The Case of the Speluncean Explorers

The Case of the Speluncean Explorers is a very famous story used by most western Law Schools as a means of introducing some fundamental concepts related to Law and how we deal with each other in society. Yesterday, we took a look at the story, and for today I have asked you to identify the verdict to which you would most closely ally.

CNN Photo of Chilean Miners

Please provide your rationale as to which justice you would support and why. Be sure to think critically about this: What are the significant issues? Is your logic sound? Are you clear? Is your analysis accurate? For a greater understand of critical thinking, check out the Critical Thinking Foundation.

Also, please assume that there can be no constitutional challenges.

We will have some guest bloggers, so be nice!

I would like to wrap this discussion up by Monday. Please remember that I will be assessing this according to this assessment criteria and that you should be commenting on what other bloggers are saying.


21 thoughts on “The Case of the Speluncean Explorers

  1. I agree with J. Foster. The defendants were clearly in a state of nature, and so were operating under natural law, and not the law of the Newgarth. Under this state of "natural law" they broke no rules, and so should should be punished according to what natural law says (no punishment). This makes the most sense because the people who were trapped were only trying to survive, and in my opinion, that should not be against the law in this state of nature.Silas

  2. This is a very intricate case, which includes many facts and implications which make it imperative to answer difficult questions to do with the role of wrote law, humanity and morality in terms of justice. There are a few questions which stick out in particular for me though. Firstly, we need to figure out what role morality has in law. In terms of our current legal system (which we can assume the courts of Newgarth are based upon), laws are created to represent society’s collective morality with enough flexibility for judges to make calls to fit the circumstances of the case. In terms of regular cases, this is an excellent tool, which keeps the verdict arguably fair depending on the circumstances. However, this is not a regular case, as Truepenny especially argues, pointing out the necessity to avoid setting a precedent which permits murder. Furthermore, the judges, with the exception of Justice Keen, have a serious difficulty separating themselves and their emotions from interfering with the verdict, most notably Justice Tatting, who recuses as a result. Because of this inability to separate themselves, their verdicts should probably be rendered dubious in terms of the public morality they had been elected to represent. This brings us to our second quandary, the morality in hanging the men considering the events inside and outside the cave. Let’s consider the events outside to begin with. We know that the excavation and rescue was very costly, both in terms of money and human life. As such, we can assume that the public and the government thought it was very important to save the lives in question. With that in mind, let’s consider the events inside the cave, wherein we have two ways to think about the killing. The first would be to assume that the rescue efforts serve as proof that the lives of the people within the cave was of the utmost importance (especially considering the human cost involved in the spelunkers’ rescue), under which it would be counterintuitive to sacrifice their lives, especially because it was for the sake of their lives that they committed the crime. On the flip side, murder is a serious crime, and considering the fact that Whetmore withdrew from the arrangement, it was not a fair or fully democratized decision. Consider it in your own life: If Canada held a referendum to eliminate a fifth of the population of Canada, yet one fifth withheld their vote because they thought murder was wrong, would it be morally right to go on with the killings? Furthermore, I would like to disagree with Silas’ comment that they were in a state of nature. The first reason for this is the uncertainty as to what threshold was crossed to put them in that “state of nature” as is discussed by Justice Tatting. However, in my opinion, there is another reason entirely. Upon hearing about their predicament of survival, they immediately look for guidance from people who could tell them whether or not it would be legal in this case to kill another. This means they wanted to abide by Newgarth law, making them liable under the Newgarth Legal Code. Whether the circumstantial laws came or not is irrelevant, the fact of the matter is that they knowingly broke Newgarth law as they knew it to be. In the end, I would associate myself most closely with Justice Handy. Her advocacy of common sense makes the most sense in this case, and her sensitivity to the opinion of the public only serves to make her verdict more just under the principles of the Newgarth courts. This distinction clears up uncertainty in terms of the letter of the law, as well as the spirit of the law, because, as previously stated, law is based on a collective morality, which she accounts for. Finally, she also recognizes that it is the role of the courts to make these decisions, and doesn’t try to pass off the decision to some other party.Stephanie

  3. On extensive review of this case I've decided that I must concur with Justice Keen. During my analysis of this case I evaluated each factor according to my personal understandings of the concepts of morality and justice and in accordance with Newgarthian law. Firstly I will address this case solely on the basis of law. If we simply examine the facts we see that the four survivors of the Speluncean planned and executed the killing of Roger Whetmore while under the jurisdiction of the Commonwealth of Newgarth. Under normal circumstances this would be enough to secure a conviction, however every justice has brought up the issue of the duress experienced by the killers. The popular claim is that the threat of death upon these four men was enough for them to be justified under the law in the murder of Roger Whetmore, yet this is simply not the case. Let us consider another hypothetical case; a man with a defective heart is hospitalized and given only five days to live by his trained physician. This man, under the duress of death, decides to walk one room over to another terminally ill man who has a functioning heart. The man with a defective heart uses a pillow to suffocate the other man until he is dead to claim the functioning heart for himself. It is clear in this case that what the man is doing is murder. Legally, we should use a similar trail of logic in this case. The 4 men on trial were under duress, but their hands were not forced. This duress does not justify murder under the law and therefore I find these 4 men to be guilty of murder in the highest degree. Secondly, I would like to address the moral issues of this case. The popular opinion of the other side of the argument is that it does not make sense for all five people to die if the death of one can save the others, yet once again this argument does not stand up to closer examination. Firstly, although diagnosed by a physician, there was no guarantee that they would die before rescue reached them. The morally correct action would be to try to survive as long as possible before resorting to harming another human being. Secondly, let us refer back to the previous example of the terminally ill man. What if there had been four terminally ill men who could all be saved with organs from the one. Morally, the suffocation and subsequent murder of the one man is not the correct course of action, even if it saves the four others. Put simply, it is never right to murder another innocent human being to save yourself or others. Finally, I’d like to address the issues related to justice. Personally, I believe that capital punishment is never an acceptable punitive measure. However, due to my analysis of both the legal and moral aspects of this case, some form of punishment is necessary for these four men. What they did was wrong both legally and morally and some sort of retribution is necessary. Although capital punishment is an extreme punitive measure, to uphold the concept of justice in this case, the conviction must be affirmed.In response to my colleague, Silas’s comment, no I do not believe that the Speluncean explorers were in a state of nature. They were both inside the boundaries of the Commonwealth of Newgarth as well as in contact with people on the surface. Newgarthian law was still in full effect for these four menIn response to my colleague, Stephanie’s comment, you’ll find that common sense usually has little bearing on the subjects of morality, justice and law. Such a utilitarian approach to this case as “the ends justify the means” is simply not acceptable. We must always remember that in matters of morality, justice and law, people are to always be considered as “ends” and not “means.”Jason Wolter

