Speluncean

Explorers
 FACTS
● There are four defendants in this case, stuck in a cave along with another person, Roger Whetmore

● A rescue operation is called and in the ensuing operations, 10 workmen are killed in a landslide

● On the 32nd day, they finally rescue the men in the cave

● On the 23rd day, after communication was established between the defendants stuck in the cave and the authorities outside,

Roger Whetmore was killed by the four defendants

● Whetmore was the person who proposed that one person be killed by throwing dice

● The trial court tried the case, and the four defendants were sentenced to capital punishment, as the law of the Commonwealth

does not provide any other discretion

CHIEF JUSTICE TRUEPENNY

● Truepenny holds the course taken by the trial court to be fair and wise

● Only open course

● He acknowledges that there is no exception to the statutory provision

● Recommends clemency

● Acts as a legal positivist

 LEGAL POSITIVISM
● Legal Positivism is a legal philosophy that law is a social construct.

● Content of law depends on social facts and not on merits

● It emphasises that law is a set of rules and norms established by human authority

● Law should be separated from morality

● Textualism involves the application of the law without observing the merits or demerits of it

● From a positivist approach, laws are valid not because they are rooted in legitimate authority or natural law, but because they are

enacted by legitimate authority and accepted by the society

● associated with John Austin, Hobbes, H.L.A Hart

 JUSTICE FOSTER
● Foster believes the defendants to be innocent

● Foster applies natural law in contrast to the positivism applied by CJ Truepenny

● Natural law should be applied in this case, as the defendants here have entered into a state of nature on the basis of the maxim ‘Cessante

ratione legis, ceassat ipsa lex’

● The law of Newgarth will not apply in this case, as the defendants were no longer living in civil society, but rather in a state of nature

● The basis of any society is a contract- here the contract was made in form of the throwing of the dice

● He also says that ten lives have been sacrificed for the lives of 4, so why should the sacrifice of one be a crime?

● Foster also applies the concept of self defence- starvation should be considered as a self defence
 NATURAL LAW

● Natural law, in contrast to positive law, uses relates morality with law

● Law is derived from the nature of human beings and the nature of the world

● Authority of legal standards necessarily includes the considerations of the moral merits of these standards

● Law does not depend on human made laws or cultural norms

● Thomas Aquinas
 JUSTICE TATTING
● Tatting J withdraws from providing a decision in this case

● He finds it unable to separate the emotional aspects and the intellectual reactions of this case

● He criticises Foster’s natural law argument- there is no clear basis for the state of nature

● He questions the source of natural law, and argues that the court of Newgarth very well have the power to administer the laws of the

Commonwealth

● He deconstructs the argument of self defence of argued by Foster- a man whose life is threatened does not act wilfully, but the

defendants here have acted wilfully

● He is also unable to remove the culpability of the explorers entirely

 JUSTICE KEEN
● Keen criticises the recommendation of clemency offered by CJ Truepenny

● He considers this to be a breach of breach of powers

● He also argues that morality should not be considered in this case, but that the laws of the land should be applied

● He criticises Foster’s J approach of using natural law

● He also criticises Foster J’s attempt to find new purposes to the law

● Believes that the defendants must be punished for their acts

 JUSTICE HANDY
● Justice Handy uses legal realism

● He is of the opinion that an approach to law must not be detached from the situation at hand

● He discusses the publicity surrounding the case and the public opinion

● He is of the opinion that the defendants must be acquitted to keep the accord

● He claims that by common sense, the defendants must be acquitted