As I thought more about this case "My mind became entangled in the meshes of the very nets I threw out for my own rescue"1 to use the words of Tatting in his Judgment. The imaginary case of the Speluncean explores by Lon Fuller raises fundamental questions about the relationship between law and government and the role of law and legal reasoning. Legal reasoning is paramount in this case. The five judgements each represent a different position on the forms and limits of law and legal reasoning as well as posing a sensitive ethical problem in a legal pretext.
The Facts Five members of the Speluncean society after entering a cave become trapped due to a landslide. After waiting days they finally make contact over the radio with the outside world. The rescue team is still days away, the five companions decide that the only way they can survive is to eat one of their number. Roger Whetmore a member of the group suggests that dice should be used to determine who the unfortunate sole should be. The group all seems to be in agreement. Whetmore changes his mind before the dice are rolled however, but the rest disregard his wishes and cast the dice for him.
The role goes against Whetmore and they kill and then consume him. Following this they are rescued charged with murder and convicted. It is here where we enter Fullers case to hear five Judges decide whether or not the conviction should stand. The Judges Decisions It is the Chief Justice Truepenny that first gives his Judgement. He adopts the very literal meaning of the statute itself "Whoever shall take the life of another shall be punished by death"2. There are no permitted exceptions applicable to this case. Thus since the rule is clear enough in his opinion and his duty as a Judge is equally as clear, he upholds the conviction.
Foster J. disagrees with Truepenny for two main reasons. Firstly the men found themselves in a "state of nature" were they devised their own rules to survive, to which all had agreed3. Secondly Foster applies the purposive approach that "Every rule of law must be interpreted reasonably in the light of its evident purpose"4 in this case he states that it was never the purpose of the statute to punish those who he believes killed in "self-defence". Thus he rules against the conviction. Judge Tatting finds both of the previous judgments unpersuasive.
However he is unable to come to a conclusion and subsequently withdraws. Keen also disagrees with Foster's use of the purposive interpretation of the law. He believes this is merely a means of avoiding the written rule of the law. Instead he suggests that Judges cannot possible be able to determine what the legislation intended when the law was drafted but must strive to decide these "hard" cases. Thus he rules in favour of the conviction. Handy J gives the final opinion. He suggests "men are ruled not by words on paper or by abstract theories, but by other men".
Handy brings to the court's attention that 90% of the public think that the defendants should be pardoned. He accepts that his fellow judges will be appalled by his suggestion of listing to public opinion however he states that "good rules must ensure that they are in time with the feelings of the people"5. Handy also believes that this is simplest of cases and that common sense can easily solve this. Thus he agrees the conviction should be set aside. Formal Justice and Equal Treatment Both Truepenny and Keen advocate the use of formalism which has its advantages.
If the court methodically applies it, then it will reinforce the idea of the impersonal nature of the law, as all persons would be treated the same in all cases where the laws are the same "like cases being treated alike". In effect this would strengthen the principle of equal treatment before the law. Thus by reducing the possibility of bias or political sway in its application. Subsequently it may lead to a level of "predictability" and develop "accountability" and "simplicity"6 states Loughlin in essence "formal justice".
Aristotle stated the law was "Universal"7, however he also drew attention to the fact that "there are something's…about which it is not possible to pronounce rightly in general terms"8. He suggested that the error in universal law lied "not in the law nor in the legislator but in the nature of the case"9. Essentially human actions are often too complicated and incalculable to be covered by any general rule especially if the facts are inconceivable. Aristotle suggested that if a "general rule is created and then a case arises under this rule that is exceptional then it is right … to correct the omission by a ruling such as the legislator himself would have done given if …he had been aware of the circumstances. "
Foster also suggests that "there are some cases that no law can be framed to cover"11. I agree that not all law can fit the situation in which it is trying to be applied. Thus I cannot consent with Truepenny's judgment as the circumstances in which these men found themselves could not possible have been conceived of at the time the legislature drafted the law. Principle v Policy Another aspect to legal reasoning is the battle between principle and policy.
Dworkin describes principle as concerned with individual rights, "a standard that is to be observed…because it is a requirement of justice". Policy on the other hand is a "kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the community". Thus it is Dworkin who suggests, "judicial decisions… in hard cases, characteristically are and should be generated by principles not policy"12. Keen describes this case as being "hard". After he dismisses Foster's approach he argues to decide this "hard" case differently would be an affront to the law and to the "supremacy of the legislature"13.
In effect he is worrying about opening the "flood gates" and thus causing damage to the law "in the long run"14. This is clearly a policy decision towards some "collective social good"15. I cannot agree with this decision as it is not at all concerned with the individual rights of the men on charge. Rights as Dworkin puts it are "trump cards" that an individual can and should be able to "play against the state" to stop them from doing something. They are inalienable and it is wrong for the state to deny it even if a large group of people would benefit from this denial.