contemporary jurisprudence
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This article is written by Athira R Nair, a student of the School of Law, Christ University, Bangalore. This article aims at shedding light on jurisprudence, i.e., the various theories and philosophies of law through an analysis of the fictitious case of Speluncean Explorers. 


The case of the Speluncean Explorers is a paper written by Lon L Fuller which was published in 1949. It was the philosopher’s first article to make it to the Harvard law review. This hypothetical case gave us an insight into the application of various legal theories. Jurisprudence is essentially concerned with these theories or philosophies of law rather than the actual practice. This case has drawn so much theoretical interest that apart from the five opinions of the fictitious judges of the Supreme Court of Newgarth that were initially published in Fuller’s paper, there have been various other opinions on the same too. The case of the Speluncean Explorers is aimed at introducing students of the philosophy of law to diverse legal theories. All the diverse opinions of the judges and scholars, in this case, represent different views of legal theories, like natural law theory, consequentialist theory, positive law theory, critical race theory, and the like, some of which are even conflicting. This case is useful for students to think about the real practical consequences of various philosophical theories.

Facts of the case

This is a case involving murder and cannibalism. The four accused explorers were stranded in a cave with a fifth explorer named Roger Whetmore. They were stranded as the cave’s entrance was obstructed due to a landslide. The 5 explorers only carried minimal provisions and did not have any food to survive for long. Luckily for them, on the twentieth day, they noticed a portable wireless machine in the cave which could help them contact people at the rescue camp through a similar machine that was installed there. Through this, they contacted the rescue team and soon enough, rescue efforts were underway. The rescuers, however, had a tough time navigating their way through consequent landslides and informed the explorers that it would take about 10 days to rescue them. During the rescue process, unfortunately, ten of the rescuers lost their lives due to fresh landslides. 

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Post a discussion with medical experts regarding their situation, the explorers learned that there was little to no possibility of their survival for an additional 10 days without any food. Roger Whetmore suggested that they should kill and eat one of the members of the group for survival. The other explorers agreed but did not know how they should go about choosing the prey. No rescuer, doctor, member of the government, or priest offered advice regarding this situation when the explorers asked. So, they decided to throw a dice and leave it to luck. Before throwing the dice, Roger Whetmore, albeit the one to originally suggest the idea, realised he couldn’t go through with it and withdrew. The others however were keen on going ahead with the plan and threw the dice anyway without excluding Whetmore so as to improve their chances at survival. Unfortunately for him, the dice went to Whetmore’s disadvantage and he was killed and eaten by the four accused. 

The four living explorers were finally rescued on the 32nd day. Whetmore was killed and eaten on the 23rd day, 9 days earlier. The medical experts deduced that there was a chance of all five surviving had the four survivors not cannibalised Whetmore. After being rescued, the 4 surviving explorers were treated for malnutrition and shock. Post this, they were tried for murder and consequently awarded capital punishment by the Court of General Instances of the County of Stowfield. They then proceed to file a review petition in the Supreme Court of Newgarth. Upon appeal, the case is decided by a bench of 5 judges namely, Chief Justice Truepenny, Justice Foster, Justice Tatting, Justice Keen, and Justice Handy.

Judgement of different judges in the case

Chief Justice Truepenny

Chief Justice Truepenny upholds the conviction of the four accused explorers. In his opinion, the trial that led to their initial conviction was a fair and just one that simply followed the route of law. He begins stating his reasons for holding the accused guilty by reiterating what the basic statute states, which is “Whosoever shall willfully take the life of another shall be punished by death”. Justice Truepenny takes the viewpoint of an exclusionary legal positivist and plainly states that law is to be considered as law and the language of the statute is such that it does not permit any exceptions whatsoever. So, he believed there was no choice but to uphold the conviction. In this way, he, as a positivist, shows complete and utmost regard for the law. That said, he was sympathetic towards the accused and states that, unlike the judges, the Chief Executive is not bound by the law and has complete power to pardon. So, he suggests that the Chief Executive can be instructed to exercise clemency given the circumstances of this case to mitigate the rigours of the law. Clemency is essentially an act of mercy towards a criminal by someone in an authoritative position at their own discretion. It is the process by which a Governor, President, or in this case, Chief Executive reduces the defendant’s sentence or grants a pardon considering the specifics of the case at hand. 

Justice Foster

Justice Foster overturns the initial judgement and acquits the accused. He was a natural law theorist and hence takes that approach to justify his decision. Justice Foster was critical of Chief Justice Truepenny’s logical positivist approach as he believed in the maxim “cessante ratione legis, cessat et ipsa lex” which translates to ‘When the reason for a law ceases to exist, the law itself ceases’. This essentially means that we have the law for a reason and once the reason disappears, the law disappears as well. This justification behind the law’s existence is contrary to the positivist view which states that law is self-contained. Justice Foster believed that since the reason for the law to exist doesn’t hold good in this case, the four accused can be considered to be outside normal functioning society and in the state of nature. He shed some light on the irony of ten rescue workers losing their lives in an effort to save that of five explorers being deemed as right and saving the lives of four explorers at the cost of one being deemed as wrong. Saying so, Justice Foster stated that the value of life, in this case, is overrated. The rescuers knew what they were getting into and the associated risks. He was of the opinion that if ten lives were expendable to save five, saving four lives at the expense of one should be allowed too. He referred to this case as one of self-preservation and stated that the same logic used while dealing with cases of self-defense applies here. So, he believed that much like killing in self-defense, killing in self-preservation does not constitute murder. Justice Foster’s purposive interpretation would be the closest to Fuller’s opinion given his work and general thought process. 

