The Case of the Speluncean Explorers

Prepare all six questions for class.  If you’ve done the reading, it shouldn’t take long to take some notes.

In May 4299 in Newgarth, four members of the Speluncean Society – a group that explored caves – and a fifth man, Roger Whetmore were trapped underground after a landslide. Although the five did not know it, a rescue party was arranged to save them. The rescue proved difficult; one of the rescuers was killed while trying to clear the entrance to the cave.  It took 32 days to save the men, and by that time only four of them could be saved. They had carried only scant provisions into the cave, and once trapped underground only sporadic communication was possible with the outside world. However, when communication was established on the 20th day, the Speluncean explorers spoke with a physician. Whetmore, speaking on behalf of himself and the other explorers, asked the physician whether four of the trapped explorers would be able to survive for 10 more days if they ate the fifth of their number. The physician said ‘yes’.  Whetmore then asked whether the five should cast lots to determine which one should be eaten. The physician refused to answer this question. In fact, no one above ground who was involved in these communications would answer this question for them. It turned out that Whetmore’s plan to throw dice to choose the victim was accepted, but before the dice were thrown Whetmore himself withdrew from the arrangement. The others were unhappy with this, and threw the dice. When it came to Whetmore’s turn, one of the four threw the dice for him. Whetmore was asked whether he thought the throw was fair, and he said he had no objection to the fairness of the throw. The throw of the dice went against Whetmore.  The other four killed him, and ate him.

After the four remaining Speluncean explorers were saved, they had a period of recuperation and received treatment for malnutrition and shock. Discharged from hospital, all four were charged with the murder of Roger Whetmore.

The statute law of Newgarth provides: ‘Whoever shall willfully take the life of another shall be punished by death.

At trial, all four Speluncean explorers were convicted. They were sentenced to be hanged, but an appeal has come to the Supreme Court. You are a judge on the Supreme Court of Newgarth hearing the appeal in the Speluncean explorers’ case.

On the Speluncean explorers

1. The case is inspired by real case. Could you find is and  draft a case analysis

2. Looking at the reasons does each judge give for affirming or reversing the sentence of death, which judge is the objective?

On HLA Hart

3. What does Hart mean by a rule of adjudications?

4. Why are modern courts discussing rules and not morality?

*Selected Reading 2.1: Lon Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62(4) Harvard Law Review 616–645.  You may also be aware that the facts of the Speluncean explorers case are similar to those of R v Dudley and Stevens (1884) 14 QBD 273. Look at all of the judgments of the Supreme Court of Newgarth, but concentrate on the reasoning of Foster J, Keen J and Handy J.

There is an update of the Speluncean explorers case, with reference to more recent legal theories in Alex Kozinski et al, ‘The Case of the Speluncean Explorers: Revisited’ (1999) 112 Harvard Law Review 1876-923.  We are only considering Lon Fuller’s original article, as it addresses the theories we need to consider in the first part of this course.