Lecture 2- Speluncean Explorers PDF

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Jurisprudence: The case of the Speluncean Explorers Lecture handout

Co n t e n t s : 1 ]I NT RODUCTI ON  Wh a ti st h ec a s ea n dwhyc o n s i de ri t ?  Ba c k g r o u n d 2 ]T h eOpi n i on s  J u s t i c eT r ue p e n n y  J u s t i c eF o s t e r  J u s t i c eT a t t i n g  J u s t i c eKe e n  J u s t i c eHa n dy

[1] Introduction [1.1] What is the “case” and why consider it? See Lon Fuller: The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616 (1949) For an Internet copy see: http://www.nullapoena.de/stud/explorers.html The case consists of five opinions of judges in the fictitious Supreme Court of “Newgarth” in the year 4300. In writing the Speluncean Explorers, Fuller drew inspiration from two famous “lifeboat” cases: United States v. Holmes, U. S. Circuit Court, 1842 The Queen v. Dudley & Stephens, 14 Q.B.D. 273 (1884)

[1.2] Background Lon Fuller Fuller was an American theorist who taught contract law and jurisprudence at Harvard between 1939 and 1972. The Explorers was published in 1949. Following the Second World War, this was a period of uncertainty and change in jurisprudential thinking. Although the case alludes to older philosophical approaches such as utilitarianism and social contract theory, Fuller’s purpose in writing the Speluncean Explorers was, in part, to illustrate different approaches to legal theory; to provide a “snapshot” of the state of Anglo-American legal theory at the end of the 1940’s. What are these different approaches?

Formalism and Legal Realism The most influential jurisprudential school in the U.S. until the Second World War was Legal Realism which took the question of the nature of law into the courtroom to develop a theory of judicial decision making. It also stressed the importance of the practical work of lawyers and judges. In fact, the Student Law Office is a form of teaching that derived from this approach to legal education. Realism developed in the 1920’s as a reaction to Formalism; a restricted and highly legalistic approach to law that emerged after the American Civil War. Naturalism Naturalism was overtaken by positivism in the eighteenth century but then enjoyed a resurgence in the twentieth century. This resurgence was partly due to the need to express a common humanity (think of the 1948 Universal Declaration of Human Rights for example) but also because of the work of theorists like Fuller who developed new approaches to naturalism. One other dominant theoretical approach we need to consider is positivism (we will consider in the lecture what this means in more detail). The work of more recent positivists like Hart and Kelsen (who we examine later in the lectures) presented new challenges to naturalist thought. Positivism separates questions of law and morality: it is possible to have an immoral law. This position, for obvious reasons, was questionable after WW2 and later in the module we examine the argument between Hart and Fuller on the question of Nazi law. Naturalism argues (in various ways) for a connection between law and morality. Other influences One of the philosophical influences on Fuller was Pragmatism (see, for example, the work of William James). There are many aspects to pragmatism and its influence on Realism is something we will explore later in the module. For now, a pragmatist might tell us that although there will always be a number of competing views of the nature or essence of a social phenomenon such as law, it is the idea of law that is the most compelling (i.e. the most workable), that influences us to improve as lawyers. We can see then that the Speluncean Explorers operates on a number of levels. It is an entertaining study of a “hard case”, it is a demonstration of competing theories of the nature of law and it also reflects pragmatist philosophy. Perhaps its most important message for law students is to show that theory does have a real bearing on judicial decision making since the particular theoretical outlook of a judge will inevitably influence their view of a case. This is not to say that all judges are active legal theorists, merely that our understanding of the world is mediated by theory and theoretical assumptions.

[2] The Opinions The following excerpts have been chosen to illustrate particular theoretical perspectives during the lecture. Note: these are not the only examples that can be found in the opinions of the judges and there is some overlap between the judges of their views. In each case try to determine which perspective is being illustrated.

[2.1] Justice Truepenny

“It seems to me that in dealing with this extraordinary case the jury and trial judge followed the only course that was not only fair and wise, but the only course that was open to them under the law. The language of our statue is well known: “Whoever shall wilfully take the life of another shall be punished by death,” NCSA (NS) § 12-A. This statue 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.”

