The Case Of The Speluncean Explorers An Analytical Study

The Case of the Speluncean Explorers A Study

PROLOGUE

Professor L. Fuller was adept in explaining law through allegory. It is said that there is no
better way to study law than to read cases. There is no better way to study legal philosophy
than to see how various theories clash with each other. The Professor achieved all of these
objectives in the brilliantly imagined case that he invented The Case of the Speluncean
Explorers.

Professor Lon L. Fuller's Case of the Speluncean Explorers is said to be the greatest fictitious
legal case of all time. That is saying a lot, for it has some stiff competition. While its
competitors may outdo it in courtroom drama, character development, or investigative
suspense, none matches it in legal depth or dialectical agility. It doesn't show what makes
some lawyer's caseload interesting, but what makes law itself interesting.[1] His story of Rex
is another interesting allegory[2] which speaks about the characteristics which a law
shouldnt have. The following statement by Fuller in his book Morality of Law outlines his
philosophy:
The only formula that might be called a definition of law offered in these writings
is by now thoroughly familiar: law is the enterprise of subjecting human conduct to
the governance of rules. Unlike most modern theories of law, this view treats law as
an activity and regards a legal system as the product of a sustained purposive effort.
[3]

ABOUT THE AUTHOR

Fuller (1902-78) is a representative of the school of legal thought known as purposive
jurisprudence[4]. This is a kind of jurisprudence which sees the activities of the courts as
reflecting the very purposes of the law, which turn upon the subjecting of the human conduct
to the control of rules. Law and morality are intertwined and, according to Fuller a law
which is completely divorced from morality, ceases to be law.
Fuller was an American, a Texan to be precise. He served as professor of Law atHarvard
University for many years, and is noted in American law for his contributions to the law of
contracts. His debate with H.L.A. Hart in the Harvard Law Review (Vol. 71) was of
significant importance for framing the modern conflict between legal positivism and natural
law. Fuller was an important influence on Ronald Dworkin, who was one of his students at
Harvard Law.[5] He is regarded as one of the greatest legal philosophers of the 20 th century.
He had a profound effect on American jurisprudence.

Fullers The Morality of Law, first published in 1964, is his most famous and, perhaps, his
most controversial work. At a time when legal positivism still dominated jurisprudence, the
suggestion that law and morality were not only connected but connected intimately was such
an affront to scientific thinking that it brought repeated charges of axe grinding from one
reviewer.[6]

CASE OF SPELUNCEAN EXPLORERS

 This famous fictitious legal case was created by Lon L. Fuller in his article, "The Case of the
Speluncean Explorers,". The case tells the story of a group of spelunkers (cave-explorers) in
the Commonwealth of Newgarth, trapped in a cave by a landslide. As they approach the point
of starvation, they make radio contact with the rescue team. Engineers on the team estimate
that the rescue will take another 10 days. The men describe their physical condition to
physicians at the rescue camp and ask whether they can survive another 10 days without
food. The physicians think this very unlikely. Then the spelunkers ask whether they could
survive another 10 days if they killed and ate a member of their party. The physicians
reluctantly answer that they would. Finally, the men ask whether they ought to hold a lottery
to determine whom to kill and eat. No one at the rescue camp is willing to answer this
question. The men turn off their radio, and some time later hold a lottery, kill the loser, and
eat him. When they are rescued, they are prosecuted for murder, which in Newgarth carries a
mandatory death penalty. Fuller wrote five Supreme Court opinions on the case which
explore the facts from the perspectives of profoundly different legal principles.
The result was a focused and concrete illustration of the range of Anglo-American legal
philosophy at mid-century- THE SPELUNCEAN EXPLORERS CASE.

