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Hurrelbrink, Michael --- "The Case Of The Speluncean Explorers: Digging Since 1949" [2019] WAStuLawRw 6; (2019) 3 Western Australian Student Law Review 71



Fictional Judgment—Murder—Jurisprudence—Legal Positivism—Plain Meaning—Natural Law—Consequentialism—Textualism

This article is based on Harvard Law Professor Lon Fuller’s 1949 publication of a fictitious judgment, set in the year 4300 in a fictitious jurisdiction. Fuller’s judgment presents a fantastic factual matrix of trapped cave explorers, starvation, cannibalism, rescue, politics and murder charges. Whilst an engaging read, its true value is not as a vehicle for entertainment, but rather as an exposé of the main legal philosophies of mid-century common law jurisdictions. Despite its age, Fuller’s piece retains currency for modern law students through its eloquent and concise summary of the competing theories of legal positivism and natural law. Within these overarching schools of thoughts, law students will find strong arguments in support of both theories, whilst recognising points relevant to current theories on textualism, judicial activism and the purposive approach to statutory interpretation. Part I of this article introduces Fuller’s publication. Part II provides an outline of the case’s facts and a brief limited summary of the judgments given. Part III consists of the author’s substituted judgment, presenting a judicial-activist stance tempered by a modern purposive approach to statutory interpretation.


In 1949, the Harvard Law Review published an article consisting of a fictitious judgment of a fictitious case, set in a fictitious jurisdiction in the year 4300.[1] Whether its author, Professor Lon Fuller, intended it or not, the impact of his 30-page judgment continues to ripple through law schools across the world and will arguably do so for generations to come.

Believed to be based on two tragic cases,[2] United States v Holmes and R v Dudley & Stephens,[3] ‘The Case of the Speluncean Explorers’ not only introduces students to the quirky word ‘speluncean’ (cave-explorers), but also to an excellent synopsis of competing legal theories. Based on a confronting tale of trapped cave explorers whose desperation leads them to sacrifice one of their own to survive, Fuller’s piece consists of the competing judgments of the fictitious appeal of the death sentence placed on the survivors.

Fuller’s article places readers in the shoes of a hypothetical fifth judge who must give the deciding judgment for an otherwise evenly split bench whose determination will either spare or execute the survivors. By combining the most extreme of punishments, extenuating circumstances, and a prima facie absolute law, readers must reconcile what they want from the law through their own personal worldview; that is, what they feel would be just from the courts and society. This article contributes a possible fifth judgment, which supports a legal philosophy of judicial activism tempered by a modern approach to statutory interpretation.


A The facts

Set in the distant year of 4299, in the fictitious ‘Commonwealth of Newgarth’, a group of five spelunceans are trapped deep in a cave following a landslide. Having only planned for a short expedition, the spelunceans have finite resources to sustain themselves, but fortunately, they have a radio they can use to communicate with the outside world. The rescue mission is of such a scale that funding was provided by public donation and government grant. However, the rescue journey proved to be perilous, with ten rescuers dying in the process.[4]

Given their health and limited rations, a physician advises the spelunceans that they are likely to all perish before they are rescued.[5] The spelunceans ask whether cannibalising one of their own would secure the survival of the remaining members, and they are told it would.[6] After their request for legal advice on the matter goes unanswered, the spelunceans go ahead with the dastardly deed and are rescued, charged with murder, found guilty and, with Newgarth’s mandatory sentencing to death by hanging for murder, are sentenced to die.[7]

As if the facts were lacking, it is also noted that the person who came up with the idea of cannibalising one for the survival of the others and devised the system for choosing the victim, was also the one chosen, having, at the last moment, withdrawn from the process of deciding. The contextual background of Newgarth’s history is also relevant, with the judgments noting how previous judicial activism had led the Commonwealth of Newgarth to civil war.[8]

B The Judgments

Truepenny CJ gives the first judgment and provides the bulk of the facts relating to the case. Truepenny CJ’s judgment reflects the positivist school of thought, based on the belief that the law should be applied literally as it is, not how it was intended to apply.[9] Truepenny CJ upholds the death sentence but also points to the possibility of the fictitious ‘Chief Executive’ exercising their executive discretion to commute the sentence to one of imprisonment.[10]

