Nominate (i) your favourite judge and (ii) your least favourite judge in LL Fuller, 'The Case of the Speluncean Explorers' (1949) 62 Harvard Law Review 616. Give reasons for your answer. Let me begin by stating that my favourite judge in LL Fuller's 'The Case of the Speluncean Explorers'1 (hereinafter referred to as Spelunceans) is Justice Keen, and my least favourite Justice Foster. Though I found intelligent, intriguing and credible points in the statements from each of the five judges, I found the opinions of Justices Foster and Keen particularly motivating.
Upon first reading the case, I was drawn to hold Justice Tatting as my least favourite judge simply for his recusal. However, I found myself agreeing with many of Tatting's points, but continually challenging Justice Foster's logic and legal values. Both Keen and Foster made numerous points which I respectively approved and rejected whilst reading the case, but I aim to draw out those which provoked the strongest reactions.
Justice Foster lay his conclusion on 'two independent grounds'2, the first being that the positive law under which the Commonwealth and Newgarth was ruled ceased to exist without the co-existance of men in society; that law exists on a territorial basis and that 'these men when they made their fateful decision were as remote from our legal order as if they had been a thousand miles beyond our boundaries. Even in a physical sense, their underground prison was separated from our courts…
3', thus bringing them subject to the 'law of nature'. I contend Foster's notion that the 'law of nature' was applied over the law of the Commonwealth on three grounds. Firstly, I see no possible way in which one might define or determine these natural laws if they were to be implemented in place of regular law – this is surely contradictory to Foster's suggestion that it is of utmost importance to understand the 'purpose' of a statute over its literal meaning4.
Secondly, it is indisputably difficult to implement the law in nature, a state where the absence of any form of structure, legal or not, meant that the explorers had to (as Foster puts it) 'draw, as it were, a new charter of government appropriate to the situation in which they found themselves'5.
Thirdly, and perhaps most importantly, if Foster's proposal that Whetmore's murder is excusable under the law of nature owing to the physical and moral expanse between the explorers and normal 'legal order', then could any man not take another outside the boundaries of 'legal order' and into nature, kill him, and argue that he is not liable for prosecution? Foster also remarked on the 'new charter of government' which was necessarily drawn up by the lost explorers. Indeed, in US v.
Holmes6, the attorney for the defence argued that 'All became their own lawgiver; for artificial distinctions cease to prevail when men are reduced to the equality of nature. Every man on board had a right to make law with his own right hand, and the law which did prevail on that awful night having been the law of necessity, and the law of nature too.. '7 Foster's second ground was that conflict arises between the literal wording of the statute and its intended purpose.
He argues that murder in self-defence is excused from the statute intended to punish homicide in the traditional sense of the word. A similar viewpoint arises in US v Holmes: David Brown, attorney for the defence, argues that the law of 'self-preservation' is just as compelling as that of the law of self-defence, saying 'what is honestly and reasonably believed to be certain death will justify self-defence to the degree requisite for excuse'. However, I strongly argue that self-defence is an entirely different act than was performed upon Whetmore.
Surely an act of occurs when there is no chance to compare the options – it is usually an automatic, involuntary reflex. I believe that Whetmore's murder, since pre-meditated, falls entirely under the requirements of the Commonwealth statute, that a murderer is he 'whoever shall wilfully take the life of another'8. There are numerous alternatives – if eventual death was so ominous, could the explorers not have waited until the weakest member of the party died before eating him?
Could they not have eaten non-essential parts of their own bodies? Though a poorer substitute, could Whetmore not have been excluded not only from the casting of lots, as he so wished9, but consequently from the whole matter, and awarded no part in the benefit gained? I believe that the weakest of Foster's ideas lies in the example of Fehler v Neegas, where the word 'not' was 'transposed from its intended position in the final and most crucial section of the act'10.
Surely the word 'not' can change the meaning of any phrase, sentence or statute to an entirely conflicting, even ridiculous, principle: 'Whoever shall wilfully take the life of another shall not be punished by death'; 'Whoever shall not wilfully take the life of another shall be punished by death'. The suggestion that the same effect ought to be carried out in Spelunceans appears entirely ludicrous, particularly due to Foster's choice of example. I believe the lines 'I know you lawyers can with ease, Twist words and meanings as you please'11 suitably sum up Foster's intent.