It is generally believed that Fullers case is based on two real cases, namely
U.S. v. Holmes (1842) and
Regina v. Dudley & Stephens (1884).
These two U.S cases can be called as life boat cases in which disaster at sea was followed by
homicide and prosecution. In the Holmes case, the homicides were to lighten a badly
overloaded lifeboat. In Dudley & Stephens, the homicide was to create a meal for the starving
survivors.[7]

One can easily see the uncanny similarities between the facts of these two cases and that of
Fuller. Fuller borrowed from these cases for his own: extremities of desperation, lotteries,
cannibalism, popular sympathy for the defendants, politically difficult prosecutions, defenses
of stark necessity, jury convictions and the possibility of pardons. Even small details, like the
jury's special verdict in Dudley & Stephens, comes up again in Fuller's case. But an inventory
of these borrowed elements only brings into relief the extent of Fuller's creativity. He moved
the accident from the high seas to a cave within Newgarth.

PART I: THE ALLEGORY/STORY

Lon L. Fullers the case of Speluncean Explorers was first published in 1949 in the Harvard
Law Review.[8] Fuller wrote this story in order to illustrate a number of different theories
about the nature of law and legal reasoning. The various opinions are written by fictional
judges who represent different theories, and thus each opinion illustrates one or more of those
theories.
In the case of Speluncean Explorers, Fullers lesson is that the laws basic integrity is to be
found within the very processes which are utilized in the attainment of its proclaimed goals.
When Lon Fuller had put together his Speluncean Explorers hypothetical in the 1949, there
were only two significant jurisprudential philosophies in the air: natural law and positivism.
The former had largely been discredited, but was revived in the hypothetical by Justice
Foster[9], who claimed that the trapped explorers were in a moral, if not geographical "state
of nature."
This case is set in a mythical future, 4300 A.D. Fuller did not choose the date in random, he
estimated that in 1949[10], the centuries which separate us from the year 4300 are roughly
equal to those that have passed since the Age of Pericles. The case is heard in the Court of
General Instances of the County of Stowfield in the Commonwealth of Newgarth, which has
a charter of government drawn up originally by the survivors of a past catastrophe (the Great
Spiral). The case is based on a statute N.C.S.A (N.S.) which states in specific terms in Section
12-A thatwhoever lawfully takes the life of another shall be punished by death.

The facts of the case are outlined as follows:

The four defendants and Roger Whetmore were members of a Speluncean Society in the
Commonwealth of Newgarth. This society encouraged the exploration of caves. Early in May
of 4299 they, in the company of Roger Whetmore, then also a member of the Society,
penetrated into the interior of a limestone cavern of the type found in the Central Plateau of
this Commonwealth.[11] While exploring the cave, when they were in a position remote from
the mouth of the cave, a landslide occurred. Heavy boulders fell in such a manner as to block
completely the only known opening to the cave, and therefore, they were all trapped within
the cavern. The five men were carrying scant resources with them. On their non-return the
families of the explorers informed the Society which in turn informed the State. A rescue
party was promptly dispatched for their rescue. In the rescue operations, 10 workmen lost
their lives in fresh landslides. A great expense was also incurred to rescue the trapped men.

It was found that one of the explorers has a portable radio set capable of sending and
receiving messages. Therefore, contact was established by the rescue team with the trapped
men. The five trapped men, after learning that it would be at least ten more days until they
were rescued, sought a professional medical opinion as to whether or not they could possibly
survive this duration. Upon being informed that they would not, they deliberated for eight
hours after which they sought counsel first from the physician, then from a government
official, and finally from a minister as to whether or not it would be advisable to cast lots and
kill and consume one of their members so that the others may survive. None of the three
parties were willing to answer. None of them answered in the affirmative or negative. With
their question unanswered, the men severed radio contact with the people outside.

On their eventual release, it became apparent that some twenty three days after their entry
into the cave, the defendants had killed and eaten Whetmore. In evidence, it was indicated
that Whetmore had suggested that the groups survival would be impossible without nutrient,
and that this would necessitate the eating of flesh of a member of the group. It was also said
that Whetmore himself had suggested the casting of lots by dice to choose such unfortunate
member. However, Whetmore after reflection withdrew from the offer terming it frightful and
odious. He was accused by the defendants of breach of faith and they proceeded to cast dice.
Whetmore also declared that he had no objection to one of the defendants casting the dice on
his behalf. The throw of the dice was unfortunately against Whetmore. The other group
members therefore killed him after which they ate his flesh.
After the defendants had been rescued from the cave and their suitable treatment, they were
indicted for the murder of Whetmore in the Court of General Instances, the County of
Stowfield. The court found all of them guilty and were sentenced to death by hanging.
Following the discharge of the jury, its members joined in communicating with the states
Chief Executive and requesting that the death sentence be commuted to imprisonment for a
period of six months. Similar action was taken by the Trial judge. The defendants brought a
petition of error to the Supreme Court of Newgarth. The court issued its opinions in the year
4300.
In the trial that ensued, the five judge bench gave differing opinions and profoundly different
ratios for the same. Fuller wrote these five opinions as representing different schools of
thought.

