The Case of the Speluncean Explorers Read the condensed version of the case and then address the following: 1. Provide a summary of the case. 2. What law (give its name and description) has been violated? 3. How is it possible that the judges came to different conclusions about what the outcome should be if they are all applying the same law to the facts provided ? 4. Which of the judges is a legal positivist? A legal realist? A follower of natural law theory? 5. If you had been a judge hearing this case, how would you have decided? Please type your responses in Times New Roman 12 point font with double spaces and don't forget to include a reference page and in-text citations as needed following APA formatting guidelines. LAW CASES statutory construction is required that is not consis- This conclusion rests on the proposition that our tent with the past practices of this Court. Certainly, no positive law is predicated on the possibility of men's layman would think that in letting these men off we The Case of the Speluncean Explorers coexistence in society, When a situation arises in had stretched the statute any more than our ancestors which the coexistence of men becomes impossible, did when they created the excuse of self-defense. Harvard Law Review 62, no. 4 (1949) then a condition that underlies all of our precedents I conclude that defendants are innocent of the and statutes has ceased to exist. When that condition crime charged, and that the conviction and sentence In the Supreme Court of Newgarth (4300) disappears, then it is my opinion that the force of our should be set aside. positive law disappears with it. [NOTE: Only three of the five "opinions" of the justices are Lon L. Fuller Handy, J. included here. With one judge withdrawing from the case, the Supreme Court ultimately was evenly divided. As such, The four defendants in this case were indicted for murder. defendants. The explorers reported that they, along with Each was convicted and sentenced to be hanged. They bring Whetmore, had agreed to use a pair of dice to determine One of the great newspaper chains made a poll of the conviction and sentence of the Court of General Instances who should die; Whetmore lost. public opinion on the question, "What do you think was affirmed. The "case" ends with this sentence: "It is a petition of error before this Court. ordered that the execution of the sentence shall occur at 6 Each of the four defendants in this case belongs to the At trial, a jury convicted all four defendants of murder. the Supreme Court should do with the Speluncean Speluncean Society, an entity of amateur individuals who The judge sentenced the defendants to be hanged. The judge explorers?" About 90 percent expressed a belief that a.m., Friday, April 2, 4300, at which time the Public Execu- toner is directed to proceed with all convenient dispatch to enjoy exploring caves. The four defendants, along with also declared that under the law of the Commonwealth, defendants should be pardoned or let off with a kind of fellow Society member Roger Whetmore, were exploring a there was no discretion a judge could exercise regarding token punishment. It is perfectly clear, then, how the hang each of the defendants by the neck until dead.") cave in early May 4299 when a landslide occurred, and the penalty for a murder. After the trial had concluded, public feels about the case. We could have known this heavy boulders closed the entrance to the cave. The five the members of the jury petitioned the Chief Executive of without the poll, of course, on the basis of common explorers quickly found there was no way out the Commonwealth asking that the sentence be commuted sense-or even by observing that on this Court there are apparently four-and-a-half men, or 90 percent, who 1. What theory of jurisprudence was relied upon by each and decided to simply wait until to imprisonment for six months. The Chief Executive has share the common opinion. of the following? Secretary of the Society notified the families of taken no action. This makes it obvious, not only what we should Chief Justice Truepenny? Why? that a rescue party had been dispatched to the cave entrance. Truepenny, C. J. do, but what we must do if we are to preserve between b. Justice Foster? Why? Regretfully, the task of rescuing the five trapped C. Justice Handy? Why? proved considerable and time-co nsuming. Fresh ourselves and public opinion a reasonable and decent landslides delayed the project. Tragedy also struck when ten It seems to me that in dealing with this extraordinary accord. Declaring these men innocent need not involve 2. Which of the three approaches do you most agree workers were killed after the hole they were creating case, the jury and the trial judge followed a course that us in any undignified quibble or trick. No principle of with? Why? entrance to the cave collapsed. After was not only fair and wise but also the only course that and effort, the Society members were rescued on the thirty- was open to them under the law. The language of our second day after they had begun their exploration of the statute is well known: "Whoever shall willfully take the cave. life of another shall be punished by death" N.C.S.A. The four defendants testified at trial that they had (N.S.) $12-A. This statute permits no exception appli- not had an adequate supply of water or food for such an cable to this case; however, our sympathies may incline extended time in the cave. On the twentieth day of their time us to make allowance for the tragic situation in which in the cave, they were able to mal device work. these men found themselves. Upon establishing scuers, they In a case like this, the principle of executive asked how long it would take for them to be rescued. The clemency seems admirably suited to mitigate the rigors engineers estimated that, If there were no more landslides, it of the law, and I propose to my colleagues that we would take at least another ten day follow the example of the jury and the trial judge by Upon hearing this news, the five explorer asked that joining in the communications they have addressed to a medical team assess their medical condition. Given that the Chief Executive. If this is done, then justice will they had consumed all of their food, the explorers asked be accomplished without impairing either the letter or whether they could live ten more days without food. The spirit of our statutes and without offering any encour- physicians on the medical team responded that there wa agement for the disregard of law. little chance the five could survive. The explorers then asked the medical team if they could survive for ten days if they Foster, J. consumed the flesh of one of their group. The medical team For myself, I do not believe that our law compels the responded in the positive. monstrous conclusion that these men are murderers. Whetmore then asked the physicians what process they I believe, on the contrary, that it declares them to be would recommend for determining which of the five should Innocent of any crime. be killed so the others could live. None of the physicians I rest this conclusion on a premise that may arouse responded to the request. Whetmore then asked the engi- opposition until it has been examined candidly, I neers to find a judge or government official who could make the choice. No individual of government was found. At this take the view that the enacted or positive law of this Commonwealth, including all of its statutes and prec- point, the explorers ended their wireless communication. On the twenty eighth day, the explorers once again edents, is inapplicable to this case, and that the case established communication with the engineers. They is governed instead by what ancient writers in Europe and America called "the law of nature." reported that on the twenty-third day of their time in the cave, Whetmore had been killed and eaten by the four (continues)