EL CASO DE LOS EXPLORADORES DE CAVERNAS

To analyze the types of laws by which they are based, to declare the explorers guilty or
innocent, I will compare not only their thoughts, but also what each of them said.

1. Who is a positivist, who is a naturalist, a realist, a textualist, etc. basing on the various
arguments given by these five ministers.

a. Truepenny:
Being the first to testify, he does not have the opportunity to hear the appeal of
his other colleagues, because he is the one who exposes the case. He therefore
cannot defend his position against those of others, nor can he give his opinion
about that of others, as did the other judges.
Like all judges, they classify the information given to them as relevant or
irrelevant. In the case of Judge Truepenny he is the one who expands the most
in this area.
In the same way as his companions, he thinks that this case is one of the rarest
and most exceptional that he has had to face.
I think that from the beginning he declares them guilty, but does not sentence
them, until the end of their argument. Well, after exposing the facts, he
defends from the beginning that a crime has been committed, a murder. In his
story he begins with the following explanation "The language of our law is
well known: Whoever wants to intentionally deprive another of life will be
punished by death."
By declaring them guilty, he justifies the action taken by the jury and the
judge "followed a fair and wise path" according to the legal provisions, but he
does not do the same.
After this we can say that it is governed by a positivist law. So he says that
you have to apply the law, as in any other case. But throughout the narrative,
Truepenny contradicts himself when applying the law, on the one hand he
sentences them to the gallows and on the other he waits for clemency from the
executive branch.
And a third contradiction expresses that even asking for clemency, even
having classified this data as irrelevant → "A" special verdict "is drawn up.
He says that it would only be possible with the reopening of the case,
which he knows that the Executive, of course, cannot do.He omits the
possibility of the non-existence of the murder. On the one hand he
defends the letter of the law and on the other, he is afraid of committing an
injustice. He shows certain sympathies that he falsely pretends to show
 induce him to take sides taking into account the tragic situation these
people went through.

b. Foster:

From the beginning he expresses his opinion about the choice made by both
the jury, and Truepenny. He considers that condemning them by means of said
law is like "To declare that according to our law these men have committed a
crime, then our law itself will be condemned before the court of common
sense." He thinks that in order to solve this, we must guide ourselves on the
right path, to reach an agreement that generally favors men.
Foster contradicts himself by saying that positive law cannot be applied in this
case and then criticizes positive legal order for not treating this exceptional
case, and not even doing justice. He also contradicts himself by asking that the
accused be tried according to natural law but by positive law judges.
After this we can say that he is governed by a natural law because he is the
defender of a "true law consisting of right reason according to nature." He
interprets the reality of this case as a tragedy. He has a judgment of moral
value, that is why he does not condemn the guilty.
He argues that the moment explorers are trapped, they are no longer in a "state
of civil society", but in a "state of nature." In the same way as Tatting, Foster
comments on other cases to validate his votes in this case. When he considers
that the laws from outside cannot be applied inside the cave, he does not say
so because it is a fact, but because the creation of the covenant proposed
within it has to be taken into account. Foster contradicts himself by saying that
positive law cannot be applied in this case and then criticizes positive legal
order for not treating this exceptional case, and not even doing justice. He also
contradicts himself by asking that the accused be tried according to natural law
but by positive law judges. Only Foster and Tatting comment on other cases to
validate their votes in this case.

c. Tatting:
From the beginning of his story, he describes the emotions and feelings he has
regarding the case. He explains that the amount of mixed feelings makes it difficult
for him to position himself and make a statement. At the same time he feels
sympathy, towards these men in the same way that he feels revulsion. He says that he
hoped that he would be able to put aside these emotions and decide the case on the
basis of a logical and convincing demonstration of the result that our law requires.
He then condemns Foster's vote as fallacies and contradictions. In my opinion,
I feel that he criticizes that "Natural State" that has been previously spoken
about, because his position is reluctant to understand what they have exposed,
and it is more if I go a little further, I risk stating that he treats it in a sarcastic
 way. Well, the questions that he asks despite relating them to a case like that
of the 21-year-old boy, are questions that I don't think can be seen related to
this case. In the performance of his duties as a judge, he has not been able to
detach himself from his personal reactions and appreciations.Faced with the
facts, he feels capable of criticizing the votes of his colleagues as well as
defending the letter of the legal norm that is being applied. He questions
himself as a citizen, but forgets his role as a judge to issue a verdict. He
declares himself incompetent. He abstains from voting. Tatting says that even
in a state of nature a contract is not worth more than life.He is a positivist,
with a cowardly character because although he recognizes that the norm that is
applied is not enough, it is what there is, and he uses abstention so as not to
show that his vote is condemnatory. As he has not been able to recognize that
the legal norm that was applied was insufficient for that case, since he accused
his disgust for cannibalism but the legal norm did not contemplate this. The
only current rule that Tatting uses is the one that allows you to waive the
decisions of the Court.Although I wouldn't deny that I might be a bit skeptical.
It is true that one of the characteristics of this thought is the concealment of
the thought or verdict, with a different purpose than Keen has. He contradicts
himself by recognizing that the legal norm is insufficient for this exceptional
case and yet his vote of abstention twice cast hides his actual conviction.

