Speluncean Explorers:

Summary of the Speluncean Explorers Case:

 The four defendants and the deceased were part of the ‘Speluncean
Society’, an amateur cave-exploration organization, and became trapped in
a cavern as a result of a landslide. The remote location made rescue
difficult, time-consuming and expensive. Ten workmen were killed in the
rescue.
 In addition to the Society’s funds, it took an additional 800,000 ‘Frelars’
(i.e., the currency of the Commonwealth of Newgarth) provided by popular
subscription and legislative grant to rescue the explorers. After 32 days,
they were rescued.
 Early on it was recognised that death by starvation was a possibility. On the
20th day, it was realised that the explorers had a two-way radio of sorts
and oral communication was established.
 The engineers informed the explorers that at least 10 more days would be
needed to rescue them. Upon further inquiries, a team of medical experts
informed that explorers that considering the conditions and rations inside
the cave, the chances of survival for a further 10 days were remote.
 The explorers asked whether they would survive if they resorted to
cannibalizing one of the number. It was reluctantly confirmed they could.
Whetmore asked if casting lots as to whom should be eaten was advisable;
no physician, judge, government official, minister or priest would provide
an answer.
 No further messages were received from within the cave. When the
explorers were released, it was learned that on the 23rd day after entering
the cave, Whetmore had been killed and eaten.

Justice Truepenny
 acknowledges that no exception to the statutory provision applies,
regardless of how sympathetic people may be
 prefers to rely on possible executive clemency, described as ‘mitigating the
rigors of the law’
 Justice can be done in this way, without disregarding either the letter or
spirit of the law
  Justice Truepenny's opinion was the most cut-and-dried: the defendants
clearly violated the statute and thus there was nothing for the court to do
but to find them guilty of murder.
 He urged the Chief Executive, in the strongest possible terms, to pardon
defendants.

Justice Foster
 argues that law implicates morality
 de- ploys the purpose-of-the-statute theory
 holds that the explorers were outside the jurisdiction of the
Commonwealth: ‘If we look to the purposes of law and government, and to
the premises underlying our positive law, these men when they made their
fateful decision were as remote from our legal order as if they had been a
thousand miles beyond our boundaries.’
 Purposive interpretation- distinct approach
 “Purpose of criminal law is deterrence”- Deterrence theory, Retribution
theory and Reformative Theory- Criminal law theories
 Self-defence- well recognized exception to murder, “Man won’t think about
law and its deterrence when life under threat- immediate reaction to
protect
 Self-Preservation- You have to do this to save yourself, no deterrence –
Instinct to preserve yourself/ your life.
 The explorers were ‘not in a “state of civil society” but in a “state of
nature”’ and consequently the laws of the Commonwealth of Newgarth do
not apply. The principles of law to be applied are those that were
appropriate to their condition, and ‘under those principles they were
guiltless of any crime.’
 concerns the interpretation of the statutory provision and promotes an
approach to statutory interpretation identifiable as the ‘purposive
approach.’
 2 specific precedents-
o Car Parking Example- Commonwealth v. Staymore, conviction set
aside even though case fell under the exact wording of statue
o ‘NOT’- Human omission and literal meaning
 This Court refused to accept a literal interpretation of the
statute, and in effect rectified its language by reading the word
"not" into the place where it was evidently intended to go.
  The maxim cessante ratione legis, cessat et ipsa lex - The principle that
when the grounds that gave rise to a law cease to exist, the law itself
ceases to exist.

Justice Tatting
 Can be said to reflect the legal theory of deep uncertainty in the law. He
noted strong objections to all the arguments that had been made, both
those in favor of convicting the defendants and those that favored
acquittal. Torn by this uncertainty, he withdrew from the case.

Justice Keen
 Keen's plain- meaning opinion conceptualizes the enterprise as nothing
more than implementing the positive law enacted by the legislature
 separating law from politics and morals
 He was a positivist in the grand Bentham-Austin tradition.
 believed that a judge should simply apply the words that the legislature
has enacted into law in the form of a statute. The murder statute has no
exceptions; therefore, the defendants have violated it.
 No judge should allow his personal feelings to enter into a case- he began
his opinion by saying that if the decision were his to make in a private
capacity, he would not hesitate to free the defendants.
 But because he is empowered to make the decision in his public capacity
as a judge, he has no choice but to find the defendants guilty.
 Judges are not to apply their conceptions of morality, but to apply the ‘law
of the land.

Justice Handy
 argues that law is politics
 theory was one of legal realism
 He uses Foster J as a prominent example of judicial reform of legislative
enactments. The process of judicial reform is described as being in three
steps:
o assigning or divining a single purpose for a statute (despite no single
purpose existing in any statute),
o discovering that the legislator ‘overlooked’ or omitted something
from the statute, and
o filling in the blank that is created as a consequence.
 He states that Foster J’s interpretation is flawed because Foster J is
attempting to include some purpose not revealed in the statute, but goes
further than Tatting J. He does not believe the purpose needs to be
explained any further than being a ‘deeply-felt human conviction that
murder is wrong and that something should be done to the man who
commits it.
HLA Hart
Ian McLeod