September 9--Speluncean II
Professor William R. Long
In class on September 7 we began our consideration of Lon Fuller's hypothetical "Case of the Speluncean Explorers." I am using this story as a means of introducing a number of jurisprudential themes in the context of a legal decision before we look at them in a more "abstract" setting (by reading some authors who articulate them). I also am using Professor D'Amato's three additional opinions, which illustrate an updated natural law theory, a utilitarian approach and, finally, a "justice" jurisprudence as espoused by Ronald Dworkin, probably the leading American jurisprude of today. This page does two things: it summarizes some points from our 9/7 discussion and it presents some issues for your consideration for 9/9.
Summary/Review
I laid out several issues relating to legal theory/jurisprudence that I thought this case considered. It looks at separation of powers issues (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. You should be able to carry a conversation on each one of these themes, illustrating the issue from the opinions of the judges. We compared the facts of the case with the Holmes and Dudley cases briefly, and I "played" with the facts of the case by asking about the legal import of various issues, such as Whetmore's withdrawal from the plan, the relationship of the doctrine of contract to what was decided.
You made several helpful statements on the issues of fairness of method of decision (arbitrary vs. "value-laden"), the issue of the court's jurisdiction assuming Justice Foster's natural law scenario (was their "contract" susceptible to judicial interpretation?) and the specific arguments of the judges. The remainder of this page will present briefly the approach of each judge. You should be able to develop this approach in at least a paragraph of writing.
The Opinions of the Justices and Issues for Class
1. Chief Justice Truepenny's legal analysis was short and pretty unhelpful, I thought. He would recommend 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 he defendants. I thought that the appeal for clemency was 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.
2. Justice Foster would acquit, and his opinion focused on two possible grounds for acquittal: natural law theory and consideration of the purpose of the statute. He lays out the theory of "ethical removal" from society which he feels this case presents, and then, in my interpretation of his opinion, says that he thinks the court is stripped of jurisdiction. We discussed his consideration of contract here, but I think he is saying that the court has no ability to judge the contract made in this "natural law" situation. When looking at the purpose of the statute, he focuses on the "spirit" rather than the "letter" of the law, and isolates two cases that confirm this approach. I think the cases are rather insubstantial and don't lend strong support to his point. He also mentions the "single purpose" of a statute. He brings forth a theory of self-defense.
3. Judge Tatting ultimately withdraws from the case because of the overwhelming dissonance he feels after thinking through the issues. He disagrees with Foster on the state of nature issue, but he agrees with Foster that there is precedential value in his theory of self-defense. But, then he has a problem. He does not see statutes as having just one purpose, and there are other explanations of self-defense stressing the importance of "non-willful" conduct. But the conspirators acted "willfully." So, that is why he is confused. He sees that both perspectives (acquittal and conviction) have equally strong arguments and he cannot decide.
4. Judge Keen is the positivist. He stresses that asking for executive clemency is improper for judges, although they may do so in their capacity as private citizens. He says 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. 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. 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.
5. Judge Handy is the judge of practical wisdom. 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). 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. I think this is a hotly debated issue in law--whether and how the courts exercise their "countermajoritarian" power.
6. Judge Wun, Professor D'Amato's first hypothetical judge, would consider the morality of the act and then the legality of it. He is of the opinion, as are natural law theorists, of the ultimate coherence of law and morality, but he wants to investigate the act from the perspective of morality and then the statute. He would maintain that it is legimate for Whetmore to withdraw. He gives an interesting hypothetical or two regarding joint action at the expense of another. The necessity defense (rather than self-defense) is examined and found wanting. The purpose of the law is to protect those who cannot protect themselves; therefore, the defendants are guilty.
7. Judge Tieu would hold them innocent and base her theory on the fact that the overriding reality at issue is that they are in a group. I think her story of warning behavior and leadership phenomena are crucial to her understanding of the roles people play in groups. The purpose of the group is to survive. If one member needs to be sacrificed for the sake of the group, so be it.
8. Finally, Judge Thri (who ever heard of a court with 8 Justices??) would dismiss Judge Tieu's approach becuase it is discredited "utilitarianism." His criticism of that theory is that it holds to the tyranny of the majority. But, there is a good point in Judge Tieu's emphasis on the group. He could withdraw from the plan, because a joint venture does not imply a participation to the point of a death. Finally, there is no way to keep Whetmore from taking his chunk of flesh from the other sacrificed individual, since he would have the necessity defense.
I hope you enjoyed our two days on this hypothetical. Now, on to Plato!
Copyright © 2004-2007 William R. Long
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