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Speluncean Explorers - Siddhaant Verma (1)

The Case of Speluncean Explorers presents an interesting moral dilemma[1]. Intuitively, the act of cannibalism seems horrible. However, an argument can be made that the explorers killed Roger Whetmore in pursuit of their own survival. The law states that “Whoever shall willfully take the life of another shall be punished by death”[2]. The statute allows no exceptions to this rule. The explorers did indeed willfully take the life of Roger Whetmore. Therefore, it stands to reason that the explorers should be held liable for their actions. It is also important to note that R v Dudley and Stephens[3] and United States v. Holmes (1842)[4]  have previously held that self-preservation cannot always be a valid defence for murder.

Using the aforementioned line of reasoning, we may swiftly dismiss Justice Handy’s opinion. He claims to take a ‘pragmatic’ approach, wherein he considers the public opinion on the case. He emphasizes that since 90% of the people of Newgarth supported exonerating the four men, we must follow their will so as not to lose public confidence[5]. The problem, however, is that if we were to let public opinion dictate how we resolve complex legal matters, the very position of a judge becomes futile. Public opinion is fickle, transient, and unreliable. In the 1960s, a majority of people in Mississippi opposed civil rights laws that protected African Americans against racial discrimination[6]. However, most Americans today would presumably support the concept of equality under the law. Therefore, we may conclude that we can’t always trust the public to arrive at ‘morally correct’ positions.

 Justice Foster, who ruled to set aside the convictions, seems to circumvent this argument. He states that the existence of positive law presupposes a situation where men can co-exist. The explorers were in “a state of nature”, where the co-existence of man is impossible[7]. Therefore, the laws of nature, and not positive law, would apply in this situation. The natural law argument, however, cannot differentiate between the descriptive and the normative. Foster fallaciously implies that just because survival is intrinsic to human nature, and that human beings would do anything in pursuit of self-preservation, then that also ought to be the case. Accepting this ‘survival at all costs’ argument as a moral norm is a slippery slope. For instance, the sex drive is an innate human instinct, but that doesn’t justify rape. The satisfaction of a human desire does not supersede the right to life and the agency of another person. It is important to note that Roger Whetmore did not ultimately consent to the dice system the explorers used, and by extension did not consent to his death.

Another salient point that is worth considering is that although the statute is absolute, the self- defence was established as an excuse for murder through precedent[8]. To invoke self-defence against a person, one must be under imminent attack from that person. Roger Whetmore, however, posed no imminent threat to the other explorers. The only danger they were in was that of starvation, which is an intangible force. Hence, the principle of self-defence would not apply in this case.

To summarize, considering the facts of the case, the role of judges, and the relevant statutes, the four men must be convicted of murder. Justices Foster and Handy made fallacious arguments that undermine the very purpose of legal institutions. Simply put, the explorers are guilty because the law says they are. Morally, however, the decision is undoubtedly abhorrent and should serve as a reminder to the legislators of Newgarth to amend their laws to fit within the broader framework of justice.

The ruling wouldn’t change if the case happened in a civil law jurisdiction, because civil law is rigid in terms of how it defines the role of a judge. In most civil law systems, the role of a judge is to impartially uphold the rule of law by interpreting relevant statutes and the constitution. Therefore, we may conclude that a judge’s primary and exclusive obligation is to the law, and not any other moral consideration[9]. If, for example, the law of a country states that murder is legal, judges have an obligation to uphold that law, no matter how morally repugnant they may find it. The concept of separation of powers between the judiciary and the legislature are greatly emphasized in civil law. The two bodies must act as independent and equal entities with checks and balances to foster effective governance. Judges aren’t supposed to make laws, and elected representatives aren’t supposed to interpret them. The importance of this principle is illustrated by what Justice Keen mentions in his judgement. He recalls a time when the power structure of Newgarth was ill-defined, and judges legislated freely[10]. This gave rise to a power struggle between the different branches of government and ultimately resulted in a civil war.

An argument to support Justice Foster’s decision in a hypothetical civil law jurisdiction could be made. One can claim that natural law and civil law may co-exist with equal validity, with civil law deriving its content from the laws of nature. This argument, however, seems implausible. Natural rights are social constructs that exist only insofar as there is a sovereign authority to protect them. The underlying expectations while making laws is that people ought to and will follow them. People follow laws not because they see it as a moral imperative, but out of fear of retribution from the civil authority. If a state chooses not to recognize ‘natural law’ as a valid legal principle, then people have no obligation to abide by it. Natural law should be seen only as a framework of self-governance, and not as something the state should enforce. Hans Kelsen, in his book Pure Theory of Law, concurs. He states that all laws derive their authority from their ‘bindingness’, and therefore we do not require external sources such as nature to understand these laws[11]. It must also be conceded that statutes are exhaustive in nature, and the judiciary may be forced to rule on a case that does not fall within the purview of any codified law. In that case, it would be reasonable for judges to base their decisions on other sources to achieve the justest outcome. Fortunately, the speluncean explorers’ case falls well within the ambit of the established statutes of Newgarth.

Natural law ultimately requires us to recognise a force that is higher than our codified statutes. The problem, however, arises when one cannot maintain consensus on what this ‘higher power’ says. Judges often appeal to the laws of nature to ensure that their decisions are ‘morally correct. