This preface and introduction originally appeared in The Case of the Speluncean Explorers: Nine New Opinions, Routledge, 1998. I don't have Routledge's permission to put the whole text online, but I do have permission to put these excerpts online. Copyright © 1998, Peter Suber.
Nine New Opinions
Lon Fuller's Case of the Speluncean Explorers is the greatest fictitious legal case of all time. That is saying a lot, for it has some stiff competition. While its competitors may outdo it in courtroom drama, character development, or investigative suspense, none matches it in legal depth or dialectical agility. It doesn't show what makes some lawyer's caseload interesting, but what makes law itself interesting. It would not make a good movie; it is all "talking heads." In fact, the parts that would make a good movie —the events within the cave— are over and done with by the time Fuller begins his piece. Moreover, these events are not depicted with cinematic vivacity, but described after the fact with judicial precision and blandness.
Fuller's five Supreme Court justices tranquilly but rigorously show the complexity of the facts and the flexibility of legal reasoning. The five opinions focus on different factual details and legal precedents, and fit them into different background structures of legal and political principle. By these means Fuller crystallizes important conflicts of principle and illustrates the major schools of legal philosophy in his day. Fuller's case has been called "a classic in jurisprudence," "a microcosm of this century's debates," and a "breathtaking intellectual accomplishment."[Note 1]
Although only half a century separates us from the date of Fuller's essay, the legal landscape has changed profoundly. I have written nine new judicial opinions on his case, with roughly Fuller's own objectives in view, hoping to explore important issues of principle and in the process to bring the depiction of legal philosophy up to date.
While I would like to depict the major schools of legal philosophy today, giving each its due, there are a few obstacles that subtly constrain the project. First, I must stick to the facts and law of this case. I cannot illustrate a contemporary legal philosophy using its own favorite examples, but must discover how it would approach the case of the speluncean explorers. Fortunately most of the major contemporary movements in jurisprudence can find a foothold in these facts, which we may take as one small symptom of their depth and generality.
Second, I would like to say something new about the case. Before I began to write these opinions, I unreflectively assumed that Fuller's five justices had already offered just about every plausible legal argument that could be brought to bear on these facts. But once I gave myself the assignment, some resolute, quasi-speluncean exploration persuaded me that I had been mistaken. Now I have nearly the opposite conviction: to say that serious thinking about this case has been exhausted is to say that serious thinking about law, adjudication, crime, homicide, punishment, excuse, justification, and justice have been exhausted.
Third, I cannot have more than nine opinions. More would begin to strain credibility and tire even the generous reader of good will. The bad news is that there are far more than nine important movements and strands of contemporary legal thought. The good news is that they are not all incompatible. I could not embody every distinct strand of contemporary thought in a distinct opinion; and I did not want to limit myself to just nine positions. So I have blended perspectives when consistency and plausibility allowed. This meant, in turn, that the purity of individual opinions could not be a constraint.
Finally, I felt the same tug that Fuller must have felt to arrange for a tie vote —the tug of pedagogical neutrality, requiring that I place the burden of decision squarely on the reader. The odd number of judges is only one obstacle here. Some movements in contemporary jurisprudence naturally pull toward acquittal, and some toward conviction. If I find more of one kind than another, then I must combine some of the 'majority' opinions, or multiply some of the 'minority' views, or dig more deeply for other veins of contemporary thought.
At times I also felt constrained not to invent new facts about the history of Newgarth, and to play within the four corners of the playground I inherited from Fuller. But at other times I felt that to play this game in Lon Fuller's spirit I was entitled to a few liberties. I have kept my own inventions to a minimum, hoping they would not be material to the holding. At some points I found that I was required to take the paths of 'restraint' and 'activism' at the same time. For example, I resolved to invent no new legal precedents for Newgarth, and nearly succeeded, but that forced me to invent an explanation for the small number of cases cited by the Court.
The result of all these constraints is that some contemporary movements are not represented, some are blended as far as consistency allows with others, and some are given undue prominence by their recalcitrance to be so blended. What emerges is one person's updating of Lon Fuller's group portrait of American legal philosophies and a deeper exploration of the issues raised by his case.
It follows from these constraints that there is not a one-to-one correspondence between these opinions and nine schools of contemporary jurisprudence. Both ways of deviating from one-to-one correspondence are present here. Blending sometimes put more than one contemporary movement into one opinion, and disagreements within a movement over details or direction sometimes required that it be represented in more than one opinion.
Each opinion has a dominant orientation within jurisprudence, but each also shows the mixed doctrinal influences and variations on the theme that real opinions do. Or at least I hope the opinions show this much real texture, for my constraints did not force all of it.
