The nature of law and relationship which exist with morality

Critically discuss the various philosophies which underpin the judgments presented in the case and the conflicting perspectives on the nature of law and relationship which exist with morality. This discussion is inspired by the fictitious case of “The Speluncean Explorers” by Lon Fuller[1]. In his allegorical work Fuller provided five[2] Supreme Court judgments, through whom he could state his case. Using the judgments, Fuller aims to explore different legal and philosophical principles, and to use this as a foundation for exploring the relationship between each.

The aim of this narrative is to critically discuss the various philosophies which underpin the judgments presented and the conflicting nature of those perspectives. It is necessary to provide a brief summary of the facts of the case to assist the uninitiated reader to understand the further discussion found here. During a routine cave exploration, five explorers (known as Spelunkers in the fictitious native-tongue) become trapped due to a landslide. There were no sources of nutrition to be found inside the cave and food supplies were very scant.

They make radio contact with a rescue team that has been sent to recover them. The rescuers estimate that the removal of the debris over the entrance of the cave will take at least another ten days. The trapped men also talk with physicians who convey their concern that the trapped men may not last another ten days without food. When rescued, only four men emerge. They concede that they held a ‘lottery’ (using dice one of the explorers had in his possession), killed the loser and ate him (The loser’s identity was given as Whetmore).

On release they are charged with murder, which carries a mandatory death sentence according to established statute. The majority of commentators on this fictitious case find very similar philosophical legal principles. In her 2012 blog article[3] for ‘legalese’, Lawyer Kavita Jitani proposes that legal positivism, literal meaning, purposive construction and natural law are all present in the judgments reached. In Peter Subers book[4] he references positivism and natural law throughout the book.

Indeed, if we look to the author himself we find that, throughout his career, he was often regarded as a staunch critic of legal positivism and argued In favor of a limited form of natural law. Looking at the case it becomes apparent that the views of the judges can be set out as follows: As we can see above, there are various legal philosophies at ‘loggerheads’. This is almost certainly Fullers intention behind this case.

At a fundamental level the Natural Law competes against its established opponent, legal positivism, therefore, and for the sake of brevity and conciseness I have focused on the conflicting perspectives of both these opposing views. Natural law seeks to connect morality and the law and it could be said that they are ‘one and the same’. With natural law theory there is a belief that our morals come from our very nature and therefore what is right or wrong cannot be defined by a government or a monarch. Our steer is provided by what we, as humans, feel is necessary to live a positive, happy, good existence.

By extension therefore, in natural law theory, a law that doesn’t provide sound judgment, should not be followed. In the case of the explorers, Justice Foster argues that the Statutes of Newgarth do not apply in this case as the explorers were not ‘in a “state of civil society” but in a “state of nature”[5] ’. Critics of this approach (in this case Justice Tatting) often argue that its reliance on theological or metaphysical belief call into question its ability to be applied plausibly or rationally. Legal Positivism on the other hand takes the opposing view.

, A legal positivist, can acknowledge that the law can be floored in its construction, but it still remains the law and, by extension, should be applied regardless. Chief Justice Truepenny and, to a lesser extent, Justice Keen are seen to favor this approach. Truepenny in his literal interpretation of the statute and Keen in his view that, moral considerations, cannot influence the case. In summary, it is clear that there are two opposing schools of philosophical thought in Law, namely natural law and legal positivism.

In his seminal work, Fuller appears to provide the reader with the opportunity to consider why the law exists, but also, in offering us five hypothetical opinions he demonstrates the varied and inconsistent way in which the law can be approached. It is by no accident that the final fate of the men is not broached. In not finishing the storey, Fuller keeps us engaged long after we have stopped reading, making us ruminate and reflect on each of the judges views and perhaps consider which of the 'two schools' of thought, we might fit into.