The ‘Case of the Speluncean Explorers’ [See: (1949) 62 Harv. L. Rev. 616], is a hypothetical case, written by Harvard law professor, Lon Fuller (1902-1978). The case contains five judgements, each employing a different method of legal reasoning – formalist, positivist, indeterminate, realist and idealist – in rationalizing and justifying their decision. The challenge for the court is one of life and death, as the case involves explorers trapped in a cave, a massive rescue attempt (which results in ten rescuers perishing), and four of the trapped men killing and eating the fifth in order to survive. The criminal code of the society reads, “Whoever shall wilfully take the life of another shall be punished by death”. The justices debated negating factors like: self-defence, quasi-contract theory, necessity and popular opinion, along with the purpose of the criminal law and notions of morality. Prima facia, this case appears void of a ratio decidendi as two of the justices were in the affirmative, one abstained, and the last two opted to over-turn the sentence rendered in the lower court.
Factually, the Speluncean Case is similar to the Chilean miners who have been trapped for nearly two and a half months. Legally, the Speluncean Explorers case is akin to the American cases of U.S. v Holmes (1842), the case of Donner Party and Packer v The People of the State of Colorado (1885), along with the English case of R v Dudley and Stephens (1884). All three reported cases considered the question of necessity. Hume, i, 54-55, defined necessity as “that which arises from the pressure of extreme want: I mean where the person has done something which serves to the support of nature for the time. As might be expected, lawyers have differed about the justice of punishing such a case: some affirming that the notion of dole is excluded in these circumstance of personal distress, or at least that they afford a good plea for a mitigation of the ordinary pains; while others deny that such considerations are at all available in law.” Professor Lon Fuller choice a very clever topic for his case, as it concerned topics which ‘shock the conscience’ – to quote one well known juris.
United States v Holmes (1842) 1 Wallace Junior 1; 26 Fed. Cas. 360 The U.S.S. William Brown hit an iceberg in the frigid waters of the north Atlantic. Survivors, including crewmember Alexander William Holmes, who believed the lifeboat was overloaded and destine to sink in the choppy waters, proposed the idea that a few of the survivors sacrifice their lives in order for a few to live, rather than all onboard perish. Lots were drawn and 14 passengers were tossed into the frigid ocean waters, resulting ultimately in their deaths. In Philadelphia, Holmes was charged with murder, though a grand jury reduced the charges to manslaughter. Holmes pled the defence of necessity, but was convicted on all counts.
A US Military investigation into the Donner Party yielded evidence of possible cannibalism, but no grand jury was assembled. In 2010, biological anthropologists impugned the popular theory of cannibalism, though many of the 46 survivors, out of 87 pioneers, who had gotten trapped in a terrible series of storms (1846-1847) in the Sierra Nevada Mountains, admitted to partaking in cannibalism. A sector of the Donner Party, known as Forlorn Hope (consisting of 15 members) became lost in the snow and mountains and was dying of starvation. Patrick Dolan, having no family or friends within the expedition, drew the short straw and was killed and eaten.
Packer v The People (1885) 8 Colo. 361; 8 Pac. 564 Alfred Packer was one of a small group of explorers who opted to cross dangerous mountain pass in late autumn 1874 in the Territory of Colorado. The expedition was caught in a snow storm and it was revealed that Packer ate portions of the five men for survival. Packer claimed a pack had been formed and dices cast, one man was shot and eaten, as the others died of hypothermia, they too were eaten. When it came down to Packer and another, Packer opted to pre-emptively kill the other man in self-defence. See: J G Hodges, ‘The Legal Experiences of Alfred Packer’ (1942) 19 Dicta 149.
R v Dudley and Stephens [1884] 14 QBD 273 DC The case of Dudley and Stephens was similar in regards to the Holmes case, where the question for the House of Lords boiled down to necessity. The defendants, along with Brooks (a 17 year old boy), were cast adrift in an open boat, after their yacht sank in a storm, 1,600 miles off the Cape of Good Hope. The defendants killed the boy on the 20th day after the wreck and were subsequently rescued four days later. The defendants were found guilty, though the reasoning of Lord Coleridge, CJ is a bit confusing. As he rejects the notion of necessity as a defence for murder, but then goes on to look at moral sacrifice to save the lives of others.
Procedurally, I tend to side with the reasoning of Keen, J. the justice who reflected the positivist perspective, however Foster, J., who was of the idealist persuasion seemed to make very good substantial arguments regarding the purpose of law, which he regards as varying from statute. It seems that if there are going to be rules, and then there needs to be an expected outcome that can be reached every time certain sets of facts present themselves to the court. Though if the law is counter to the judges gut instinct of what is morally (or ethically) regarded as being justifiable and fair, then the law should provide some margin of judicial latitude. It is on this point that I would tend to agree with Ronald Dworkin, professor of law at Harvard, but it is not to say that we should ignore the black letter of the law in favour of a judge’s righteous or demonic interpretation based on some notion of natural law (which is a very positivist approach to the case at hand).