Justice Tatting

Justice Tatting recuses himself from the matter stating that there is no way to distinguish the principles according to which the case can be decided in a free and rational manner. That said, he does criticize Justice Foster’s natural law position. He argued that if the defendants were right to kill Whetmore, then in a situation wherein Whetmore kills them in self-defense, pleading the same wouldn’t get him acquitted. That, however, is inconsistent with the self-defense theory which is a legitimate ground for acquittal when self-defense is exercised proportionally and within limits. So, the theory of self-preservation being similar to self-defense and being a valid ground for acquittal must be wrong. He also pointed out that Justice Foster fails to consider Whetmore’s withdrawal which took place even before the dice was rolled. He points out that another reason for the failure of the self-defense point of view would be that murder requires a willful act whereas self-defense is an impulse. In this scenario, the accused acted in a wilful manner after prolonged deliberation and not impulsively. To further substantiate his stance on Justice Foster’s reason for acquittal being flawed, Justice Tatting cited the case of Commonwealth vs Valjean (4291) wherein the Court rejected hunger as a valid justification for stealing food and convicted the thief. He questions the basis for convicting one man for stealing due to starvation and acquitting four men for murder and cannibalism for the very same reason. Anguished by the moral and legal dilemma, Justice Tatting finds the case undecided and withdraws from the decision of the case entirely.

Justice Keen

Justice Keen favoured the death penalty and convicted the accused explorers. According to him, the role of a judge is limited to applying the law. The approach he employed was termed as ‘positive textualism’. He was critical of the opinion of both Justice Foster and Chief Justice Truepenny even though like him, the latter upheld the conviction too. He stated that the powers of the Chief Justice and the Chief Executive are separated and the former cannot give directions to the latter. According to him, Chief Justice Truepenny requesting the Chief Executive to exercise clemency and pardon the accused is a violation of the judicial process. That said, he sides with Chief Justice Trupenny’s opinion on this case not being one of self-defense as he is of the opinion that the scope of self-defense is applicable only when the party is resisting an existential threat to their own life. Whetmore posed no threat to the lives of the accused and hence applying that theory here is a flawed approach. 

Justice Handy

Justice Handy acquitted the accused explorers and followed the approach of legal realism which was connected to common sense. He appeals to public opinion and believes that the defendants should be pardoned. Justice Handy, through indirect means, learned that if the accused were found guilty, the Chief Executive would not commute the sentence. In contrast, various public polls suggested that over 90% of the voters believed that the explorers ought to be pardoned and left off with a kind token as a punishment. He believed that common sense dictated acquittal and used the poll results to justify the same. In his opinion, this matter required practical wisdom to be exercised with respect to human realities and not abstract theories. He also brought up the fact that no one was paying heed to the fact that, Whetmore’s withdrawal was a revocation of the offer prior to action. 

As it can be construed from the aforementioned decisions, the 5 judges have conflicting opinions on the situation and proceed to give an evenly divided judgement with one judge recusing himself from the case, 2 affirming the conviction, and 2 overturning it.  According to the natural course of the judicial process, in situations of a tie, the original opinion is to be upheld. So, the original justice of the Court of General Instances stood and the public executioner was directed to impose a death sentence on the accused explorers. 

Different schools of law as used in the judgement

Positivist school of law

Legal positivism is a theory wherein written rules, principles, and legislation that have been expressly recognised, enacted, or adopted by an authority like the government or any other political institution are considered to be the only legitimate sources of law. Justice Keen and Chief Justice Truepenny rely on this approach while deciding the case. Following this approach, they keep morality and personal feelings out of the decision-making process and simply apply the words enacted by the legislature in the form of the statute. Justice Keen even mentioned that if he were to take a decision in his capacity as a private individual, he would acquit the defendants but in his capacity as a judge, he has to apply the statute and hold them guilty.

Natural school of law

The natural school of law, simply put, is the law of nature. Also referred to as divine law, this approach is based on the idea that a higher law based on morality exists which measures the validity of human law. According to this theory, law comprises a set of universal and eternal rules prescribed by an authority superior to the state. Justice Foster constructed his arguments on this basis.

Legal Realism

Legal realism is an approach derived from the natural school wherein jurisprudence relies on empirical evidence. Here, emphasis is laid on the law as it actually exists instead of law as it ought to be. This theory suggests that law is derived from prevailing social interests and public policy so judges have to consider them while making a decision rather than relying just on abstract rules. Justice Handy employs this approach by appealing to public opinion and exercising practical wisdom.


Literalism, simply put, refers to the interpretation of words in their literal sense. It can be construed as a subset of the positivist theory. Here, the contents of a statement are determined entirely by the rules of the language, irrespective of the speaker’s intention. Justice Keen employs this approach and promotes the direct application of statutes with little to no judicial discretion or legal interpretation. 


Lon Fuller, the author of ‘The Case of the Speluncean Explorers’ has contributed generously to the law and morality debate, his views tilting towards the congruence of the two. Despite that, this fictitious case sees no reflection of Fuller’s personal opinions. He paints a strong argument for all approaches with no bias whatsoever. From his work, however, it can be construed that Justice Foster’s opinion is the closest to what Fuller would’ve deemed fit had this scenario occurred in real life. The final verdict in the case of the Speluncean Explorers eliminates the possibility of innocence owing to excuses such as duress, necessity, or self-defense and arrives at the verdict of guilt which is derived from a direct reading of the statute despite morality pointing in the opposite direction. This case gives us an insight into the practical application of various legal theories. 


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