Practical exercise (12.4)

 Practical exercise 12.4: Speluncean Explorers

The full judgment of the case of the Speluncean Explorers can be found at https://www.jstor.org/stable/1336025?origin=crossref.

Reread the judgments of each of the other Justices in the case of the Speluncean Explorers carefully. For each of the Justices, consider the following questions:

1. What were the facts or issues that concerned them most in reaching their decision?
2. What theoretical position do they most closely seem to represent?
3. What do they think their role as a judge demands?
4. What do they consider to be the correct outcome? Once you have analysed each opinion:
5. Which of the Justices do you agree with most closely, and why?
6. Which of the Justices (whose opinion you ultimately disagree with) do you find most persuasive, and why?

Suggested answers

Truepenny CJ: positivist

Affirmed the decision of the trial court but requested clemency. Felt the statute was against the conspirators. Did not reflect the statute itself. The appeal for clemency is an abandonment of the judicial role: acknowledging that the legal system was not really able to handle the complexities of the issue.

Foster: natural

Considers that if the case took place a mile beyond the territorial limits of a state, no-one would pretend that the law of the state would be applicable to the case. Law is not absolute, and that when the normal rules of society break down, then the force of positive law disappears with it, and the law of nature takes over. Even though there is nothing in the wording of the statute that suggests self-defence, the exception of self-defence is accepted.

Tatting: positivist

Disagreed with Foster on the state of nature issue, but he agreed with Foster that there is value in the self-defence theory of self-defence. However, the conspirators acted ‘wilfully’. Considers that both perspectives (acquittal and conviction) have equally strong arguments and he cannot decide.

Keen: positivist

A harsh decision will force the legislature to reconsider the statute. The scope of the exception in favour of self-defence clearly applies to cases of resisting an aggressive threat to the party’s own life. This case does not fall within the scope of the exception, since Whetmore made no such threat. Law can be enforced whether it is good or bad: Judges should apply the law and not their personal morals. It is not the judiciary’s role to influence the legislature; that is for the people.

Handy: realist

Conscious of public opinion: the legitimacy of the judiciary derives from it reflecting the will of the people.