  4. Normally, I would agree with Silas in that they were acting upon base instinct and knowledge, which we would consider to be natural law. In this case however, there are a few major isssues which call into question the morality and legality of their actions. First of all, the main reason that people are asking the Chief Executive to grant clemency is because they feel that the tragedy of the situation that the men found themselves in drove them to desperate measures, and that they should not hang for trying to keep themselves alive. J. Truepenny said "our sympathies may incline us to make allowance for the tragic situation in which these men found themselves", and I find that this statement sounds like an excuse for them to drop the charges while ignoring the tragic death of Whetmore. While our sympathies may allow us to lesson the sentance, we cannot ignore the fact that they killed another human being while still legally under the jurisdiction of the Commonwealth of Newgarth. Whetmore and his companions were told by the chairman of the physicians' committee that they would not survive the 10 days that it would take to rescue them from the landslide, and this news drove them to consider more drastic options in order to ensure their survival. Whetmore and his companions talked amongst themselves in an attempt to exhaust all possible options before resorting to more drastic measures. They consulted with a physician who told them that consuming the flesh of one of their members would allow them to survive until their time of rescue. Stephanie stated that because they asked for guidance on the legality of their actions, they should be liable under the Legal code but through the statements of the defendants. The statement however said not that they were asking whether or not it was legal, but "whether it would be advisable for them to cast lots to determine which of them should be eaten". I have no doubt that they were aware that their actions would have consequences, but I do not think the consequences were their primary concern, as their focus would have been on survival. I do agree however that by questioning the physicians, they proved themselves to be in a sound state of mind, which under the law would make them liable for their actions. I think however that the biggest issue in this case is the idea of consent. I believe that Whetmore's withdrawl from the arrangement caused the later actions of his companions to be seen as murder, rather than self-preservation, due to the fact that they knowingly took a human life for their own personal gain against the whishes of said human. Had Whetmore given his consent, it would (and should) have been taken into consideration and would most likely have changed the results of the trial. There were alternative routes that the defendants could have taken, such as simply excluding Whetmore from all parts of the agreement, or waiting for another week like Whetmore suggested, both which would have left Whetmore alive, or at the very least he would have died of natural causes. As Jason said, "The morally correct action would be to try to survive as long as possible before resorting to harming another human being". After reviewing the facts as well as the statements of the judges, I would have to say that I agree with J. Tatting and J. Keen in their arguments against the defendants. A main point of both of their statements was that the language of the law. To quote, 'The exact language of the statute is as follows: "Whoever shall willfully take the life of another shall be punished by death"'. Both Keen and Tatting pointed out that the statute concerning murder requires a "willful" act. The man who acts to repel an aggressive threat to his own life does not act "willfully," but in response to an impulse deeply ingrained in human nature…..

  5. …….These men acted not only "willfully" but with great deliberation and after hours of discussing what they should do. The fact that these men went directly against the definition of the statue with which they are charged with breaking leaves us with few options. The argument set forth by the court is whether or not the defendants broke the law. Though I do not personally believe in the death penalty, their actions are in direct violation of the law, therefore I believe that the conviction should be affirmed.

  6. I disagree wholeheartedly with Silas’s response to the case; there is no such thing as a “State of Nature”, at least when one is within the borders of a state which possesses laws, and thus these people should be punished to the full extent of these laws. Disregarding the issue of whether the contest to determine which of them would be the victim was fair; I will instead discuss the issue of self-defence. We do not know the particulars of the self-defence laws in Newgarth, however in Canada, it is not legal to attack another in defence of your own life unless he or she has provoked you first. Despite this fact, many people believe that the Speluncean Explorers should not be hanged, despite the Newgarthian code stating that all murderers will hang. In this, I agree with Justice Keen. The law, at least the (presumably) simplified version that we learn of in the case, is quite clear, and the interpretation of that law should have nothing to do with morality. If there will be a clause added to the law later, then perhaps it shall be added, however at the moment, the law is quite simple; all who commit murder will hang. The other justices claim to interpret this law, however they let their morality get in the way of justice, and their emotions sway them towards leniency. In this matter, it is clear that the interpretation of the law by the justices, at least those who would reverse, is not truly an interpretation of the law as it was written, but an interpretation by the judges of the situation. It is as if justices such as Handy have completely ignored the law; they are doing what they believe to be right in the situation without even bothering to consult the law as it is written. For these reasons, I believe that Justice Keen has the best solution to the problem, and that the case should be affirmed.

  7. I disagree with Mitch and completely agree with Silas. If the defendants weren't in a state of nature what else would you call it? With this in mind they were only using natural law as they didn't have another law to go with? Since they didn't have the law of the Newgarth. Clearly with their version of Natural law , no rules were broken. Natural law is said that there is no punishment so it would make tons of sense that they would not be punished. Although many people disagree with this it makes complete sense that they were just acting in the sense of Natural Law. Most people in the world will do anything to stay alive and unfortunately these people just were in an extremely difficult situation so it would make sense that these people were only trying to survive and should not be punished. I say that anyone who is trying to stay alive should not be punished, no matter what they are doing.

  8. I agree with Silas on this one. The men entered a state of Natural Law as soon as Whetmore brought up the idea of eating one of the explorers. The group needed to survive, and they did what they could to do so. The morallity is obviously questionable, but I feel that Whetmore volunteered himself as soon as he suggested it. I believe the men shouldn't be hanged because they are mammals doing what mammals need to do to survive.

