The case of The Speluncean Explorers

Introduction

Lon L. Fuller’s “The Case of the Speluncean Explorers,” published in the Harvard Law Review in 1949, has garnered significant theoretical interest since its release. Although hypothetical, this case draws from one or two historical events. Fuller idealizes the scenario to present judicial decisions reflecting various schools of judicial interpretation grounded in different legal theories. After presenting the facts of the case, the remaining portion of the module explores a wide range of (fictional) judicial or academic responses. Through examining these diverse responses, we can observe how judgments on the same set of facts can yield radically different outcomes. Some judges acquit, others convict, and some recuse themselves—all based on identical events. These differing decisions and approaches are rooted in the legal philosophies guiding the judges’ or scholars’ thought processes. Thus, engaging with these varied responses to the case introduces readers to a broad spectrum of competing legal philosophies.

Factual matrix of the case

• Four explorers are tried for murder after killing and consuming a fellow explorer, Roger Whetmore, to survive while trapped in a cave during ongoing rescue efforts. Ironically, the idea of killing and eating one of their own was initially proposed by Whetmore himself.
• This drastic decision was influenced by medical experts who communicated with the trapped explorers and informed them that cannibalism might be their only means of survival until rescue. The experts had indicated that they had “little possibility” of surviving more than ten days without food.
• Whetmore sought advice from those above ground, asking how the trapped explorers should determine who among them would be killed and eaten. However, no rescuer, doctor, judge, government official, or priest offered guidance. Whetmore then suggested throwing dice to make the decision.
• The group agreed, but before the dice were cast, Whetmore withdrew from the plan. Despite his withdrawal, the others threw the dice on his behalf, and he lost. During the rescue operation, ten rescuers died in landslides, but the efforts eventually succeeded, and the four explorers were saved.
• They were rescued on the 32nd day, and it was discovered that they had killed and eaten Whetmore on the 23rd day of their entrapment. According to the medical team’s advice, the explorers might have survived without resorting to cannibalism, but they had no way of knowing this.
• Following their rescue, the four survivors were tried for murder. The initial court convicted them, and they subsequently appealed to the Supreme Court. The following section outlines the Supreme Court judges’ decisions on the appeal.

Opinion of the Judges

Chief Justice Truepenny

• “Whoever shall willfully take the life of another shall be punished by death. But in this case, I think, some form of clemency shall be extended to these defendants.”¹
• Justice Truepenny asserts that the law mandates the death penalty for anyone who wilfully takes another’s life, reflecting a strict legal positivist perspective where the law is seen as absolute and devoid of exceptions. In this view, the Speluncean Explorers’ case does not permit deviation from the prescribed punishment.
• Nevertheless, Truepenny acknowledges that clemency could serve as a viable alternative to temper the law’s harshness, given the extraordinary nature of the case. This approach respects both the letter and the spirit of the law by suggesting that while the legal verdict should be upheld, the Chief Executive—be it a President or Prime Minister—has the discretion to grant a pardon.
• Thus, Truepenny upholds the legal conviction while advocating for potential executive clemency to address the unique circumstances without compromising the integrity of the legal system.

Justice Foster

Justice Foster in his judgment recited “I do not believe that our law compels the monstrous conclusion that these men are murderers.”² Justice Foster criticizes Chief Justice Truepenny’s opinion, adopting a natural law perspective. He argues that the men’s actions cannot be deemed criminal given the unique circumstances of the case. He justifies acquitting the defendants on two primary grounds:

1. The case should be governed by the law of nature, not by the positive law of the commonwealth, which includes statutes and precedents. He applies the maxim “the reason for the law ceasing, the law ceases itself” to this exceptional situation. Positive laws presume the coexistence of men in society, but in this case, coexistence was impossible without killing one man. Therefore, statutes and precedents should not apply. The murder statute, in his view, is irrelevant because the legal order was as distant from the defendants as if they were miles beyond the state’s boundaries. Foster also notes that the act was initially proposed by Whetmore, whose life was taken. He emphasizes the importance of contracts, noting that governments historically formed by contract, and he challenges the absolute value placed on life in this case. He highlights the irony that ten rescuers died to save the five explorers, arguing that if it wasn’t wrong for the rescuers to sacrifice their lives, it shouldn’t be wrong for the explorers to follow a plan that saved four lives at the cost of one.
2. Even if the case is governed by positive law, Foster argues that statutes are not always followed to the letter, particularly when contingencies arise that prevent strict application. He references the Fehler v. Neegas case, where a misplaced “not” in a statute’s crucial section altered the law’s intended meaning. Thus, the court should dismiss a literal statutory interpretation in this case. He also argues that the exception of self-defence, while recognized by courts, is not explicitly stated in the statute that criminalizes taking a life. Foster interprets the defendants’ actions as self-preservation, akin to self-defence, and contends that legislative oversights should be corrected. He believes that not considering this case as an exception to the murder statute would be such an oversight.