Foster J gives the second judgment,[11] focusing on the concepts of ‘positive law’, being the law intentionally created by society, and ‘the law of nature’,[12] which is the law that arises naturally from circumstances; which for the spelunceans was one of ‘do or die’.[13] Foster J also elaborates on the purposive approach of legislation, to ultimately overturn the sentence and hold the accused as innocent.[14]

Tatting J gives the third judgment and, like Truepenny CJ, takes a positivist approach while acknowledging the deterrent objective of the criminal law.[15] Unlike Truepenny CJ, Tatting J’s inability to resolve the conflict between his personal views and legal views leads him to withdraw from the case.[16] It is into this vacuum that readers are drawn to contribute their own judgment, noting that their substitute judgment ultimately decides the matter, with the decision to overturn the sentence split two-two.[17]

Keen J gives the fourth judgment and begins by excluding considerations of both clemency, as put by Truepenny CJ, and the concepts of ‘right’ and ‘wrong’.[18] Keen J’s judgment reflects a stark positivist approach and dismisses the idea of a judge being able to ascertain the purpose of statute. Ultimately, Keen J rejects judicial activism in all forms and upholds the death sentence.[19]

Handy J gives the fifth and final judgment for the case. Handy J is the greatest judicial activist of all, placing public opinion on the case above the law itself, and overturning the sentence because that is what the public wants.[20]


Hurrelbrink, A.J. The invitation to come out of retirement to sit on such an important case is an honour; albeit a tainted one, necessitated by the withdrawal of Tatting J. Given my late arrival, the facts have already been well established, and some of my brothers might say that I am left with the deceptively simple task of deciding whether the law has been broken or not. Arguably, once that decision is made, in the affirmative or negative, the availability of only one prescribed punishment means my job is done.[21] This view is attractive in its simplicity and purity; however, it puts the role of a judge as nothing more than that of a soulless robot which applies the law coldly, void of all humanity. I reject that proposition outright, just as I reject any decision that would see these men face death. It is somewhat surprising to see some of my learned colleagues have chosen to uphold a law blind to the society for whom those laws were made.

Unfortunately, this confronting case has drawn from this bench a range of views so broad that, were they used to introduce a visiting foreigner to our judiciary, it would lead that foreigner to believe our society was at worst, in chaos; or at best, teetering on the edge of it. In my response to this discord, I remind us all that an elementary purpose of law is to serve the society in which it functions and illustrate this through a hypothetical scenario. In light of this purpose, I then turn to outline the nature and weaknesses of upholding public opinion and conclude on how the unique circumstances of this case before this bench makes public opinion a worthy consideration.

Despite the force of Keen J’s argument that the law should be applied according to its plain meaning, ignoring whether it is ‘right or wrong, desirable or undesirable’,[22] and ignoring any notion of ‘purpose’,[23] my brother Foster J gave perfect examples in Commonwealth v Staymore and Fehler v Neegas which show that blind servitude to the law, in the absence of any purpose, becomes illogical when applied to reality.[24] Arguably, the underlying purpose of all law is to serve society.[25] No society would create laws contrary to its interests; and if they did so unintentionally, they would revoke or amend them when such conflicts became evident.[26] By recognising law as a creation of society, it becomes obvious that law was made to serve society, and not the reverse.[27] This view does not place any individual or group above the law, but rather refuses to place the law above society as a whole. When it is acknowledged that the validity of law is based on its service to society, and not to itself, it can be seen that laws are no longer valid when their application is contrary to the interests of society.

It is principally the role of the legislature to create the laws which serve society, and therefore it is not the place of the judiciary to usurp that role. However, it is beyond even the legislature’s ability to foresee all instances in which our laws may act against our own interests with perfect foresight. When such instances occur, the timeframes required to amend legislation may not allow us to avoid unforeseen negative consequences. As noted by Keen J,[28] the discharge of the judicial function does not carry with it the option of applying the law and using the death of these men as a way of forcing a legislative review of a statute one plainly wishes were different. Keen J argues that such a revision would ‘draw on the assistance of natural philosophers and psychologists’[29] and produce a far superior statute than the one we have before this bench.