At the end of his article (p. 65, below), Fuller wrote, "The reader . . . who seeks to trace out contemporary resemblances where none is intended or contemplated, should be warned that he is engaged in a frolic of his own, which may possibly lead him to miss whatever modest truths are contained in the opinions delivered by the Supreme Court of Newgarth." If the first half of this sentence means that Fuller intended no resemblances, then he must have been winking. But if he meant that there are undoubtedly resemblances he did not intend, and that identifying any of the resemblances is less profitable than confronting the arguments, then I embrace his gentle warning and adopt it as my own.
The second half of Fuller's sentence I adopt with no hedging or winking. The positions I have distilled into judicial opinions are serious and significant attempts to understand the nature of law. Whether they contain only "modest truths" or truths of a grander kind is the primary question here for the student, scholar, and citizen. I wrote for the reader who is less interested in position-labeling and allusion-hunting than in grappling with these serious and significant arguments, assessing their strengths and weaknesses, and seeing how they matter for a concrete case. For these reasons, I hope that scholars who are already familiar with the positions represented here will not put secondary questions ahead of primary ones, except as a frolic of their own. For the same reasons, I do not believe these nine opinions presuppose any acquaintance with contemporary law or philosophy of law.
I am not the first to write new opinions on the Case of the Speluncean Explorers. Anthony D'Amato wrote three for the Stanford Law Review in 1980 (vol. 32, pp. 467-85), and Naomi Cahn, John Calmore, Mary Coombs, Dwight Greene, Geoffrey Miller, Jeremy Paul, and Laura Stein wrote one apiece, from different legal and political standpoints, for the George Washington Law Review in 1993 (vol. 61, pp. 1754-811). I recommend D'Amato's three opinions for their clear exploration of the moral issues raised by the case. I recommend the George Washington Seven for opinions that are more pure, or less mixed, than mine in their representation of contemporary positions, and more willing to invent new facts about Newgarth in order to permit sharper comment on the state of American law.
When reading Fuller's original piece one naturally asks which of the contending legal philosophies is most acceptable, most compelling, most persuasive. In addition, however, one wonders whether the plurality and incompatibility of these legal philosophies it itself a clue to the nature of adjudication. Is all judicial reasoning just ex post facto rationalization of ideology and interest, politics and personality? This question was an important one in Fuller's day and, if anything, even more important today. The question is raised less by any single opinion than by the spectrum of opinions. Each is reasoned in its own way, but what does this show about reasoning itself? If legal reasoning is infinitely flexible, if it can serve any master, if (as Hume said of reason in general) it is the slave of the passions, then the idea that law constrains judges would be entirely illusory. But if law properly understood does constrain judges, then why do reasonable judges disagree so deeply? I am happy that my project raises these questions, and just as happy that it does not permit me to digress from law into philosophy in order to answer them. That is another project for another time.
I gratefully thank the estate of Lon Fuller for permission to reprint his article in this volume. If I could not include his original text, my book would be impoverished and untethered. I thank Deanna Airgood for her speedy and accurate typing of Fuller's article, and Jennifer Laurin for her sharp proofreading eye. I thank Jim Bower, Marya Bower, Len Clark, Pablo Nagel, Mark Packer, Diana Punzo, Vince Punzo, Monteze Snyder, A.L.P. Thorpe, and two reviewers for Routledge, for their helpful comments on an earlier draft of these opinions. I thank A. Varner Seaman for the "body shield" analogy that I gave to Justice Goad. Finally, I thank my philosophy of law students over the past fifteen years for their insights, for their passion, for seeing what was at stake, and for their willingness to let a fictitious legal case teach them something important about law in the real world.
Fuller based his fictitious case on some disturbingly real ones. The two uppermost in his mind were undoubtedly U.S. v. Holmes (1842) and Regina v. Dudley & Stephens (1884), two lifeboat cases in which disaster at sea was followed by homicide and prosecution. In the Holmes case, the homicides were to lighten a badly overloaded lifeboat. In Dudley & Stephens, the homicide was to create a meal for the starving survivors.
In Holmes, an immigrant ship, the William Brown, en route from Liverpool to Philadelphia, hit an iceberg and sank off the coast of Newfoundland. The 80 passengers and crew had to share two lifeboats. Forty-one passengers and sailors ended up in a 22-foot longboat. Nine officers and crew members occupied the smaller jolly boat, built for six or seven. The remaining 30 souls were left to go down with the ship; most were children; none were crew. The captain ordered a mate, with a map and compass, to join the longboat. This made 42 in the longboat, 8 in the jolly boat. The longboat had oars but no sails; the jolly boat had both.
