+(,1 2 1/,1( Citation: Frederick Schauer, Fuller's Fairness: The Case of the Speluncean Explorers, 35 U. Queensland L.J. 11, 20 (2016) Provided by: University of Virginia Law Library Content downloaded/printed from HeinOnline Wed Sep 20 14:34:49 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device FULLER'S FAIRNESS: 'THE CASE OF THE SPELUNCEAN EXPLORERS' FREDERICK SCHAUER* There is much to appreciate in Lon Fuller's 'The Case of the Speluncean Explorers' published in the Harvard Law Review in 1949.' The article offers still- valuable insights into the various connections between law and morality. It is also an important contribution to the topic now commonly discussed under the rubric of legal defeasibility. 2 In addition, it remains a timely contribution to knotty questions about statutory interpretation. And all of this is written with a marvelous combination of charm and brio, even apart from the virtues of a law review article with no footnotes whatsoever. All of these positive features of Fuller's masterpiece are worthy of comment, but perhaps most deserving of attention, and most often overlooked, is the way in which Fuller presents strong and sympathetic arguments for a host of mutually exclusive positions, all of which, save one, are positions that Fuller himself, in other writings, in fact rejects. In a world of academic legal writing in which adjectives all too often substitute for analysis, and in which invective takes the place of argument, Fuller's efforts to make the strongest arguments even for positions with which he disagrees is a model of intellectual honesty and academic rigor, and would remain worthy of emulation even were the substantive arguments in the article no longer timely. I THE CASE OF THE SPELUNCEAN EXPLORERS: THE 'FACTUAL' BACKGROUND Fuller's allegorical Case of the Speluncean Explorers, set in the Supreme Court of Newgarth in the year 4300, is a fictionalized variation on the very real case of R v Dudley and Stephens, 3 a staple of introductory criminal law cases throughout the common law world, and a case made even more famous in Brian Simpson's Cannibalismand the Common Law.4 In the real case, itself an all-too-common exemplar of a situation common in the age of sail, 5 the four survivors of an 1884 shipwreck aboard the racing yacht Mignonette, en route from England to Australia via the South Atlantic, found David and Mary Harrison Distinguished Professor of Law, University of Virginia. Lon L Fuller, 'The Case of the Speluncean Explorers' (1949) 62 HarvardLaw Review 616. 2 See, eg, Jordi Ferrer Beltrin and Giovanni Battista Ratti (eds), The Logic of Legal Requirements: Essays on Defeasibility (Oxford, 2012); Luis Duarte d'Almeida, Allowing for Exceptions: A Theory of Defences and Defeasibilityin Law (Oxford, 2015). 3 [1884] 14 Q.B.D. 273. 4 A W B Simpson, Cannibalismand the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise (Chicago, 1884). A less scholarly but highly readable (and slightly novelized) account is Neil Hanson, The Custom of the Sea (Wiley, 1999). 5 Among the more famous examples was the wreck of the Essex. See Nathaniel Philbrick, In the Heart of the Sea: The Tragedy of the Whaleship Essex (Penguin, 2001). See also United States v Holmes, 26 F. Cas. 360 (E.D. Pa, 1842), which did not involve cannibalism, but rather the act by several seamen in an overcrowded lifeboat of throwing others overboard so that some could survive. University of Queensland Law Journal 2016 themselves starving and dying of thirst in a thirteen foot dingy.6 Under circumstances that still remain not entirely clear, at least two and possibly all three of the survivors proceeded to kill the fourth, and weakest, of their number, in order that the body of the deceased would provide food and water for the remaining seamen. In the event, the three survivors were rescued and two of them were subsequently prosecuted for murder, with the third, Brooks, who likely did not participate in the decision to kill the young and weakened Parker, testifying for the prosecution. The two, Dudley and Stephens, were duly found guilty, but subsequently received a partial royal pardon, reducing their sentence from death down to imprisonment without hard labor for a period of six months. In Fuller's fictional variant, the survivors were not seamen but rather a group of amateur explorers investigating a cave. The cave entrance collapsed, leaving five of the explorers stranded and starving. After the failure of several rescue attempts, the starving survivors agreed to hold a lottery7 to determine which of their number should be