About the book
The Case of the Speluncean Explorers: Nine New Opinions. Routledge, 1998. Reprinted, 2002.
The book uses a famous fictitious legal case to illustrate nine contemporary philosophies of law. It presupposes no knowledge of law or philosophy of law, and should be a painless, even enjoyable introduction to legal philosophy.
The famous fictitious legal case was created by Lon Fuller in his article, "The Case of the Speluncean Explorers," Harvard Law Review, vol. 62, no. 4 (1949) pp. 616-645. The case tells the story of a group of spelunkers (cave-explorers) in the Commonwealth of Newgarth, trapped in a cave by a landslide. As they approach the point of starvation, they make radio contact with the rescue team. Engineers on the team estimate that the rescue will take another 10 days. The men describe their physical condition to physicians at the rescue camp and ask whether they can survive another 10 days without food. The physicians think this very unlikely. Then the spelunkers ask whether they could survive another 10 days if they killed and ate a member of their party. The physicians reluctantly answer that they would. Finally, the men ask whether they ought to hold a lottery to determine whom to kill and eat. No one at the rescue camp is willing to answer this question. The men turn off their radio, and some time later hold a lottery, kill the loser, and eat him. When they are rescued, they are prosecuted for murder, which in Newgarth carries a mandatory death penalty. Are they guilty? Should they be executed?
Fuller wrote five Supreme Court opinions on the case which explore the facts from the perspectives of profoundly different legal principles. The result is a focused and concrete illustration of the range of Anglo-American legal philosophy at mid-century. My nine new opinions attempt to bring this picture up to date with our own more diverse and turbulent jurisprudence half a century later.
My contract with Routledge prevents me from putting the text of the book on the web. However, I have put the Preface and Introduction online, and over time I may put more auxiliary content on this web site than I have now.
Ordering the book
You can buy the book from Amazon.com in paperback or hardback.
Errata in the first edition
- Page v, line 2, for "May" read "Mary"
- Page 40, line 29, for "with with" read "with"
- Page 48, line 19, for "New York" read "New New York"
- Page 51, line 11, for "and are exercising" read "exercising"
- Page 60, line 19, for "signd the second contract" read "signed the social contract"
- Page 60, line 34, for "in any." read "in any case."
- Page 66, line 7, for "would know" read "could know"
- Page 90, line 6, for "when it is disguised" read "when disguised"
- Page 96, bottom line, for "prevents them thinking" read "prevents them from thinking"
- Page 97, line 3, for "Commonwealth and Valjean" read "Commonwealth v. Valjean"
All of these have been corrected in the August 2002 reprint. If you think you have found other errata, I would be grateful if you'd drop me a line. Please let me know which edition you're using.
Timeline of the events in the cave
The timeline is more subtle than it might appear on first reading Justice Truepenny's statement of the facts. I've sorted it out here for those who are interested. But for those who aren't, let me assure you that you may skip this section with impunity. These subtleties are not material to the holding on virtually any theory of the facts or law.
Day 0. The men enter the cave.
Day x. The landslide occurs.
- We are never told how many days after Day 0 this occurs. However, we can deduce that it is at most 3. See the notes below.
Day x + 20. Radio contact is established (p. 7, line 31).
Day 23. The men hold the lottery and kill Whetmore (p. 8, line 27). Note that this is Day 23, not Day x + 23.
- Whetmore would have waited another week to hold the lottery (p. 8, line 40).
- To know just how long the men had gone without food at the time of the lottery and killing, we'd have to know both (1) the value of x and (2) how long it took them after Day 0 to exhaust the provisions they carried in with them. Unfortunately we don't know either of these key facts, but see the notes below.
Day x + 30. Earliest estimated rescue date (p. 8, line 5).
- On Day x + 20 (p. 7, line 31), the engineers predicted at least a 10 day rescue (p. 8, line 5).
- The doctors predicted that the men could live at least to this day if they ate one of their companions (p. 8, line 17), and would almost certainly not live to this day without some additional food (p. 8, line 11).
Notes on the timeline.
- Radio contact is established on Day x + 20, and Whetmore is killed on Day 23 (not Day x + 23). If x were greater than 3, then the radio contact would have occurred after the killing, which we know is false. Hence x must be less than or equal to 3.
- If x = 0, the minimum, then the rescue was two days slower than the engineers predicted (12 days rather than 10). If x = 3, the maximum, then the rescue was one day faster than predicted (9 days rather than 10). Either way, the men were rescued 9 days after the killing.
- Another way to put this: Assume that the doctors were right that from the day of radio contact the men could not have lived 10 more days without food, and assume that the men had not killed a companion to eat. If x = 0, then the men would have starved to death before being rescued, but if x = 3, then they would have been rescued before starving to death.