  9. In response to the Natural Law issue, I would argue that there is never such thing as Natural Law, as long as there is a state that you are in. If I went into the forest in the middle of Canada and killed someone, is that considered legal because it is under "natural law"?

  10. I support Tatting’s opinion on the subject. I as well would withdraw from the case in the interest of avoiding any psychological trauma that may come with sentencing the men to death. It is in Tatting’s best interest to recuse, as the morality of cannibalism as a means to survive is ambiguous. The men should hang, simply because it is the law and the law must be upheld. Perhaps, following the case, the law should be reviewed, but as it is not yet, the men must hang. To put a man, innocent or even just arguably so, to death, can cause severe psychological trauma that could plague Tatting for the rest of his life. Conversely, if Tatting argued in favour of setting the men free, he would not be doing his job as a judge to maintain the law. As such, Tatting is presented with a situation in which he would be wrong to take either side, and such it was right of him to recuse.

  11. The entire discussion rides on the idea of natural law, but at what point do we leave the law of the Government behind and enter a state of natural law? Is it after 3 days, a week, a month? and who decides what that time period is? If we cannot accurately pinpoint the time when these men would have entered a state of natural law, we cannot claim that they were in such a state. Therefore, the only thing we can say with absolute certainty, is that they were still under Newgarth law.

  12. My own opinion seems to be one that is unique thus far in the conversation. Firstly I would like to say that I agree with the definition Mitchell gave to "The State of Nature" i.e i don't believe it exists. These men were within the boundaries of the state of Newgarth, and thus bound by its rules, they were free to leave but by remaining in the state of Newgarth the consent to be bound by its laws, state of nature non-applicable. Following this reasoning it seems that we must agree that the decision should be affirmed and the men should be hung. This is where I disagree. I believe that the decision should be affirmed. Contra Justice Handy I believe the first rule of the courts is to apply the written law, common sense, or the morality of the individual justice's should not have a place in that part of the justice system. I do believe that given the extraordinary conditions of the case, that the court should formally advise the executive to provide clemency. Ultimately it is the courts responsibility to uphold the written law, not to place their own notions of common sense and morality upon it. Ultimately, I find I agree with Chief Justice Truepenny, the statute clearly applies to the defendants and it is the courts responsibility to apply the statute but given the details of the case it would be wise to advise the executive to grant clemency.

  13. I agree with Silas in the fact that it was natural law. You sometimes have be flexible which the Canadian legal system is. This is a particular case were natural law was acted on I do no think that it should be a criminal offense to act upon natural law when you are almost completely disconnected from society. Think about if you were one of the explorers would you starve each other to death and die together or would you sacrifice a life to save others lives

  14. In my opinion, everyone has the right to decide their life's. Opinion 1: all these 4 people should be guilty because they have no right to take anyone's life since the victim doesn't want to. That's get this straight, in this case these 4 people is killing a person in order to survive. They are making and instigating someone to suicide. and so should be guilty.Opinion2: But in order to survive, killing a person is a must. We cannot compare this to people who steals in order to survive, because steal is not the only way. In THE CASE OF THE SPELUNCEAN EXPLORERS, killing a person is a must. There are no other choices. and so we cannot condemn them when they are under a 0 choice situation.Conclusion: These 4 people are being forced to kill 1 person to survive under a “0" choice condition. This is when the conflict between Morality and Law happens. killing or murdering a person is wrong but without any other choices… This is where things gets tricky and annoying. So I kind of supports and agree with Tatting's idea that this case should be withdrawal.Richard Chiu

  15. I initially agreed with J. Foster, who believes that the miners were operating under natural law, and therefore should not be charged with the murder of Roger Whetmore. But after analyzing different criteria and reading what others had to say, I reevaluated the story as well as other concepts of law, which lead me to think differently. Firstly, the miner that was killed had backed out of the agreement between other miners. He was therefore was no longer willing to die or kill, even if that meant he would survive the disaster. Secondly, I believe that it is necessary that we put into consideration the fact that whether the men were trapped or not, they were still in Newgarth, meaning that their law should still apply to these men. They should be charged with murder, however, seeing as how this is a unique case, and how the miners somehow did act under the natural law in order to save their lives, I do not believe that hanging is the appropriate punishment for them.