I wonder whether my learned brother is aware of his contradictory suggestion. The contradiction lies in that with one hand he holds legislatures of past and present as beyond reproach and then, with the other hand, suggests their imperfections should return them to the drawing board, but this time with assistance from adequately qualified professionals. Suggesting such a review assumes that the laws were originally made by persons less than qualified. With the greatest respect, is his Honour suggesting the great efforts invested by the legislature in the first round of law-making is somehow inferior to that used in the subsequent round of legislative revision, and that when laws are first made, they are not already being made with the assistance of the greatest minds of our Commonwealth? It is trite knowledge that it takes much time and effort to instigate, consult, review, and refine legislation and, as with most jurisdictions, with respect, our legislature struggles to meet the legislative demands of creating new laws, let alone revisiting the many enacted laws whose purposes are correct but not perfectly encapsulated in the written word of the law.

Even with revisions of the law, no amount of human effort can guarantee against further unforeseen circumstances. When we change a law to address one legal issue, we may unwittingly be setting ourselves on a trajectory towards even larger problems. What then? Will we again rely on the blood of innocent victims to lubricate the wheels of legislative revision? Arguably, in such cases, the judiciary can deal with these unique situations quicker than the legislature, as they arise, without requiring a law to be rewritten from scratch.[30]

It is these cases in which the judiciary should interpret and apply written laws, not with the goal of serving the law, but of serving the very society served by our legislature. As the judiciary we are not obliged to pursue this goal in the antagonistic fashion of our predecessors,[31] but are capable of doing so in a co-operative manner.

Imagine, for example, that centuries ago the judiciary of our ancestors was in opposition to certain laws and were threatening judicial activism, not through judicial rulings, but through judges withdrawing from all cases so that rather than applying laws they disagreed with, no laws were applied at all. Such a threat, if carried out, would create a state of lawlessness and inevitably lead the Commonwealth to anarchy and collapse. Say the legislature responded to that threat with an emergency session of parliament to pass a law which punished any judge that withdrew from a case, or any accompanying judge that did not act to prevent that withdrawal, with death. Say this threat never materialised but the statute was left, not to prevent judges from withdrawing for valid reasons, but as a safeguard against organised revolt. As noted by Tatting J, his withdrawal may be a precedent,[32] making it understandable if this statute was subsequently forgotten amongst the millions of statutes that our Commonwealth has accumulated over the centuries.

What if this statute was brought to our attention today? Would we want that law to be applied, knowing full-well that neither its age nor obscurity made it any less a law than the statute we are now considering? I invite my brothers on this bench to reconsider their staunch application of this law, and have the case dismissed on the grounds that applying this law would not serve society in any way.

Regarding Foster J’s views, his ‘state of nature’ argument would become inapplicable;[33] however, his views on the ‘evident purpose’ of law remain applicable and join in chorus with my own views.[34] Tatting J, who withdrew from this bench on this occasion, may wish to plead ignorance of the law, as I am sure the speluncean defendants would have liked to, having sought legal advice and having been denied it,[35] but this is clearly not an option in either case because ignorance of the law is no excuse. Arguably, Tatting J would struggle to sustain the perfect balance he holds between a desire to apply the law and his repulsion at the absurdity of the outcome, as he did when he withdrew from this case, and would inevitably see the judicial scales tipping towards an opinion of legislative intention which would see this case dismissed and the defendants freed.

As for Keen J, his eloquent arguments concerning the lives of those before us would arguably change if the life in question was his own. It might be said that he would promptly perceive the flaws of his legal philosophy and agree that the law is more than a collection of plain meaning words that we must follow blindly over the cliff’s edge.

In reading the judgment of Handy J, I find myself with the closest thing to an ally. I do not seek to restate his reasoning, other than to say his views on public opinion might be bolstered through the critique I shall provide. In returning to the hypothetical scenario, it can be seen that if society was at the service of law, and not the other way around, we would apply the plain meaning of the law without further consideration, benefiting law by reconfirming its absolute power through the execution of five judges who broke the letter of the law. As a society, there would be no benefit in this; in fact, losing their combined education, experience and service would leave society far worse off, not to mention the personal losses to the judges and their families. This argument does not ignore the benefits of applying the law, like ‘retribution’ and ‘deterrence’, as put by Tatting J,[36] but focuses on applications of the law which produce no benefits, only losses for our society. When this happens, as it does in both my hypothetical case and the case before us, the reasons for applying the law become invalid and the law is no longer applicable. On these grounds alone, I would set aside the conviction and sentence.