- Is there any textual evidence to help us decide whether x is 0, 1, 2, or 3? I don't see anything explicit. But here's a possibility. On the day of the killing, Day 23, Whetmore wanted to wait another week before killing anyone. Why a week exactly, especially if they were already close to death by starvation? If x = 0, then the predicted date of rescue (Day x + 30) would be exactly one week from the date on which Whetmore wanted to wait a week. By contrast, if x = 3, then waiting a week would still put them three days short of the predicted date of rescue. Hence, if Whetmore picked a week thinking of the predicted rescue, then that suggests that x = 0.
Other new opinions on the case
I am not the first to write new opinions on the Case of the Speluncean Explorers. Here are the other published opinions that I know of, in chronological order. If you know of any others, please drop me a line.
- Anthony D'Amato wrote three new opinions for the Stanford Law Review, vol. 32 (1980) pp. 467-85.
- Naomi Cahn, John Calmore, Mary Coombs, Dwight Greene, Geoffrey Miller, Jeremy Paul, and Laura Stein wrote one opinion each for the George Washington Law Review, vol. 61 (1993) pp. 1754-1811.
- Paul Butler, Alan Dershowitz, Frank Easterbrook, Alex Kozinski, Cass Sunstein, and Robin West wrote one opinion each for the Harvard Law Review, vol. 112 (1999) pp. 1834-1923. David Shapiro wrote an introduction to the collection of new opinions.
- My book came out in November of 1998. I wasn't able to see any of these six opinions and, due to the lag time between journal submissions and publication, I assume that these scholars were not able to see my book.
Assignment ideas for teachers
The classic, basic assignment is to decide the case. Come to a verdict and support your verdict with argument. Are the spelunkers guilty of murder or not? There are only two possibilities, guilty and not guilty, so don't get too creative. Or rather, save your creativity for your argument. Inventing a third verdict does not take the constraints of law seriously and would make the case both easier and less interesting.
Variations on the law
Here are some variations on the basic assignment, in roughly increasing order of difficulty and sophistication.
- Decide the case morally, not legally. Ignore the law. Did these men do anything wrong? Or decide the case under the law as it ought to be, not under the law as it is.
- Variation. Once you decide the morality of the case, how can we make the law reflect this morality better? How should we change the law to make clear that this sort of act is (or is not) murder?
- Decide the case under the law of the Commonwealth of Newgarth. This includes at least the murder statute and the precedents. Does "the law" include anything else? That's for you to decide.
- Assume that you are a Newgarth Supreme Court Justice who has taken an oath to uphold and apply the laws of the Commonwealth of Newgarth.
- If you feel a tension between your personal morality and the laws of Newgarth, then don't put the law aside in order to give effect to your moral convictions unless you think a good judge would do so. If you think your oath of office permits this indulgence of your personal morality, then show that it does.
- Focus on supporting your verdict with strong arguments, not on undermining the arguments for the opposite verdict (although that comes in another variation below).
- Decide the case under the law, support your verdict with arguments, and show the weaknesses in the arguments for the other verdict.
- There are many arguments on both sides, so there will be much work to do no matter which verdict you chose. However, if time is tight, simplify as follows. If you vote guilty, then how do you answer the necessity defense? If you vote not guilty, how do you interpret the statute?
- If you acquit, can you rebut the arguments of each judge who voted to convict? If you convict, can you rebut the arguments of each judge who voted to acquit?
- Decide the case under the law of the state where you live.
- At first consult the murder statute where you live and forget the cases interpreting it. The statute probably contains degrees of murder and homicide, standard defenses (excuses and justifications), and some sentencing discretion for the judge. All these departures from the Newgarth situation give you room to explore issues you didn't have to explore when you used Newgarth law.
- If you have time and ambition, also use the case law of your jurisdiction.
- This version of the assignment is difficult insofar as it requires legal research outside Fuller's essay. But it is easier than some of the variations above because it doesn't force you to pick from a narrow range of options and justify your difficult selection.
- If you have read other cases on necessity, self-defense, or murder, assume that they are binding precedents in Newgarth. Take the force of those that are most applicable, distinguish those that are least applicable.
On September 27, 2001, President George W. Bush authorized the U.S. Air Force to shoot down commercial airliners containing passengers if the airliners (1) appear to threaten cities, (2) refuse to change their course, and (3) there is no time to contact the president for specific orders. Two weeks earlier, of course, terrorists hijacked four commercial airliners containing passengers and deliberately crashed three of them into buildings in New York and Washington, killing more than 3,000 people. See this Washington Post story for more detail on President Bush's decision to authorize what Justice Tally might call the preventive killing of innocents.
Imagine that the President of Newgarth had made a similar decision and imagine that it had been challenged in court.
- How would you decide the President's case in light of your decision in the case of the speluncean explorers?
- Assume that the President of Newgarth won her case and the ruling was available as a precedent. What would it imply for the case of the speluncean explorers?