  16. Hmmm, I have reviewed this case many times and I am not very sure on my position, however I have a position, and will stick by it. I do not believe that these men should be charged with the murder of Roger Whetmore. In the position that they were in, they had no choice but to eat another miner in order to survive. The only law that applies in their situation is Natural Law. I agree with J. Foster because instead of 5 people dying only 1 did. Four lives were saved. But I am still controversial because Roger Whetmore did pull out of the agreement, but it was his own idea. He seems to have been a coward and a cheater. That doesn't mean he deserved to die, but it was necessary.Jon Lee

  17. I agree with J. Foster. This is because when the crime was committed it was under ground and isolated from society. Therefor I agree with multiple other's that "natural law" applies even though they did so within the state. Because of this, I believe the defendants should be released given the circumstances. If they did not kill Roger Whetmore there would have been more deaths. For this specific case the odds have to be weighed; 1 dead or 5 dead. This is why I agree with J. Foster.

  18. I mainly agree with J. Foster. These men only had two choices, one was to eat a man and the other was to die. Most people in this situation would chose to eat the man, and I'm sure most judges and lawyers would as well. The men were in a state of nature and they had to do what they could to survive. Although I agree the most with J. Foster, I also believe that they did murder a man and they should know that and be prepared to face whatever consequences are going to be thrown at them for doing so. I believe that they should be charged with murder in a sense, but that they should not be punished for it at all, if that makes any sense. They would have absolutely no issue being put back into society after this (unlike many murderers), therefore I don't think they should be punished for the act.

  19. I have a different point of view then most others on this case. I do partially agree with the judge; J. Foster. This is because the crime was committed in a situation where both natural law could be applied for the "greater good", being that one man died where as 4 men may have, as well as a degree of fairness being involved. These are two factors which I think were important for making a decision on the outcome of the case. I do not believe that the men would be innocent if either, or neither, of these factors did not apply. This is because it is not fair for any man to have his life taken, even if it is too save 3 others, if he is not in agreement or is attacked against his will. Although Roger Whetmore pulled out of the agreement, it was rather late relatively to when the draw was being taken. Also he did come up with the idea for eating one person so I believe this makes the choice of who was to be killed fair as well as the fact that they used an equal method of choosing by chance. Whether it was fair or not becomes the tipping point for me on the innocence of the men, but if I was a judge I would give the benefit of my doubt to these men and deem them innocent of murder but convict them of assisting in suicide.I believe the men should not be put to death or imprisoned for any huge period of time (more than 5 years) because, as Morgan said, they are unlikely to become repeat offenders. I think they should be charged or punished in some way because they still committed a murder, no matter the situation and should be punished to enforce the law and keep people safe.

  20. I agree with Judge Foster as we share the same opinion that the accused should be acquitted. this is a very unique case which has many factors that set it apart from the average murder case. These factors must be taken into consideration when the accused are being sentenced. the main factor which makes this case so unique is that it abides by "natural law" which was mentioned by Sialis. I believe that the accused should be acquitted for multiple reasons. Firstly, the only possible way for the explorers to survive was to eat one of their own. If they did not do this then none of them would live. Although it is never ideal for a person to die the people must prioritize and realize that saving four lives is more important than saving one. Secondly, the man who was murdered, Roger Whetmore, withdrew from the rolling of the dice saying he would no longer take part. Although he did not want to take part, another explorer rolled for him and he confirmed that the roll was fair. Also, even if he did withdraw it meant that he would not be allowed to eat the person who was killed and he would die also. So why take two lives when only one is necessary? Lastly, the reason why people are put in jail is mainly because they are a threat to society, just like Morgan said. However, these explorers are not, as they were just doing what was in the best interest of the majority of people. To conclude, I believe that the explorers should be found innocent and acquitted of all charges.Andrew Derwin

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