2. This is not a question of right and wrong. "The sole question before us is whether these defendants did,
within the meaning of the Statute, willfully take the life of Roger Whetmore."
"To put it bluntly, my brothers do not like the fact that the written law requires the conviction of these defendants.
Neither do I, but unlike my brothers I respect the obligations of an office that requires me to put my personal
predilections out of my mind when I come to interpret and appl the law of this Commonwealth." We have a clear cut
principle - the supremacy of the legislative branch of government.
"From that principle flows the obligation of the judiciary to enforce faithfully the written law, and interpret that law in
accordance with its plain meaning." (emphasis added)
• Keen criticizes the purposive approach on the following grounds:
• It can be twistea to produce the outcome vou want
"I am personally so familiar with the process (of judicial reform of disfavored legislative enactments) that in the event
of my brother's incapacity I am sure I could write a satisfactory opinion for him without any prompting whatever...
~ No Statute has an one purpose
The objectives of every Statute are interpreted differently by different people

AN INTRODUCTION TO THE PRINCIPLES AND MORALS OF LEGISLATION:

Jeremy Bentham, 1787

Chapter 1 - The Principle of Utility:

Explanation of the principle:

Nature has placed mankind under the governance of two sovereign masters. pain and pleasure. It is for them alone to
point out what we ought to do, as well as determine what we shall do.
Pleasure "…includes the whole spectrum"
The principle of utility recognizes this subjection. This is that principle which:
..approves or disapproves of every action whatsoever, according to the tendency which it appears to have to
augment or diminish the happiness of the partv whose interest is in guestion."
By utility is meant. " ..that property in any obiect. whereby it tends to produce benefit. advantage, pleasure, good or
happiness or to prevent the happening of mischief, pain, evil or unhappiness to the party whose interest is
considered."
• An action is said to be comfortable to the principle of utility when the tendency it has to augment the happiness of
the community is greater than it has to diminish it.
A man mav be said to be a partisan of the principle of utilty when the approbation or
disapprobation he annexes to any action or to any measure is determined by the tendency which he conceives it to
have to augment or to diminish the happiness of the
communitv
•Embracing this principle is the "natural constitution of the human frame"
Proving/Disproving the principle:
• The principle of utility cannot be proved and does not need to be proved
This principle is fundamental - what is used to prove everything else cannot itself be proved
The principle of utility cannot be contradicted without using the principle of utility
Community v Individual Interest:
• The community is a fictitious body, composed of individual persons who are considered as constituting as it were its
members.
The interest of the communitv is the sum of the interests of the individuals who compose it => it is in vain to talk about
the interest of the community without understanding the interest of the individual.

Note:
The Case of the Robber
• Whose interests are we considering?
Robber, victim or community?
The robber
A robber makes a utilitarian decision.
The gain is greater than loss (sense of guilt, fear of punishment etc)
The victim
• Unlikely to gain any pleasure and certain to have pain
The community
The community comprises individuals
If only the robber and victim are considered PU will yield different results in different circumstances. Consider this.
o If the victim is a billionaire and the robber is desperately poor, the robbery is good according to PU
o But the community stands to gain more by upholding the rule against robbery than by allowing exceptions on
the basis of need
o Some writers call this rule utilitarianism (as opposed to act utilitarianism)
Chapter 2 - Principles Adverse to Utility:
Since the principle of utility is the correct principle, proving another principle to be wrong
requires onlv that the other principle is shown to be ditterent
A principle mav be difterent to that of utilitv in two was:
1. By being constantly opposed to it. This is called asceticism.
2. By being sometimes opposed to it and sometimes not. This is termed the principle of sympathy and
antipathy.