In returning to Handy J’s statement,[37] I agree with his Honour’s consideration of public opinion but am cautious in embracing it as widely as my learned friend.[38] Public opinion is to be taken into account only so far as it can be considered society’s views. As a democratic Commonwealth, the wellspring of our legislature’s legitimacy is the ballot box, the ultimate expression of public opinion and an opinion with which the legislature is ultimately charged with expressing through its legislation.[39]

Election outcomes may be viewed as an authentic representation of society’s views because they serve as a proxy for a considered and well-informed public opinion. This conclusion is based largely on the premise that for elections, the public have pondered their decisions for a considerable amount of time, are generally well informed about, and invested in, the proposals put forward. They are also held as having contemplated and debated the matter, both in public and private forums.[40] If any of these factors were lacking, then there would be real grounds to contest any election.

Public opinion, on the other hand, is often so whimsical and uninformed that any court should be loath to consider it except under the most unique of circumstances.[41] However, it cannot be claimed that the public opinion considered by Handy J is either whimsical or uninformed. The cave-in, rescue, and subsequent court proceedings have been on the minds of the entire Commonwealth for a considerable time. Politicians, public figures and private individuals have debated every aspect of this case in public and private spheres since the day the plight of the speluncean explorers was known. That awareness and debate has been so great as to put the weight of public opinion on par with any election we have ever held. The judicial consideration of public opinion is so unique in this case that the risk of our laws or legislature being undermined by judges consistently deciding the law base on public opinion is so slight as to be insignificant.

On these grounds, I would set aside the conviction and sentence.[42]


[*] DipInterp, BA (Pol&IntSt and PublicPly&Mgt). Michael is a second year law student at Curtin University.

[1] Lon Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616.

[2] David Shapiro, ‘The Case of the Speluncean Explorers: A Fiftieth Anniversary Symposium’ (1999) 112 Harvard Law Review 1834, 1836.

[3] United States v Holmes [1842] 1 26 Fed. Cas. 360; R v Dudley & Stephens (1884) 14 QBD 273.

[4] Fuller, above n 1, 616–17.

[5] Ibid 617.

[6] Ibid.

[7] Ibid 618–19

[8] Ibid 633.

[9] Ibid 616–9.

[10] Ibid 619.

[11] Ibid 620–6.

[12] Ibid 620.

[13] Ibid 625.

[14] Ibid 624–5.

[15] Ibid 626–31.

[16] Ibid 631.

[17] Ibid 645.

[18] Ibid 631–7.

[19] Ibid, 637.

[20] Ibid, 637–44.

[21] The lack of options, other than release or execution, precludes readers from ‘sitting on the fence’.

[22] Fuller, above n 1, 634.

[23] Ibid 635.

[24] Ibid 624. The cases referred to are fictitious cases presented in Fuller’s article.

[25] Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333, 343 [12] (Gleeson CJ).

[26] The ability to change laws, or their application, is not limited to the legislature. Changes may occur during several stages of the legal process, including when deciding to police a law or not, the decision by public prosecutors to pursue charges or not, the judicial application and interpretation of law, and executive clemency.

[27] This is a case of ensuring the creator does not become the servant of the creation. This claim does not attempt to put any individual above the law; laws are not created by individuals they are created by society, as a whole, through the legislature.

[28] Fuller, above n 1, 637.

[29] Ibid.

[30] Stephen Lumb and Sharon Christensen, ‘Reading Words into Statutes: When Homer Nods’ (2014) 88 Australian Law Journal 661.

[31] Fuller, above n 1, 633.

[32] Ibid 631.

[33] Ibid 620–2.

[34] Ibid 624.

[35] Ibid 617.

[36] Ibid 628.

[37] Ibid 637–44.

[38] Ibid.

[39] See JA Stimson, MB MacKuen and RS Erikson, ‘Dynamic Representation’ (1995) 89(3) The American Political Science Review 543.

[40] See RD Congleton, ‘Informational Limits to Democratic Public Policy: The Jury Theorem, Yardstick Competition, and Ignorance’ (2007) 132(3-4) Public Choice 333.

[41] DJ Mallinson and PK Hatemi, ‘The Effects of Information and Social Conformity on Opinion Change’ (2018) 13(5) PLoS One.

[42] While not within the scope of this article, the consideration of these issues led the author to contemplate existing legal solutions. I consider that for our time and jurisdiction, the most appropriate course of action is to convict and release without sentence, as provided by s 46 of the Sentencing Act 1995 (WA). See, eg, Riggal v State of Western Australia [2008] WASCA 69, 52–67.

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