From first reading the Speluncean Case to the writing of this article, my mind has vacillated between notions of what law is and what should be regarded as law. While I favour the positivist reasoning, I seem to ultimately favour the idealists’ views regarding law.
Factually, the Speluncean Case is similar to the Chilean miners who have been trapped for nearly two and a half months. Legally, the Speluncean Explorers case is akin to the American cases of U.S. v Holmes (1842), the case of Donner Party and Packer v The People of the State of Colorado (1885), along with the English case of R v Dudley and Stephens (1884). All three reported cases considered the question of necessity. Hume, i, 54-55, defined necessity as “that which arises from the pressure of extreme want: I mean where the person has done something which serves to the support of nature for the time. As might be expected, lawyers have differed about the justice of punishing such a case: some affirming that the notion of dole is excluded in these circumstance of personal distress, or at least that they afford a good plea for a mitigation of the ordinary pains; while others deny that such considerations are at all available in law.” Professor Lon Fuller choice a very clever topic for his case, as it concerned topics which ‘shock the conscience’ – to quote one well known juris.
United States v Holmes (1842) 1 Wallace Junior 1; 26 Fed. Cas. 360 The U.S.S. William Brown hit an iceberg in the frigid waters of the north Atlantic. Survivors, including crewmember Alexander William Holmes, who believed the lifeboat was overloaded and destine to sink in the choppy waters, proposed the idea that a few of the survivors sacrifice their lives in order for a few to live, rather than all onboard perish. Lots were drawn and 14 passengers were tossed into the frigid ocean waters, resulting ultimately in their deaths. In Philadelphia, Holmes was charged with murder, though a grand jury reduced the charges to manslaughter. Holmes pled the defence of necessity, but was convicted on all counts.
A US Military investigation into the Donner Party yielded evidence of possible cannibalism, but no grand jury was assembled. In 2010, biological anthropologists impugned the popular theory of cannibalism, though many of the 46 survivors, out of 87 pioneers, who had gotten trapped in a terrible series of storms (1846-1847) in the Sierra Nevada Mountains, admitted to partaking in cannibalism. A sector of the Donner Party, known as Forlorn Hope (consisting of 15 members) became lost in the snow and mountains and was dying of starvation. Patrick Dolan, having no family or friends within the expedition, drew the short straw and was killed and eaten.
Packer v The People (1885) 8 Colo. 361; 8 Pac. 564 Alfred Packer was one of a small group of explorers who opted to cross dangerous mountain pass in late autumn 1874 in the Territory of Colorado. The expedition was caught in a snow storm and it was revealed that Packer ate portions of the five men for survival. Packer claimed a pack had been formed and dices cast, one man was shot and eaten, as the others died of hypothermia, they too were eaten. When it came down to Packer and another, Packer opted to pre-emptively kill the other man in self-defence. See: J G Hodges, ‘The Legal Experiences of Alfred Packer’ (1942) 19 Dicta 149.
R v Dudley and Stephens [1884] 14 QBD 273 DC The case of Dudley and Stephens was similar in regards to the Holmes case, where the question for the House of Lords boiled down to necessity. The defendants, along with Brooks (a 17 year old boy), were cast adrift in an open boat, after their yacht sank in a storm, 1,600 miles off the Cape of Good Hope. The defendants killed the boy on the 20th day after the wreck and were subsequently rescued four days later. The defendants were found guilty, though the reasoning of Lord Coleridge, CJ is a bit confusing. As he rejects the notion of necessity as a defence for murder, but then goes on to look at moral sacrifice to save the lives of others.
Procedurally, I tend to side with the reasoning of Keen, J. the justice who reflected the positivist perspective, however Foster, J., who was of the idealist persuasion seemed to make very good substantial arguments regarding the purpose of law, which he regards as varying from statute. It seems that if there are going to be rules, and then there needs to be an expected outcome that can be reached every time certain sets of facts present themselves to the court. Though if the law is counter to the judges gut instinct of what is morally (or ethically) regarded as being justifiable and fair, then the law should provide some margin of judicial latitude. It is on this point that I would tend to agree with Ronald Dworkin, professor of law at Harvard, but it is not to say that we should ignore the black letter of the law in favour of a judge’s righteous or demonic interpretation based on some notion of natural law (which is a very positivist approach to the case at hand).
From first reading the Speluncean Case to the writing of this article, my mind has vacillated between notions of what law is and what should be regarded as law. While I favour the positivist reasoning, I seem to ultimately favour the idealists’ views regarding law.
No comments:
Post a Comment