killed and eaten so that the remaining explorers could possibly survive until rescued. Immediately prior to conducting the lottery, one of the survivors, Whetmore, sought to withdraw from the agreement, a request that was denied by the remainder, who proceeded to hold the lottery in Whetmore's absence, the results of which went against Whetmore. He was thereupon sacrificed for the benefit of the others, who shortly thereafter were rescued. Tried for murder under a statute that seemingly contained no exceptions for circumstances such as these, the defendants were found guilty by a jury and a judge, 8 and then sentenced to death by the trial judge in accordance with the literal words of the Newgarth statute, which provided simply that 'Whoever shall willfully take the life of another shall be punished by death'. 9 The Case of the Speluncean Explorers is the defendants' appeal of the trial court's judgment, and the article takes the form of Fuller's presentation of the separate opinions of each of the five Justices of the Supreme Court of Newgarth. II THE OPINIONS There is a possible reading of the relevant statute that would seemingly have eliminated what all of the Justices perceived as a genuine dilemma. Because the statute prohibited only that taking of life that was done 'willfully', there is a plausible view that a killing done under perception of immediate death is not willful at all. If the killers perceived that killing Whetmore was a necessary condition of their survival, then perhaps the statutory language could be interpreted in such a way as to exclude the behaviour of the defendants. 6 1884, the year the Mignonette foundered, was well after what is commonly called The Age of Sail, and by 1884 most sea-going ships were steam-powered. But although the era of the sailing ship was coming to an end by the time of the Mignonette disaster, the most relevant fact was that the events preceded the invention of radio, to say nothing of cellular telephones, Global Positioning Systems, airplanes, and helicopters, meaning that the survivors of a shipwreck were as cut off from the rest of the world as they would have been a hundred years earlier. 7 Holding a lottery was part of the long-accepted 'custom of the sea', and the failure to follow the norn of conducting a lottery was part of the reason that Dudley and Stephens had been prosecuted. 8 As Fuller constructed the case, the jury delivered a special verdict on the facts only, leaving it to the judge to determine the legal consequences of those facts. Fuller, above n 1,618-19. 9 lbid 619. Vol 35(l) Lon Fuller's 'The Case of the Speluncean Explorers' Fuller recognizes this Fpossibility, but cleverly includes a (fictional) precedent eliminating this alternative.' And with the possibility of innocence by virtue of self- defense, duress, necessity, or other excuse eliminated, the case represents a situation, as all five of the Justices agreed, in which the literal reading of the statute demanded guilt, but in which morality seemed to point in the opposite direction. None of the Justices believed, that is, that the defendants had acted wrongfully, but all agreed that their behaviour was unlawful according to the literal and ordinary meaning of the words of the statute. Faced with this dilemma, each of the Justices comes to a different conclusion. Chief Justice Truepenny agrees that the law had been violated and that judges, both at trial and on appeal, have no choice but to uphold the conviction. 'This statute permits of no exception applicable to this case, however our sympathies may incline us to make allowance for the tragic situation in which these men found themselves'." But although the Chief Justice agreed that the law required the sentence of death, he also believed that it was open to the Justices to communicate to the Chief Executive (the governor) the court's recommendation that he exercise his power of clemency to pardon the defendants despite their guilt. Chief Justice Truepenny's preferred result was thus close to the outcome in Dudley & Stephens itself, but with the added fillip of the Chief Justice explicitly urging that the court itself recommend this course of action to the governor. Justice Foster, whom astute jurisprudes will recognize as pretty close to Fuller himself,' 2 offered two arguments for acquittal, arguments that went against the literal application of the statute. The first argument was that the statute was designed to be applied within a normal functioning society, and that the existence of such a society was a necessary condition for the application of the law.