L.L.

Fuller Case 1 By; Shaista Malik

Q: Do you agree that the case of Speluncean

Explorers (Fuller Case) leads to the study of theory of legal positivism, theory of morality and even the theory of necessity? Ans: The case of Speluncean Explorers is a famous hypothetical
case used in the study of law, which was written by Lon Fuller in 1949 for Havard Law Review. This hypothetical case illustrates divergent theories of law. Lon Fuller's Case of the Speluncean Explorers is the greatest fictitious legal case of all time. It is called "a classic in jurisprudence," "a microcosm of this century's debates," and a "breathtaking intellectual accomplishment." Fuller based his fictitious case on some disturbingly real ones. The two uppermost in his mind were undoubtedly U.S. v. Holmes (1842) and Regina v. Dudley & Stephens (1884), two lifeboat 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. It would oversimplify Fuller's ingenuity to say that he fine-tuned the facts until the case for acquittal was just about exactly as strong as the case for conviction. The case would be balanced in a broader sense if the several opinions were equally strong in their arguments or equally faithful to the law.

BRIEF FACTS:
The Case of Speluncean Explorers (1949) In the Supreme Court of Newgarth, 4300
The defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 4299, they in the company of Roger Whetmore penetrated into the interior of a limestone cavern. Meanwhile, a landslide occurred and heavy boulders completely blocked the only known opening of the cave. When they were finally released it was learned that Whetmore had been killed and eaten by his companions. From the testimony of defendants which was accepted by the jury, it appeared that it was Whetmore who proposed that they might find nutriment in the flesh of one of their own number, without which their survival was impossible. It was also Whetmore who first proposed the

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use of some method of casting lots with a pair of dice he happened to have with him. However, Whetmore withdrew himself from the arrangement and decided to wait for the rescue team. Others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmores turn, the cast went against him and he was then put to death and eaten by his companions.

Decision of the Trial Court; After the rescue of defendants...

they were indicted for the murder of Roger Whetmore. The Trial Judge then sentenced them to be hanged because the law of commonwealth permitting him no discretion with respect to the penalty to be imposed.

Appeal to the Supreme Court; After the release of the jury, its
members joined in a communication that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication. In this case the jury asked the court for a special verdict i.e. that the court determine the guilt or innocence of the defendants and whether the decision of the trial court was correct? The Court concluded being equally divided that the original decision would stand and that the men should be hanged for murder. The Supreme Court, where the panel had different notions to conclude this case, affirmed the decision of the Court of General Instances. The five justices take different views on the philosophy of jurisprudence

THEORY OF LEGAL POSITIVISM:

Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers like Jeremy Bentham and John Austin. The theory of legal positivism states that; There is not any inherent or necessary association between the validity conditions of law and ethics or morality. Laws are rules made, whether deliberately or unintentionally, by human beings.

Truepenny, C.J; Truepenny J. admires the decision made by the jury

and trial judge. He felt to comply with the only course open to them

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under the law (Statue N.C.S.A. (N.S.) Sec. 12-A); the willful taking of another mans life must be punishable by death permits no exception to this case and our personal sympathies must not overshadow the strength of this statute.

Justice Keen; Keen J. is the exponent of positivism in the

hypothetical. He is of the opinion that; It is not the function of judiciary to give instructions to the executive. Judiciary is not concerned with morality. The sole question is whether the explorers willfully took the life of Whetmore? The answer is clear that they intentionally and willfully murdered Whetmore. He states that the legislative branch of the government is supreme; therefore the judiciary must give effect to that law and not concern itself with issues of morality. He says that a judge is not there to determine right or wrong but to apply the law of the land.

So, the views of the justice Keen and justice Truepenny led to the theory of legal positivism or theory of positivism, a school of thought in philosophy of law and jurisprudence, claims there is no inherent and necessary connection between the validity, condition of law and ethics or morality. According to this theory, the laws of Commonwealth was clear on this situation that whoever willfully take the life of another, shall be punished with death. (Statute N.C.S.A (N.S.), Sec 12-A.)

NATURAL LAW OR MORALITY:

When Lon Fuller put together his Speluncean Explorers 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." I think the reason 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.

Justice Foster; He supports the innocence of the explores and

opines that; The case is governed by law of nature and morality.

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The circumstances meant that the basic principles underlying the law that assume that men can live together could no longer apply. This was an extreme situation and thus the underlying premise of legal order lost meaning. Therefore the law of nature applies and under those conditions they agreed to a new set of principles, to which Whetmore was himself a party. The defendants were innocent under the circumstances.

THEORY OF NECESSITY:
The term Doctrine of Necessity is a term used to describe the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional. The maxim on which the doctrine is based originated in the writings of the medieval jurist Henry de Bracton, and similar justifications for this kind of extra-legal action have been advanced by more recent legal authorities, including William Blackstone. In modern times, the term was first used in a controversial 1954 judgment in which Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by Governor General, Ghulam Mohammad.[1] In his judgment, the Chief Justice cited Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity', thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing.

Justice Foster; Foster J. observed that the law of our

Commonwealth should not compel these explorers of being murderers. He believes to declare them innocent on two independent grounds; The inapplicability of the positive law of this Commonwealth including all its statutes and precedents. The case should be handled in the manner of what ancient writers in Europe and America call the law of nature. This means when man is in so far over his head that coexistence becomes impossible, the force of positive law should disappear. Situation these men found themselves has taken away them from the effects of positive law. It is assumed that the consolidated statutes have the powers to penetrate the solid rocks. These men of course, violated the statute that he who shall willfully take the life of another is a murderer. So, Justice Fosters arguments lead us to the theory of necessity also; to interpret and apply the statute not literally that holds the fate of

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the explorers. And thereby interpret the statute in way for the exception of self defense although the same is not mentioned literally. A man threatening the life of another would naturally repel the threatened man. The same reasoning is applicable to the case at hand. If a group of men ever find themselves in a predicament such as explorers, you can be sure decisions on whether to live or die will not be controlled by the contents of our law. Therefore, the statute in question does not apply to the case at hand. Foster's concluded that the defendants are innocent of the murder of Whetmore and the conviction should be set aside.

Justice Tatting;
Justice Tatting disregarded the Justice Fosters plea of; state of nature, self defense and necessity, referred another case of Commonwealth v. Valjean, where the defendant was accused for the theft of a loaf of bread. His defense of starving to death and needed that bread to survive was not taken into account. If extreme hunger cannot justify the theft of food, how would it justify the killing and eating of a man? But, j. Tatting could not reach any conclusion of this case and declared his withdrawal from the decision.

Justice Handy;
Justice Handy observed that government regulates human affairs and men are ruled by other men not words on paper or abstract theories. Judiciary, among all the branches of government, is the most likely to touch with the common man. The public tends to keep a tie between the law and man. A newspaper held a poll that said what the Supreme Court should do with the Speluncean Explorers? Ninety percent, those who reported back, expressed that the defendants should be pardoned. So, Justice Handy considered the defendants innocent of the allegation of murder and concluded that the conviction should be set aside.

CONCLUSION:
In my opinion personal as far as question of morality and the laws of Newgarth is concerned, law must not be put aside in order to give effect to personal morality/moral ideas. If you think your oath of office permits this indulgence of your personal morality, then show that it does. Deciding that who has the greater right to live is the hard part because all the lives are equal in eyes of law. But one cannot argue that this killing was necessary and defendants were blameless

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Decide the case under the law, support your verdict with arguments, and show the weaknesses in the arguments for the other verdict. Necessity and morality are not the possible excuses which could negate criminal intents of the murderers. So, Roger Wetmores life was as important as the other explorers that must have been respected and protected.