d. Keen:
“I wish to emphasize that if I were the Chief of the Executive Branch, I would
go further down the path of clemency than the petitions addressed to him
propose. I would grant these men a full pardon, as I believe they have suffered
enough for whatever offense they may have committed. I want it to be
understood that I am making this observation in my capacity as a private
citizen, who has come to obtain an intimate knowledge of the facts of this case
as a result of his position. In the performance of my duties as a judge, it is not
incumbent on me to direct petitions to the Executive Branch, nor take into
account what it may or may not do to arrive at my own decision, which should
be entirely guided by the law of this Commonwealth. " This is how Keen
begins by showing his opinion of his verdict. I consider him a radical
positivist and legal formalist, with a rancid and perverse disposition. He is sure
that there is a legal norm, that he is a judge and he alone must apply it. He
applies the law depersonalized and without any question of conscience. He
does not express contradictions, but to justify his condemnatory vote, he omits
the evidence of the case: there is no body, the survivors were in a state of
shock, the legal norm does not contemplate self-incrimination, especially
when faced with an extreme situation . Anyway, he doesn't question himself
because he knows they don't know what happened inside.It recognizes the
supremacy of the Legislative Power and the power of the Judicial Power to
 apply the laws without questioning them. He thinks only of applying the law.
It is the only one that proposes the intervention of the executive branch in this
case. And he exposes the opinion of him as a common citizen. But he acts
without problem of conscience. He is convinced, by the rule of tradition, of the
supremacy of the Legislative Power. In his opinion, Foster mixes law with
morality and self-defense with crime, he does not question any of the facts.
Keen sees reality as a common citizen and that leads him to seek a total
pardon for all the accused because men have already suffered too much,
reaching that extreme attitude. But there is another reality for him, that of the
judge and that is why he condemns them

e. Handy:
He began by stating that it has never been possible for him to make his
colleagues see that government is a human affair and that men are governed
not by words on paper or by abstract theories, but by other men; and there is
good government when the rulers understand the feelings and conceptions of
the masses, while when that understanding is lacking, it translates into bad
government.
In this case, the minister affirmed that enormous public interest has been
aroused, which reveals what must be done if the Court wishes to preserve a
decent and reasonable harmony between itself and public opinion. Thus,
declaring the convicted innocent would not imply an unworthy trap, since it
would not be necessary to adopt any principle of interpretation of the law that
is inconsistent with the previous precedents, hence if it were the case of a
more detailed demonstration of the method to reconcile the decision with the
law, it would be enough to adhere to the arguments developed by the
colleague Foster in the second part of his vote, reason why the sentence had to
be revoked.It considers the facts from a sociological point of view, the
“media” repercussion of the case. He is concerned about the position of the
judge in the face of public opinion. He talks about abstract rules and common
sense (the least common of the senses ...) Handy has hints of leaning towards
sociological positions, to highlight the weight of public opinion, but the truth
is that what he seeks is to do justice through what he calls "practical wisdom"
and the use of the survey is only one way of showing that common sense
coincides with the idea of declaring the innocence of the accused. This
position could also be described as natural law now in his classical tradition,
since he proposes to discard the law whose application is unfair to impose a
solution discovered through practical reasoning. None like Handy considered
the weight that public opinion had on this case. Probably the law that most
closely matches your type of thinking would be legal realism. Nor did anyone
base their vote on lack of evidence. Only Handy "mediated" the case to
confront his colleagues with their own "double standards." Handy is the only
 one who expresses his vote convinced of innocence due to lack of evidence
and reviews the votes of the rest showing the confrontations. He talks about
the "darkening curtain" that his colleagues throw on the case, but he also does
it when he fills with public opinion, social clamor, polls, the image that the
Judiciary should give, and so on. All to force the vote of those who
condemned. He is the only one who questions the lack of evidence to apply
the judicial rule.