[2.2] Justice Foster The Law of Nature “I take the view that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case, and that the case is governed instead by what ancient writers in Europe and America called ‘the law of nature.” “The theory that there are certain principles of human conduct awaiting discovery by human reason, with which man made law must conform if it is to be valid.” HLA Hart A State of Nature “I conclude that at the time Roger Whetmore’s life was ended by these defendants, they were, to use the quaint language of the nineteenth-century writers, not in a ‘state of civil society’ but in a ‘state of nature.’ The social contract “It has from antiquity been recognised that the most basic principles of law or government is to be found in the notion of contract or agreement.” “a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man.” See Locke, J Second Treatise on Government (II.4) “ … every tunnel, every building we project involves a risk to human life. [W]e can calculate with some precision how may deaths the construction of them will require … Yet we deliberately and knowingly incur and pay this cost on the assumption that the values obtained for those who survive outweigh the loss. If these things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which these defendants and the companion Whetmore found themselves?” “By utility is meant that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness, (all this in the present case comes to the same thing) or (what comes again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered: if that party be the community in general, then the happiness of the community: if a particular individual, then the happiness of that individual.” Bentham, J, Introduction to the Principles of Morals and Legislation, Chapter 1.

[2.3] Justice Tatting

[“Recuses”. Read and consider for yourself the arguments of Justice Tatting.]

[2.4] Justice Keen “In the discharge of my duties as judge, it is neither my function to address directions to the Chief Executive, nor to take account of what he may or may not do, in reaching my own decision, which must be controlled entirely by the law of this commonwealth.” “The second question I wish to put to one side is the that of deciding whether what these men did was ‘right’ or ‘wrong’, ‘wicked’ or ‘good.’ … The sole question before us for decision is whether these defendants did, within the meaning of N.C.S.A. (N.S.) §12-A, wilfully take the life of Roger Whetmore.” “It is enough to observe that … we have a clear cut-principle, which is the supremacy of the legislative branch of our government. From that principle flows the obligation of the judiciary to enforce faithfully the written law, and to interpret the law in accordance with its plain meaning without reference to our personal desires or our conceptions of justice.”

[2.5] 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.” “ … government is a human affair … men are ruled, not by words on paper or by abstract theories, but by other men.” “We should take as our model, I think, the good administrator who accommodates procedure and principles to the case at hand, selecting from among the available forms those most suited to reach the proper results … I believe it is only with the insight this philosophy gives that we can keep our actions in reasonable accord with the sentiments of those subject to our rule.” “It is perfectly clear then how the public feels about the case. We could have known this without the poll, of course, on the basis of common sense … “

[2.6] Some definitions Positivism “It may help to identify five (there may be more) meanings of "positivism" bandied about in contemporary jurisprudence: (1) the contention that laws are commands of human beings, infra, (2) the contention that there is no necessary connection between law and morals or law as it is and ought to be, (3) the contention that the analysis (or study of the meaning) of legal concepts is (a) worth pursuing and (b) to be distinguished from historical inquiries into the causes or origins of laws, from sociological inquiries into the relation of law and other social phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims, "functions," or otherwise, (4) the contention that a legal system is a "closed logical system" in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, policies, moral standards, and (5) the contention that moral judgments cannot be established or defended, as statements: of facts can, by rational argument, evidence, or proof ("noncognitivism" in ethics).” Hart, H, Positivism and the Separation of Law and Morals, HLR, Vol. 71 (1958), pp.593-529. Formalism

"Law, considered as a science, consists of certain principles or doctrines” Langdell, C,: A Selection of Cases on the Law of Contracts, 2d. ed. (Boston: Little, Brown, 1879), vii. Pragmatism and the beginnings of realism “The life of the law has not been logic; it has been experience.” Holmes, O.W. See his dissenting judgement in Lochner v. People of State of New York 198 U.S. 45 (1905) Realism (1) Law is in flux: (2) law is a means to social ends, (3) law lags behind society, (4) temporary divorce of “is” and “ought”, (5) law in established rules does not describe actual behaviour, (6) law in court decisions is not derived from rules but is a rationalisation, (7) distrust of verbally simple rules, (8) law should be evaluated in terms of its effects. Karl Llewellyn’s Legal Realism in Retrospect, Friedrich, C.J, Ethics, Vol 74, No. 3, p 205 F ur t he rRe a di ng: Th ea r t i c l e sb e l o wo ffe rf u r t h e rop i ni o n so nt h ec a s e . Asy o uc a ns e e ,i th a spr o v e dt obef o odf o r c on s i de r a b l et ho u gh t .T h ei mp o r t a n tp oi n ti st h a tt h er a n geo fpo s s i b l eo p i ni o nsh a si n c r e a s e da s t h e o r e t i c a lc on s i d e r a t i o nofl a wh a st h r o wnupn e wp e r s p e c t i v e s .F ore x a mpl e :e c o no mi ct h e or yo fl a w, f e mi n i s ma n dp o s t mod e r na p pr o a c h e s . T h eSp e l un c e a nEx p l or e r s F u r t h e rPr o c e e d i n g sb yAn t h on yD' Ama t o ,

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