Variations on the facts
Decide the case under the real facts, as described by Chief Justice Truepenny, or decide it under one of the what-if scenarios below.
- What if the men had not used a lottery but killed Whetmore because he was the only one with no family, or the only one who believed in an afterlife? (This variation was suggested by Justice Foster.)
- What if Whetmore had not revoked his consent, but was the willing victim based on the result of the lottery?
- What if Whetmore had not said that the dice throw made on his behalf was a fair one?
- What if Whetmore had tried to defend himself but the survivors had succeeded in killing him anyway?
- What if Whetmore had defended himself by killing (say) Smith? As a result, the party ate Smith instead of Whetmore. (For this to work, we must suppose that Whetmore, at least, was prosecuted for murdering Smith.)
- What if a Newgarth judge had been on the scene at the rescue camp and had told the spelunkers by radio that the act they were contemplating would be considered murder under Newgarth law?
- What if the judge on the scene had said that the killing would not be considered murder?
- What if a priest instead of a judge had given an opinion by radio? (You decide what the priest would have said.)
- What if the men had brought much more food into the cave with them, and survived much longer on it, but still had the same radio conversation with the outside world about their prospects for survival?
- What if Whetmore was clearly the one who would have died first of natural causes? What if he clearly was not?
- What if the men were rescued earlier than the engineers predicted? What if later? (Fuller doesn't give us the facts to decide this question; see the timeline above.)
- What if no one had died in the rescue attempt?
- What if the rescue party were financed entirely by the Speluncean Club, with no funds from the Commonwealth of Newgarth?
- What if Newgarth did not trace the authority of its laws back to a social contract?
- What if Newgarth had no history of civil war inspired by judicial usurpation of the legislative functions?
- What if the exception for self-defense were not an ancient judicial invention, but an express part of the murder statute as written by the legislature?
- What if the men were not trapped in a cave, but in a collapsed building after an earthquake? What if they were not spelunkers pursuing a risky sport, but workers at work?
- What if at the time of the killing the batteries in the spelunkers' radio were actually dead? (See Justice Bond's opinion for the possible relevance of this fact.)
Variations in format
Decide the case or explore the issues in one of the following ways.
- Write a judicial opinion. Imagine that you have taken an oath to uphold the laws of Newgarth. Don't appeal to your personal morality unless the law and your oath allow you to do so. In my view, this is the best first assignment on the case, especially if the various judges (students in the course) can compare their views and discuss their differences before and after they write their opinions.
- Variation. Write such a judicial opinion at the beginning of the semester. Then write another near the end of the semester. After the second one is turned in, discuss how the material in the course made you a better judge better able to deal with the difficulties of this hard case.
- As you read new legal philosophers during the course, pause to ask (among other discussion questions) how he/she would decide the case. What considerations would he/she add to our deliberations that we haven't seen before?
- Hold a discussion in which the group takes on the role of a committee of district attorneys (prosecutors) deciding whether to prosecute the spelunkers for murder.
- Hold a discussion in which the group takes on the role of the jury. Hence your job is to reach consensus, if you can. You are not bound by the constraints that bind judges and you have the power, if not also the right, of nullification.
- Hold a discussion on the seven precedents concocted by Fuller (Staymore, Fehler, the ancient and nameless precedent creating the exception for self-defense, Parry, Scape, Makeover, and Valjean). Taking each precedent in turn, ask whether it supports the defense more than the prosecution, or vice versa. How would the other side distinguish it, if it could? How do all the precedents, taken together, affect your judgment?
- Hold a discussion on the written opinions rather than on the facts and law directly. Which Justice deals most sensitively with the statute and precedents? Which Justice best lives up to the oath of office? Which Justice has the most persuasive opinion?
- Variation. Break a class into small groups and have each group try to reach consensus on each of these three questions. Groups that cannot do so before the hour is up should vote. Bring the names of the 'winning' Justices to the next class for a plenary discussion.
- Pick one of the factual variations from the section above. After discussion, have the group vote on it. Regard that vote as a precedent for the next variation. After you have a handful of new precedents in this way, return to the original facts. How do the new precedents affect your judgment?
- Assume that the Supreme Court divided, as Fuller showed. The jury verdict stands and the men are soon to be hanged. Hold a discussion in which the group takes on the role of a panel established to advise the executive on whether to grant clemency. (This variation was used by Anthony D'Amato in his Stanford Law Review article, vol. 32, 1980, pp. 467-485.)
- Assume that the Supreme Court divided and the defendants were hanged. Since 90% of the public favored acquittal or clemency, members of the Newgarth Parliament are feeling pressure to amend or replace the murder statute. Hold a discussion in which the group takes on the role of the legislative sub-committee charged with drafting the new statute. There are at least three issues: (1) What sort of intent or mens rea should we require for murder? (2) What defenses (excuses and justification) to the charge of murder should we recognize? and (3) What punishments other than death should we allow?
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