This is a blogging experiment. I’m teaching Jurisprudence to undergraduate law students this semester for the first time (although I’ve long been interested in legal theory). One of the early tutorial exercises I’ve set for my students arises from a very famous 1949 article/hypothetical legal decision by natural law theorist Lon L. Fuller known as The Case of the Speluncean Explorers. It involves a group of cavers who get trapped by a landslide, are forced(?) to kill and eat one of their number to survive, and are then placed on trial for murder. The article consists of the reasons for decision of each of the 5 Justices of the Supreme Court of the mythical nation of Newgarth. In effect the judgments explore the nature of law and various theories of law from diverse perspectives. Here are the questions I posed to the students:
Summarise the key reasoning of at least one of the 5 judgments. Does the judge identifiably adopt any clear jurisprudential approach to the nature of law or adjudication e.g. natural law, legal positivism, legal realism, legal formalism? Which approach do you think best exemplifies what the law (or approach to deciding the law) should be? Why?
How would these approaches be applied to a situation where a US Air Force pilot was on trial for murder for shooting down one of the hijacked airliners on September 11 2001 to prevent it from being flown into the World Trade Center tower and killling thousands more people?
In preparing for this discussion, you may wish to familiarise yourselves with utilitarian philosophical approaches (both “act utilitarianism” and “rule utilitarianism”). The extracts from Jeremy Bentham’s writings starting at page 221 of the prescribed text are worth reading in this respect, but so too is the Wikipedia article on utilitarianism.
Now I don’t imagine any of Troppo‘s readers would be terribly interested in an arid discussion about academic theories of analytical jurisprudence, but some of you might be interested in reading the judgments and considering on a first principles basis which approach most closely approximates the way you think the law should work (be conceived). The connection (if any) between law and morality is obviously a central conundrum raised by the Speluncean Explorers fact situation. Are judges just there to apply the letter of the law irrespective of subjective fairness, practical necessity or their own notions of morality? To what extent can they properly shape, adapt and interpret the law without being validly accused of excessive “judicial activism” or usurping the role of Parliament? One of the reasons why I decided to post this item was in response to Yobbo’s mention of the Timothy Nam case in another comment thread.
Thanks for the post Ken. Interesting. If I get the time I’ll have a look. Regarding the law and morality, it’s not really on topic regarding straight jurisprudence, from what I gathered it was more on legal procedure, but if you don’t know of Thane Rosenbaum you should. I didn’t, but he was on Late Night Live last night and gave an excellent account of himself, and now I do. Your students should be interested.
I love this hypothetical. If I get time I’ll read it again and answer your question about which judgment I prefer.
Nice hypothetical of your own, too, Ken.
Perhaps you can answer this for me Ken:
If the police know that a defendant has a legitimate defense for a crime, as Nam did in having a ready-made claim of “Self-Defense”, are they required to prosecute him anyway and force him to present that defense, or can they choose not to prosecute at all?
It looks to me in the Nam case that Nam either got bad advice to plead guilty or chose not to contest the charge as a matter of principle.
If the police are required to prosecute no matter what then that is a failing of our legal system. If they are not required to and prosecuted Nam anyway, then they are the real criminals in this case as far as I am concerned.
Fortunately I’m not a lawyer or a law student, but something jumps out of the second paragraph of the block quote.
Who was the good guy who made sure the US Air Force was stood down, or out of the country on exercises, safely out of harm’s way on the day.
When I was a child the Law seemed to be regarded as a frightening inconvenience by adults around me, and a lawyer’s job was to get them out of trouble. The police were something like the Chips Raffety character in “Wake in Fright”. They had a casual utilitarian approach to their job. Things have come a long way since then.
The Speluncian explorers should not have killed one of their own. I have heard that desperate escapees from the Russian gulag would recrute a naive “cow” for the purpose of killing and eating him. The victim made a bad choice, the Judge is right to convict the perpetrators for murder.
Law and the US Military is such an arbitary, vexed question these days. I guess it depends on his rank.
Connected, legally, to Armin Meiwes the German guy who ate a willing recruit?
Not me, I know nothing, I wasn’t there and anyway you don’t have my IP.
FX
When I turn up to the next Melbourne blog meet with a bottle of soy sauce, be very nervous.
I was suspicious of that soy last time all along.
btw, I’ve just been to the link. Feel free to issue an abridged version, but I’m not reading 12,000 words to do the exercise. 3,000 I’d come at. But will be interesting to see how it goes. Perhaps I’ll see some quotes that others put up in arguments and get roped in.
Very witty, Mr Parish, to withold the interesting stuff until after I quit studying law.
By my reckoning:
Truepenny CJ is the positivist;
Foster J is the natural legalist (bit of a gimme actually);
Tatting J is lost but gives naturalism a good kicking;
Keen J is a cut-n-dried formalist (a Dixonian legalist in Australian terms, I think); and
Handy J is a legal realist.
Hopefully I get a pat on the head and a biscuit for my sterling effort.
It’s an excellent read, by the way. Smashing stuff.
I wonder if the five judges don’t symbolically represent the five men in the cave. Like Whetmore, Tatting has big ideas but then bails. He deserves to be eaten. Truepenny tucks in – which is to say, puts legal scruples aside – without too many doubts. Foster bangs on in a pre-dinner speech about how justified they are in slitting the law’s throat, as his fellows grow hungry. The portable wireless, if nothing else, makes nonsense of his claim to be morally in puris naturalibus. Keen behaves with honour and will have no part of it. He awaits rescue with the stoicism of Russell and Webb. Handy is worried what people might think. Regardless, he concludes the mob has sympathy for those who would cannibalise the statute to keep their personal prejudices alive. Sadly, none of the brothers spoke of the melancholy elephant in the cave: the law has no right to sentence the Speluncean Four to death. It is a law that contradicts itself.