PART II OPINION OF CHIEF JUSTICE TRUEPENNY

In his argument Chief Justice Truepenny[12] after stating the facts as mentioned in Part I of
this paper ruled in favour for strictly applying the letter of the law rather than interpreting the
law. According to him the jury and the trial judge followed a course that was not only fair and
wise, but the only course that was open to them under the law. He however also proposed to
his colleagues that they follow the example of the jury and trial judge by joining in the
communications they have addressed to the Chief Executive of the State for clemency for the
defendants.
Chief justice Truepenny appears to be an Advocate of Textualism or Institutionalism. He
represented the Positivist[13] perspective. According to this school law should be given a
literal interpretation. Law is what it is rather than what it ought to be. That is, it is free from
moral considerations once it is enacted by a sovereign authority.
VERDICT: He affirmed the decision of the trial court but however requested clemency also.
ANALYSIS
The main thrust of this argument presented by Chief Justice Truepenny is that the statue
under scrutiny is not ambiguous and is plainly stated for applying the law rather than
interpreting the law. And, as the statue states, Whoever shall willfully take the life of another
shall be punished by death, he said the defendants should be hanged till death. However,
Truepennys argument has much strength which, at face value, can be applied to this case in
question. Arguably, first, the language of the statue applies directly to what the defendants did
to Roger Whetmore. Therefore, there is no argument not to punish defendants following the
existing law. Also, there is no question into the matter that the men on trial willfully took
the life of Whetmore. It is an admitted fat that they did.
However, there is another aspect of this peculiar case. As has been stated in the testimony of
the defendants that Whetmore was in concurrence with the decision to cast lots to determine
his own fate. Now, therefore, the question is, does all accountability of Roger Whetmores
death reside in the defendants alone, or should Whetmore be held partly responsible as well
for the crime.
Therefore, it is submitted here that it would be impractical to merely apply the statue on the
grounds of the text and ignoring the basic foundation of why law has become law. There
should be utilization of prudence in decision of cases and each case should be decided on its
merits. What law requires is intelligent obedience, not idiotic adherence.
To conclude, Chief Justice Truepenny's legal analysis was short. He recommended a plea
for clemency to the Chief Executive because he felt the statute was clearly against the
conspirators. But there is no reflection or consideration of the statute itself; it is assumed
to speak against the defendants. The appeal for clemency seemed as an abandonment of
the judicial role, a sort of "cop out," or an admission that the legal system was not really
able to handle the complexities of the issue.

OPINION OF JUSTICE FOSTER

Judge Foster it is said represents the alter-ego of Fuller. He represents the natural
school[14] of jurisprudence. His opinion is the best written one of the five.
Justice Foster expressed shock at hearing of Chief Justice Truepennys opinion. He argued
that the Law of the Commonwealth is at stake if we try to textually apply the law in this case.
According to him, the defendants when trapped in the cave were outside the jurisdiction of
Commonwealth of Newgarth.

VERDICT: In his verdict, he set aside the verdict of the Trial court and held that purposive
construction should be given to the statutes.