The jolly boat moved toward the Newfoundland coast where it was eventually picked up by a fishing vessel. The longboat was too overloaded to move and drifted for a day, its gunwales perilously close to the water. As the weather picked up, water began spilling into the boat. Already leaky, the longboat sprang a larger hole that required feverish bailing. After being swamped by a few large waves, it teetered on the verge of going down. The mate shouted to the sailors to lighten the load. Sailor Holmes responded, and with the help of another sailor, tossed more than six men and two women overboard. The next morning he tossed two more men overboard.
They drifted east, fighting starvation with their meager rations, and were picked up off the French coast a few weeks later. Their story fascinated and shocked the world. Those survivors who returned to the United States pressed the Philadelphia district attorney to prosecute the longboat sailors for murder. Unluckily, Holmes was the only sailor from the longboat in Philadelphia at the time, and was arrested. The grand jury would not indict him for murder, forcing the prosecutor to reduce the charge to voluntary manslaughter.
Holmes offered a necessity defense. If the killings were necessary for the survival of those on board, he argued, then they were legally justified. The case was heard by U.S. Supreme Court Justice Baldwin, temporarily sitting as a Philadelphia trial judge. He instructed the jury that some sailors were needed to navigate the longboat; but beyond that critical number, they were not entitled to any privilege over the passengers. The excess sailors must stand their chances in a lottery with the passengers. With these instructions, the jury convicted Holmes of voluntary manslaughter. Justice Baldwin sentenced him six months in prison and fined him $20. Holmes served his prison time, but was spared the fine when pardoned by President John Tyler.
In the Dudley & Stephens case, the sinking of the Australian yacht Mignonette, en route from Essex to Sydney, threw four survivors into one thirteen-foot lifeboat, with only two cans of turnips for food. Thomas Dudley was the captain, Edwin Stephens the mate, Edwin Brooks an able seaman, and Richard Parker an ordinary seaman. Parker was seventeen years old and, before long, clearly the most sickly and ailing of the four. The four sailors made one can of turnips last two days, and had nothing but rain water for the two days after that, when they caught a turtle. They finished the second can of turnips the same day, perhaps thinking they could catch another turtle. A week later they had eaten everything edible from the turtle, and there was still no sign of rescue in sight. Nor were they able to catch any other food. Their lips and tongue blackened from dehydration, their feet and legs swollen, and their skin covered in unhealing sores, they began to drink their urine. Parker drank seawater, which sailors believed would bring certain death.
On Day 19, Dudley proposed a lottery in which one of them would be killed and eaten by the rest. Brooks said no and Stephens was indecisive, so they put the plan aside. Dudley then spoke in confidence to Stephens. Parker would die first anyway, from his weakened condition; and he had no family. Why wait? Stephens was persuaded. Dudley then killed Parker, and all three fed on his body.
They fed on the body for four days, and finished about half of it, before they were rescued by the German sailing ship Moctezuma, en route from Punta Arenas, Chile, to Hamburg. When the Moctezuma put in at Falmouth on the way home, Dudley, Stephens, and Brooks were arrested for murder and taken into custody.
The decision to prosecute them for murder was approved by Sir William Harcourt, the British home secretary, after consulting with the attorney general, solicitor general, and officers of the crown. But the Falmouth public was entirely on the side of the defendants. Fearing acquittal, the judge asked the jury for a special verdict. This meant that the jury was asked only to find the facts, not to rule on the ultimate question whether the facts amounted to murder. (This procedure allowed the court to convict the defendants even with a sympathetic jury.) On the facts found by the jury, the judge convicted the defendants of murder, rejecting their necessity defense. He sentenced them to hang, but they were pardoned by Queen Victoria, on the advice of the same Sir William Harcourt who had recommended prosecution.
For more information see A. W. Brian Simpson's engrossing and detailed accounts in Cannibalism and the Common Law (University of Chicago Press, 1984). The stories are retold more briefly and dramatically in Leo Katz's excellent meditation on the criminal law, Bad Acts and Guilty Minds (University of Chicago Press, 1987). Excerpts from the judicial opinions are often found in casebooks used in Anglo-American law schools.
