Warnings regarding passions of the popular majority devastating the minority

To some the shutting down of debate and the end of certain ideologies is the aspiration of society. The below is penned response to the effect on the individual when religion, beliefs, ideology, values, morals, history, and law are only in favour of the popular majority.

I have been vilified and told I am the greatest monster known to humanity. But what are my crimes? I am afflicted and distressed, but no offence has been caused by my hand, nor mind or mouth. Yet my enemies have increased and they fiercely hate me. My opinions of love, responsibility, and order have brought the scourge of the mob. When I stand for the rights of the minority, the populace mock me, decry I am what is wrong with society.

All I ask for is strength to carry this through and to be rescued in the end. The only things I carry are my integrity, uprightness, and faith in hope. The nations have entered troubles. Friend and foe is blurred. Right and wrong is not the same as legal and illegal. The legislatures seek to vanquish those out with vogue.

No expression of thought outside the accepted is tolerated. Defence of a liberty becomes grounds for treason. Institutions for free thinking have become the systems for memorization and regurgitation of politically accepted material.

Our legal system punishes the helpless and makes heroes of the wicked. Those with malice live on, but the innocent who incest on privacy are accused of dreadful crimes. Guilty, until proven innocent has become the standard of our system.

History is rewritten and glories of our national past are now shameful to mention. Good deeds are recorded as having guilty intentions and the act of helping one another is written as a mere front. Heroes are vilified and the historic lessons learnt from past mistakes are lost in the rhetoric of advancing an ideology.

The masses have brought loneliness to me. I have retreated to my refuge. My hope is that no shame will be brought one me. Hope is not lost, for I have integrity, a belief in my faith, and a path in truth. I ask for vindication for I wash my hands in innocence, abhor the assemblies of the malice and deceitful. Life is redeemed with mercy and feet resting on level ground.

The ‘Case of the Speluncean Explorers’

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.