ANALYSIS
Justice Foster did not believe that the law compels the monstrous conclusion that the
defendants were murderers. On the contrary, he said it declares them to be innocent of any
crime. He rested this conclusion on two independent grounds. He said the defendants are not
guilty on both of these grounds independently of each other.
The first of these grounds is that the enacted or positive law of this Commonwealth, including
all of its statutes and precedents, is governed instead by what ancient writers in Europe and
America called "the law of nature." When a situation arises in which the coexistence of men
becomes impossible, then a condition that underlies all of judicial precedents and statutes has
ceased to exist. He says, when that condition disappears, then the force of our positive law
disappears with it. It is similar to a situation in which a crime is committed outside the
territorial jurisdiction of the State. This has the consequences that the law applicable to them
is not the enacted and established law of this commonwealth, but the law derived from those
principles that were appropriate to their condition. He therefore said applying this principle
the defendants were not guilty of any crime.
He says that positive law is inherently territorial. Therefore, when a person is outside its
scope, the rules of law would not apply to him. Applying this principle in the instant case, he
says that the defendants were separated from the State by rock walls. Within them the State
was not even able to supply them with succour. He adds that the State was created by a social
contract to provide peace, order and succour to all.

The second ground that he takes is that one of the most ancient bits of legal wisdom is the
saying that a man may break the letter of the law without breaking the law itself. According
to him every proposition of positive law should be interpreted reasonably, in the light of its
evident purpose. In the judgment, Judge Foster says Centuries ago it was established that a
killing in self defense is excused. There is nothing in the wording of the statute that suggests
this exception. But the exception in favor of self-defense is not out of the words of the statute,
but out of its purpose. When the rationale of the excuse of self-defense is thus explained, it
becomes apparent that precisely the same reasoning is applicable to the case at bar. That is,
he argues that self-preservation is the most basic of all human tendencies. In the instant case,
the defendants did not kill Whetmore out of mala fides but because they wanted to give
succour to their starving bodies. Therefore, this was a killing in self defence.
He further sites the case[15] of Commonwealth v. Staymore wherein it was held that a person
cannot be held guilty for anything which was beyond his control. It is here submitted that
arguably, when a man made law is enacted or enforced, there is always a reason why the law
was constructed in the first place. And therefore, law should be construed within its purpose.
Further, he adds that if the State could sacrifice 10 lives to save one, why cannot one life be
sacrificed to save four.

To conclude, Justice Foster based his justification on the following. He says when we
consider a case which has taken place a mile beyond territorial limits of a state; no one would
pretend that the law of the state would be applicable to the case. This means that law is not
absolute, and that the positive law is predicated on the possibility of men's coexistence in
society. When a situation arises in which the coexistence of men becomes impossible, then a
condition that underlies all of our precedents and statutes ceases to exist. When that condition
disappears that the force of our positive law disappears with it, then the law of nature works.
Self-defense is a right not out of the words of a penal statute (like the one in this case), but
out of its purpose. Even though there is nothing in the wording of the statute that suggests
self-defense, the exception of self-defense is accepted.

OPINION OF JUSTICE TATTING.