One can easily see the large clusters of fact that Fuller borrowed from these cases for his own: extremities of desperation, lotteries, cannibalism, popular sympathy for the defendants, politically difficult prosecutions, defenses of stark necessity, jury convictions, the possibility of pardons. Even small details, like the jury's special verdict in Dudley & Stephens, come up again in Fuller's case. But an inventory of these borrowed elements only brings into relief the extent of Fuller's creativity. He moved the accident from the high seas to a cave within Newgarth. This simultaneously sharpened questions about jurisdiction and permitted the all-important radio communications. He added the radio, and the expert medical and engineering opinions delivered by the radio; these gave the spelunkers reliable knowledge, not mere panic surmise, that starvation would come before rescue. He added the foresight of the spelunkers to ask their professional organization to begin a rescue if they did not return by a certain date. He added the 10 workmen killed in the rescue attempt. He added the complex dance of Whetmore's consent: at first consenting to join the death pact, then revoking his consent, then assenting to the fairness of the dice throw made on his behalf by the others. He added the Newgarthian history of social contract and civil war, the mandatory death penalty for murder, the ancient act of judicial legislation that created the exception for self-defense, and dozens of other details, including a handful of precedents, whose weight and significance each judge measures differently.
It would oversimplify Fuller's ingenuity to say that he fine-tuned the facts until the case for acquittal was just about exactly as strong as the case for conviction. For if that were so, then conscientious judges would be unable to make up their minds, or would do so only in great uncertainty, with large concessions to the other side. Instead, Fuller fine-tuned the facts until they gave some kinds of judges good grounds to acquit, and other kinds of judges good grounds to convict. Most judges of both kinds are quite sure that the facts are not balanced, and that the imbalance should be read their way. If in the end there as many votes to acquit as to convict, this is due less to the balance of the facts than to the balance of legal philosophies on the high court. Good judges are philosophically diverse; Fuller fine-tuned the facts in order to draw attention to this diversity of legal thought.
The case would be balanced in a broader sense if the several opinions were equally strong in their arguments or equally faithful to the law. But it would short-circuit Fuller's shrewdness and hard work to suppose that these diverse legal philosophies were equally adequate just because he includes them in the case, or just because they have arguments to offer, or just because they authentically emerge from important moral, legal, political, or philosophical traditions. This is just what we should think about, not what we should take from the case without thinking; it is not Fuller's conclusion, but his question.
A case whose facts are balanced in this special way, giving judges of different persuasions good grounds to find the facts imbalanced in different directions, is not so peculiar that it cannot teach us anything about real cases. On the contrary, most cases that stir public controversy possess the same troublesome property. For example, consider recent Supreme Court cases asking whether statutes prohibiting sodomy, flag burning, or assisted suicide are constitutional. The public divides on them, as if the facts were balanced, but individual judgments are strongly held, as if the facts were not balanced. Actually, of course, the balance lies less in the facts themselves than in the legal principles and perspectives held by the American public. This is just the complex and delicate sort of balance that Fuller achieved in his case, through his cunning invention of the facts and his judicious reading of the judiciary. That is only one reason why his case can teach us very much indeed about our own hard cases.
Lon Fuller (1902-1978) was a Texan, educated at Stanford, who taught at Harvard. The author of eight books[Note 2] and many articles, he was one of the leading legal philosophers of the 20th century. He conducted a long-running dispute in the law journals with H.L.A. Hart on the merits of positivism in law; Fuller took the anti-positivist position. To his credit, if one did not already know that Fuller was critical of legal positivism, then an honest reading of The Case of the Speluncean Explorers would not reveal it. In his major statement of legal philosophy, The Morality of Law (1964), he drew together and made systematic his case against positivism and argued for a limited form of natural law. As an appendix, he included his second and less famous, fictitious legal case, The Case of the Grudge Informer.
I've heard that Fuller was a superb contracts professor. But he died the year before I entered law school and I have not read his case book on contracts. To me his greatness lies in his lifelong proof that rigorous legal thought does not exclude creativity, does not require jargon, and does not make morality an independent variable or an afterthought.
1. The first quotation is from Anthony D'Amato, "The Speluncean Explorers —Further Proceedings," Stanford Law Review, 1980, vol. 32, pp. 467-85 at p. 467. The second and third are from William N. Eskridge, Jr., "The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell," George Washington Law Review, August 1993, vol. 61, no. 6, pp. 1731-53 at p. 1732. [Return]
2. Law in Quest of Itself, Foundation Press, 1940; Reason and Fiat in Case Law, American Book-Stratford Press, 1943; Basic Contract Law, West Publishing Co., 1947, 2d ed. 1964; Problems of Jurisprudence, Foundation Press, 1949; Human Purpose and Natural Law, Notre Dame Law School, 1958; The Morality of Law, Yale University Press, 1964, rev. ed., 1969; Legal Fictions, Stanford University Press, 1967; and Anatomy of Law, Praeger, 1968. [Return]
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