2. What function is assigned to the judge and to the legislator? Who should prevail?
Truepenny: As I said before, this judge is characterized by not wanting to convict as
guilty, not at least one hundred percent of the explorers. But I think that because of
how he presents his method from the beginning, he makes me think that he leans more
towards the finalist and realist, because he does not separate the powers, nor does he
apply the law firmly. But when it comes to declaring the explorers guilty, he is
governed by the norm and abides by it, therefore he is governed by Normativism and
accepts the norm of the legislator, following the Analytical Jurisprudence.
Foster: From the beginning, he considers that the choice made by his former partner
is inappropriate, and at that moment he presents us with a finalist and realistic
method, although he denies the law, and believes that in this case it is complicated to
apply, he does not declare that it could not be applied. a. But he finally opts for
Common Law.
Tatting: This judge, I think he has it even more complicated than the others. At the
beginning he tells us about the problem he has regarding how he feels about this case,
and this makes me think at first that his method is inclined towards the finalist and
realistic. But then by expressing that he does not understand the "state of nature" and
how he completely opposes it, he makes me think that he can put aside the moral part
of it, and focus on the rule of law. When he finally gives his verdict and presents his
statement as abstention, I understand that he rejects his right to vote, I interpret this as
that he decides to apply the rule without meaning to say it. Therefore he is governed
by Normativism and accepts the rule of the legislator, following the Analytical
Jurisprudence.
Keen: This judge from the beginning of his story has no doubt that his method is
more formalistic and conceptualist than that of the others. He thinks to apply the law,
therefore his thinking is normative, radical. He gives more importance to the legislator
and is governed by the Analytical Jurisprudence.
Handy: The method by which this judge is inclined is clearer than everyone's, it is
precisely the opposite of Keen's. This one opts for the finalist and realistic. So he will
apply the Common Law.

3. Give your own opinion in a critical and reasoned way, as a conclusion.

In my opinion I agree with many of the views of several of the judges. The first thing
I want to declare is that certainly a crime has been committed, because despite having
killed a person in order to survive a few more days, they committed a crime. Certainly
they made a pact that although outside it was not known about it, within what they
were living, such an atypical situation, the word of man was worth much more than a
law.
It is strange to me that none of the judges commented or even raised this that at the
beginning of the story they do not count “However, before the dice were thrown,
Whetmore declared that he was withdrawing from the agreement, because reflecting
better he had decided to wait another week before resorting to such a terrible and
hateful temper. The others accused him of violating the agreement and proceeded to
roll the dice.
When it was Whetmore's turn, one of the defendants rolled the dice for him, asking
Whetmore to make any objections as to the correctness of the roll. He stated that he
had no objection. The shot was adverse to him, he was later deprived of life and eaten
by his companions. " I am surprised that this was not taken into account, since despite
wanting to defend them, some classify the information and others do not. That this is
not classified as relevant information, makes me think On the one hand, I do not agree
with Tatting, it does not seem correct to me that he treats the proposition of the
"natural state" in such a sarcastic way. I do believe that this does happen when we
find ourselves in a situation like this, this state does not mean that one stops being a
civilized person, but rather that you understand how fragile the line that separates life
from death is. On the other hand I understand Truepenny, but not Keen, certainly the
thoughts of him in the same way that they go by the same branch, it is very different.
that they did not take into account the veracity of the explorers. They both want to
apply the law, with the difference that Keen gets a much more radical position, as I
said before, I condemn the crime, but my human and moral part is reflected in that if I
were the judge, I would not send them to the gallows. I understand that in that
situation it would be impossible for the case to be reopened, but if that were to
happen, I believe that the jail sentence could be substituted for an amount of time
behind bars, and not with execution. I believe that I would declare them guilty,
applying the law, allowing me as a judge to interpret it in the best possible way,
reducing the sentence. I would lean towards Common Law.