Judge Tatting had a complete opposite view of that of Judge Foster. He said he cannot accept
any of the latters opinions, more so the first part of it. According to Tatting J. law of contract
cannot be more powerful than law of murder. Secondly he asked a very fundamental question
when exactly did the 5-member company move from a state of civil society to a state of
nature. Was it when the party entered the cave, or when the landslide occurred or when the
party crossed the threshold of starvation? Further, he asked the Supreme Court of Newgarth
was created out of a positive law. From where does the court arrive its authority to decide a
dispute on law of nature rather than law of the State?
VERDICT: He withdrew from the case.
ANALYSIS
Tatting J. also represented the positivist school.
Tatting J. argues that it is true that a statute should be applied in the light of its purpose, and
that one of the purposes of criminal legislation is recognized to be deterrence. The difficulty
is that other purposes are also ascribed to the law of crimes. It has been said that one of its
objects is to provide an orderly outlet for the instinctive human demand for retribution. He
also argued that law of retribution is equally important if not more than law of
deterrence[16] in criminal law. He quoted the case of Commonwealth v. Scape wherein it
was held that the one of the objects of law is also to provide outlet for retribution. It has also
been said that its object is the rehabilitation of the wrongdoer as in Commonwealth v.
Makeover.
He also said that the there is no doubt that the defendants have committed murder.
Citing Commonwealth v. Valjean[17], he said if a person cannot be pardoned for stealing a
loaf of bread, how can one be forgiven for killing a person out of starvation.[18] Further, he
says assuming that we must interpret a statue in the light of its purpose, what are we to do
when it has many purposes or when its purposes are disputed? The familiar explanation for
the excuse of self-defense cannot be applied by analogy to the facts of this case. These men
acted not only "willfully" but also with great deliberation and after hours of discussion what
they should do.
He however gave credence to Foster J. for his theory of purposive construction of a statute.
He added that it is a matter of regret that the Prosecutor saw fit to ask for an indictment of
murder. If we had a provision in our statutes making it a crime to eat human flesh, that would
have been a more appropriate charge. If no other charge suited to the facts of this case could
be brought against the defendants, it would have been wiser not to have indicted them at all.
Further, it seems from the allegory that Judge Tatting believed in the power of judicial
precedents. He was confused as to what effect this precedent [19] would have on future cases
before the courts.
Since He was wholly unable to resolve the doubts that beset him about the law of this case,
He declared his withdrawal from the case
From the allegory, it can be said that Judge Tatting ultimately withdrew from the case
because of the overwhelming dissonance he felt after thinking through the issues. He
disagreed with Foster on the state of nature issue, but he agreed with Foster that there is
precedential value in his theory of self-defense. He however, did not see statutes as having
just one purpose, and according to him there are other explanations of self-defense stressing
the importance of "non-willful" conduct. But the conspirators acted "willfully." And that is
the reason for his confusion. He sees that both perspectives (acquittal and conviction)
have equally strong arguments and he cannot decide.

OPINION OF JUSTICE KEEN

At the outset of his opinion, Judge Keen says Executive clemency is a question for the Chief
Executive, not for the judges to direct the Chief Executive. He therefore disapproved of that
passage in the opinion of the Chief Justice in which he in effect gives instructions to the
Chief Executive as to what he should do in this case.
He said while deciding whether what these men did was "right" or wrong" "wicked" or
"good is not for a judge to decide. He should not apply his conceptions of morality, but the
law of the land. The sole question before us, therefore, he said, for decision is whether these
defendants did, within the meaning of N.C.S. A. (N.S.) 12-A, willfully take the life of
Roger Whetmore. On this count, any candid observer would concede at once that these
defendants did "willfully take the life" of Roger Whetmore. He then proceeded to
acknowledge that hard decisions are never popular, but that hard decision may even have a
certain moral value by bringing home to the people their own responsibilities toward the law
that is ultimately their creation and by reminding them that there is no principle of personal
grace that can relieve the mistakes of their representatives, i.e. the legislators.
VERDICT: He found the defendants guilty.
ANALYSIS
Keen J too belonged to the positivist school. He appears to be an advocate of Textualism. He
stressed that asking for executive clemency is improper for judges, although they may do so
in their capacity as private citizens. He said that the major problem in the case is the
failure of others to separate law and morality. Once this is done, one realizes that
statutes are not necessarily embodiments of moral thoughts and a decision is much
easier.
He said there was a time in the Commonwealth when the judges did in fact legislate very
freely. But we now have a clear-cut principle, which is the supremacy of the legislative
branch of our government. From that principle flows the obligation of the judiciary to enforce
faithfully the written law in accordance with its plain meaning without reference to our
personal desires or our individual conceptions of justice. Here, he outlines the principle of
strict adherence to separation of powers of the three chief organs of government.
Then, he goes into the history of the community, stressing that judicial activism or
indeterminacy of interpretation actually was a factor in precipitating a civil war.[20]He also
declines to accept the theory that there is only one purpose for a statute. It really is impossible
for a judge to divine legislative "purpose." Finally, a hard and harsh decision here is
probably good, for it forces the legislature to reconsider the statute. He says it is for the
people to remind the Legislature of his mistake and not for the judiciary. The scope of
the exception in favor of self-defense as it has been applied by the Court is plain: it applies to
cases of resisting an aggressive threat to the party's own life. It is therefore too clear for
argument that this case does not fall within the scope of the exception, since it is plain that
Whetmore made no threat against the lives of these defendants
To conclude, it can be said that according to him a law in the form of a law can be enforced if
it is a good law or a bad one. And lawyer should think of the letter of the law not personal
moral. And the process of the judicial reform requires steps on the part of the
Legislature/executive.

