The Case of the Speluncean Explorers
The Case of the Speluncean Explorers is a hypothetical legal case described in a 1949 Harvard Law Review article by Lon L. Fuller. It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300.
The hypothetical involves five cave explorers who are caved in following a landslide. They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued. The cavers subsequently decide to kill and eat one of their number in order to survive. After the four survivors are rescued, they are indicted for the murder of the fifth member. The prescribed penalty is capital punishment. Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.
Fuller's account has been described as "a classic in jurisprudence" and "a microcosm of [the 20th] century's debates" in legal philosophy, as it allowed a contrast to be drawn between different judicial approaches to resolving controversies of law, including natural law and legal positivism.
The facts of the case are recounted in the first judicial opinion, which is given by Chief Justice Truepenny.
Five cave explorers become trapped inside a cave following a landslide. They have limited food supplies and no sources of nutrition inside the cave. Substantial resources are spent to undertake a rescue, with 10 workmen killed in subsequent landslides near the blocked entrance. Radio contact is eventually established with the cavers on the 20th day of the cave-in, and the cavers learn that another 10 days would be required in order to free them. They then consult with medical experts, who inform them that they are unlikely to survive to the rescue given the likelihood of starvation.
One of the cavers, Roger Whetmore, then asks on the cavers' behalf if the cavers could survive 10 days longer "if they consumed the flesh of one of their number". The medical experts reluctantly confirm this to be the case. Whetmore then asks if they should draw lots to select a person to be killed and eaten. No one outside the cave is willing to answer this question. Radio contact is subsequently lost.
Once the cave-in is cleared, it is discovered that only four cavers have survived; Roger Whetmore had been killed and eaten by the others. The survivors state that Whetmore had originally come up with the ideas of cannibalism and choosing the victim through random chance, offering a pair of dice in his possession.
Before the dice are cast, Whetmore allegedly expresses a wish to withdraw from the arrangement, preferring to wait another week "before embracing an expedient so frightful and odious". The others refuse to accept his change of mind, and cast the dice on his behalf. The survivors claim that Whetmore conceded that the dice were thrown fairly. He is subsequently killed and eaten.
Following their rescue and recovery, the survivors are charged with the murder of Whetmore. The relevant statute provides that "Whoever shall willfully take the life of another shall be punished by death", offering no exceptions which would be relevant to the case. The jury seek a special verdict, so that they can make limited findings of fact without having to return a verdict on whether it constitutes murder. The cavers are ultimately convicted of murder.
The mandatory sentence for murder in Newgarth is death by hanging. Both the trial judge and members of the jury petition the Chief Executive to commute the sentence of the surviving spelunkers from the death penalty to six months' imprisonment. The Chief Executive refuses to act while the Supreme Court of Newgarth considers the appeal.
|Chief Justice Truepenny||
Affirms convictions but recommends clemency
||Sets aside convictions|
||Withdraws from case and makes no decision|
||Sets aside convictions|
Chief Justice Truepenny
The first opinion largely recounts the facts of the case. The Chief Justice notes that the statute is unambiguous and that it must be applied by the Court. He adds that the decision whether to grant mercy is for the executive rather than the judiciary.
- R v Dudley and Stephens, an actual English criminal case from 1884 involving cannibalism at sea
- The William Brown was a ship whose sinking led to several passengers being forced out of an overcrowded lifeboat to save the remaining passengers. It led to the case of United States v. Holmes, in which crewman Alexander Holmes was charged with murder and convicted of manslaughter for his actions.
- D'Amato 1980, p. 467
- Eskridge Jr. 1993, p. 467
- Fuller 1949, p. 1851
- Fuller 1949, p. 1853
- Fuller 1949, p. 1853
- Fuller 1949, p. 1854
- Cahn, Naomi; Calmore, John; Coombs, Mary; Greene, Dwight; Miller, Geoffrey; Paul, Jeremy; Stein, Laura (1993). "The Case of the Speluncean Explorers: Contemporary Proceedings". George Washington Law Review 61: 1754–1811.
- D'Amato, Anthony (1980). "The Speluncean Explorers - Further Proceedings". Stanford Law Review 32: 467–485. doi:10.2307/1228393. JSTOR 1228393.
- Easterbrook, Frank H. (1999). "The Case of the Speluncean Explorers: Revisited". Harvard Law Review 112: 1834–1917.
- Eskridge Jr., William N. (1993). "Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell". Washington Law Review 61: 1731–1753.
- Fuller, Lon L. (1949). "The Case of the Speluncean Explorers". Harvard Law Review (The Harvard Law Review Association) 62 (4): 616–645. doi:10.2307/1336025. JSTOR 1336025.
- Allan, James (1994). "A Post-Speluncean Dialogue". Journal of Legal Education 44: 519–530.
- Allan, James (1998). The Speluncean Case: Making Jurisprudence Seriously Enjoyable. Chicester: Barry Rose Law Publishers.
- Suber, Peter (1998). The Case of the Speluncean Explorers: Nine New Opinions. London: Routledge.
- Butler, Paul; Dershowitz, Alan; Easterbrook, Frank; Kozinski, Alex; Sunstein, Cass; West, Robin. "The Case of the Speluncean Explorers Revisited". Harvard Law Review 112: 1876–1923. doi:10.2307/1342398. JSTOR 1342398.
- An electronic reprint of Fuller's original article.
- Another electronic reprint, with page citations.
- "The Case of the Speluncean Explorers: Nine New Opinions", a book by Peter Suber (Routledge, 1998), containing Fuller's five original opinions on the case and Suber's nine new ones.
- Eskridge, William N. Jr., "The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell" (1993). Faculty Scholarship Series. Paper 3839. http://digitalcommons.law.yale.edu/fss_papers/3839
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