Justice Tatting

Justice Tatting recuses himself from the case, unable to make a decision due to the conflicting views that lead in opposite directions. He criticizes the prosecutor for bringing the case to trial without a law against cannibalism. The circumstances made it difficult for him to determine the scope of the murder statute’s exceptions. He poses hypothetical scenarios—what if Whetmore had refused to participate in the plan, or if no plan had been adopted, or if personal bias motivated the killing—and questions whether it would be right to execute four men for whom the ten rescuers died. His disagreements with Justice Foster are based on several points:

1. He challenges the application of the law of nature instead of civil society, questioning when one state ceases and another begins.
2. He doubts whether judges can decide a case governed by the law of nature, answering in the negative.
3. He contrasts self-preservation with the victim’s right to self-defence, arguing that if the defendants were justified in killing Whetmore, he would not have been able to claim self-defence, just as a condemned prisoner cannot kill an executioner.
4. He rejects the idea that the defendants were governed by the law of nature and disagrees with Foster’s interpretation of that law.
5. He references Commonwealth v. Valjean, where the court did not accept hunger as a justification for theft, questioning how killing and eating a man could be justified. He also questions whether deterrence would be served in such cases, suggesting that if the defendants had believed their actions would be classified as murder, they might have waited and possibly been rescued.
6. He notes that Foster assumes a statute should be interpreted based on its purpose. While self-defence was treated as an exception to the murder statute in Commonwealth v. Parry, other cases, such as Commonwealth v. Scape and Commonwealth v. Makeover, focused on retribution or rehabilitation. He asks what should be done when multiple purposes exist.
7. He argues that while the murder statute requires a willful act, it differs from self-defence, which responds to an immediate threat. The defendants acted willfully and deliberated for hours before committing the act.

Justice Keen 

• Justice Keen criticizes Chief Justice Foster’s suggestion of directing the chief executive, emphasizing the importance of the separation of powers. He asserts that he cannot offer directions to the Chief Executive or consider the executive’s views in his decision. Setting aside the moral aspect of the law, Keen focuses on the statute itself, arguing for fidelity to the legislature.
• According to the law, the defendants are guilty of murder because they willfully took Whetmore’s life. He maintains that judicial decisions must meet three criteria—a purpose, a legislator, and quod erat faciendum (what is to be done)—to fill legal gaps. He admits that neither he nor Foster knows the statute’s purpose, but argues that the statute’s scope, not its purpose, is paramount. Keen rejects the notion that self-defence applies in this case because Whetmore posed no threat to the other explorers.
• His decision is that the defendants should receive the death penalty, acknowledging that this decision may be unpopular, considered immoral by some, and against his wishes, but demonstrating fidelity to the law.

Justice Handy

• “The problem before us is what we, as officers of the government, ought to do with these defendants. That is a question of practical wisdom, to be exercised in a context, not of abstract theory, but of human realities. When the case is approached in this light, it becomes, I think, one of the easiest to decide that has ever been argued before this Court.”³
• Justice Hardy argues that the government should be responsive to public opinion rather than abstract principles. His judgment is based on the belief that a good administrator applies principles and procedures to achieve the proper result, considering the case at hand rather than rigid rules.
• He notes the widespread publicity of the case and cites polling data showing that 90% of people believed the men should be pardoned. Hardy argues that since the government is of the people, public sentiment should guide the decision.

The Decision

With Justice Tatting withdrawing from the case, the decision rested with the remaining four judges. Two judges (Truepenny and Keen) upheld the guilty verdict, while two (Foster and Hardy) favoured acquittal. The tie meant that the lower court’s decision stood, and the four men were convicted of murder and sentenced to death. This is how the original case concluded, but since then, many legal scholars have expanded upon it, imagining further scenarios, advisory opinions, and retrials.

Further Proceedings by Jurists

Prof. Anthony D’Amato of Northwestern University School of Law in 1980 wrote a paper in Stanford Law Review⁴ in which he presents a scenario where the Chief Executive appoints a special commission to determine whether clemency should be granted to convicted explorers. The commission, consisting of three distinguished professors, is tasked with making a recommendation on this complex issue. This scenario highlights the tension between strict legal interpretation and the exercise of mercy within the justice system. The professors, with their expertise in legal theory and ethics, must carefully consider not only the facts of the case but also broader societal values, the potential for rehabilitation, and the implications of clemency for justice and public confidence in the legal system.

• Professor Wun strongly opposes granting clemency, asserting that the defendants’ actions amounted to cold-blooded murder, driven solely by self-interest. He emphasizes that the decision to kill Whetmore, who had already withdrawn from the deadly agreement, was not a desperate act but a calculated move intended to increase each defendant’s own chances of survival. According to Wun, this deliberate and premeditated act of excluding Whetmore’s expressed wishes reflects a severe moral breach, reinforcing his stance that the defendants should face the full consequences of their actions without the leniency of clemency.
• Professor Tieu advocates for clemency, focusing on the “life” of the group rather than individual lives. He suggests that if the defendants are executed, it would violate the statute “whosoever shall wilfully take the life of another shall be punished by death,” implying that executing the survivors would be unjust since they acted out of a collective will to survive.
• Professor Thri offers a nuanced perspective, arguing that the defendants are neither guilty or innocent. He recommends commuting their sentences to compulsory service in a medical facility, where they could atone by helping to save lives, thus balancing the moral and legal complexities of their actions.

This continuation of the hypothetical case by D’Amato illustrates the challenges in applying legal principles to extreme situations and how different interpretations can lead to diverse and conflicting recommendations.

1. Truepenny, C.J.  Fuller, L. L. (1949). The case of the speluncean explorers. Harvard Law Review, 62(4), p. 616. ↩︎
2. Fuller, L. L. (1949). The case of the speluncean explorers. Harvard Law Review, 62(4), p. 617. ↩︎
3. Fuller, L. L. (1949). The case of the speluncean explorers. Harvard Law Review, 62(4), p. 636. ↩︎
4. Anthony D’Amato, The Speluncean Explorers—Further Proceedings, 32 Stanford Law Review 467 (1980). ↩︎