OPINION OF JUSTICE HANDY.

Justice Handy believed that law should be what the public wants. He disproved of what he
called his colleagues' ability to throw an obscuring curtain of legalisms about every issue
presented to them for decision. Judges should not go into positivism or natural law, right or
wrong. According to him, since by a poll it was said that the majority populace wanted the
defendants to be let off with a token punishment, the judges should comply with this popular
opinion.
According to him government is a human affair, and that men are ruled, not by words on
paper or by abstract theories, but by other men. They are ruled well when their rulers
understand the feelings and conceptions of the masses. They are ruled badly when that
understanding is lacking. Judges need to be in tune with popular opinion. He disapproved of
the practice of the courts. He observed- Lawyers are hired by both sides to analyze and
dissect. Judges and attorneys vie with one another to see who can discover the greatest
number of difficulties and distinctions in a single set of facts. Each side tries to find cases,
real or imagined, that will embarrass the demonstrations of the other side. To escape this
embarrassment, still further distinctions are invented and imported into the situation. When a
set of facts has been subjected to this kind of treatment for a sufficient time, all the life and
juice have gone out of it and we have left a handful of dust.
According to him, the case before the court was a question of practical wisdom, to be
exercised in context, not of abstract theory, but of human realities. He said the most obvious
advantage of treating forms and abstract concepts as instruments is that it permits one to go
about ones daily tasks with efficiency and common sense. When these conceptions are
applied to the case before the courts, decision becomes perfectly easy. He further added that
 this case has aroused enormous public interest. In one widely read newspaper chains poll, on
the question, "what do you think the Supreme Court should do with the Speluncean
explorer? about 90% expressed a belief that the defendants should be pardoned or let off
with a kind of token punishment. It is perfectly clear, then, how the public feels about the
case. And this is the decision the judges should give.
VERDICT: He set aside the verdict and said that the court should follow public opinion.

ANALYSIS
Judge Handy is the judge of practical/popular wisdom.[21] In the allegory, he echoed the
views of sociological school of jurisprudence. Practical wisdom is a significant category for
Aristotle in his Nicomachean Ethics and refers to the skill needed in life to deliberate and
reach decisions (in contrast to theoretical knowledge or practical skill).[22] This judge is
very solicitous of public opinion, believing that the legitimacy of the judicial enterprise
is because it reflects the will of the people. This aspect has practical implications in our
media-driven society. Many a times we see that popular media has had an effect on judges.
[23] Further, trial by media has been an issue of hot debate in legal as well as popular circles
since some time now.

This was the last of the five opinions. The Supreme Court being equally divided, the
conviction and the sentence of the Court of General Instances was affirmed. The defendants
were ordered to be hanged.

CONCLUSION AND FINDINGS

Fullers case looks at separation of powers issue (through the notion of recommending
clemency to the Chief Executive), natural law theory, positivism, statutory interpretation
(whether there are "gaps" in statutes and how to "fill" them), the purpose(s) of statutes, the
role of precedents and how to use them, the relationship of law and morality, judging as the
manifestation of practical reason, various theories of self-defense. All in all it deals with
almost all the issues that could be contemplated in mid-20th century.
As said earlier, it is widely believed that Fuller based his case on two real cases. A brief gist
of the cases is produced below for the benefit of the reader.
U.S. vs. Holmes (1842)[24]
FACTS: In 1841, the U.S. immigrant ship William Brown sailing from Liverpool to
Philadelphia, sank after hitting an iceberg. 42 people, including the mate and several sailors,
found themselves on one of the life boats; after a day or so it began to spring leaks and was
sinking. Crewmen, including the defendant Alexander William Holmes, believed that their
overloaded lifeboat was in danger of itself sinking and put 14 or 16 passengers overboard to
their inevitable deaths in the frigid water. On his return to Philadelphia, Holmes was arrested
and charged with murder. However, the grand jury rejected the indictment and
substituted manslaughter. The judge in the United States circuit court for the Eastern District
of Pennsylvania instructed the jury that necessity might be a complete defence but that
"before the protection of the law of necessity can be invoked, a case of necessity must exist,
the slayer must be faultless, he must owe no duty to the victim." The jury convicted Holmes
and the principle of necessity was not tested by any higher court.
Holmes was found guilty and sentenced to six months in prison and a fine of $20; he served
the time but did not have to pay the fine, because he was eventually pardoned by President
John Tyler.
 Regina vs. Dudley & Stephens (1884)[25]
There was another case in 1884 (Queen v. Dudley) which resembles the Speluncean Case
even more closely, insofar as it too involved cannibalism, albeit cannibalism on the high seas.
The facts of the case are as follows:
A yacht sailing from Essex, England to Sydney, Australia sank, leaving four crew members in
a 13-foot lifeboat: the captain (Dudley) and the mate (Stephens), and two seamen, Brooks and
Parker. Parker was 17 years old and already weak. After several days without food and water,
Dudley suggested to Stephens that they conduct a lottery to choose one person to be killed
and eaten by the others. Stephens refused. Later Dudley convinced Stephens that they should
kill Parker, who was already ill and without family, and eat him. They did so and consumed
about half of Parker over the next few days, at which point they were rescued by a German
Boat. The boat put in at Falmouth, England on its way back to Germany. There the men were
charged with murder. The public was on the side of the defendants, so the judge asked the
jury for a special verdict: not a finding of guilt or innocence, but simply a finding on the
facts.
Based on the facts found by the jury, the judge found the men guilty and sentenced them to
hang. They were pardoned by Queen Victoria.
As said earlier, when Lon Fuller had put together his Speluncean Explorers hypothetical in
the 1940s, there really were only two significant jurisprudential philosophies in the air:
natural law and positivism. The former had largely been discredited, but was revived in the
hypothetical by Justice Foster, who claimed that the trapped explorers were in a moral, if not
geographical "state of nature." It seems that Fuller included a natural law argument in the
hypothetical was that the one of the underlying real cases was US v. Holmes, where the
defendant's attorneys unsuccessfully tried to argue such a defense for Holmes. Positivism, the
other theory, was all the rage in the 1940s. Positivism is a "big umbrella" word, which covers
all things from the utilitarianism of Jeremy Bentham to any effort that wants to separate law
from morality. Justice Keen is the exponent of positivism in the hypothetical.

Through this allegory, Fuller is seeking consideration of the purposes for which law exists.
The varying nature of judgements of the Supreme Court are used to illustrate a variety of
approaches to law. The opinion of the Chief Justice seems to be based upon a belief in the
significance of executive clemency in appeals against conviction and sentence. Foster J (who
accepts Fullers own views) draws attention to the importance of the spirit of the law rather
than the letter. Tatting J. evades responsibility by declaring his inability to reach a decision.
Keen J. follows the philosophy of positivism in separating matters of law and morality.
Handy J. advocates a decision which he believes to be administratively convenient and
popular.
Through the decision of Foster J., Fuller affirms his belief in the need for intertwining of law,
morality and reason in deciding legal questions. Each strand of the process is necessary.
Positivism provides a distorted view of law, which is seen as a one-way projection of
authority the law is set out and it is the duty of the citizen to obey its letter.
Fullers own postscript to the case is of particular significance. The case, he notes, was
constructed for the sole purpose of bringing into a common focus certain divergent
philosophies of law and government, philosophies which have existed since the time of the
ancient Greeks. Even after we have sought solutions to the problems raised in earlier times,
the debates will continue. He ends with saying that if there is any element of prediction in the
case, it does not go beyond a suggestion that the questions raised here are permanent
questions before the human race. This statement, it is submitted here is particularly true.
Debates on judicial accountability, judicial activism, separation of powers, role of media,
retributive theory of punishment v. reformative theory of punishment are still constant topics
of debate and discussions even after 60 years of this allegory. And it seems unlikely that these
debates will be settled soon.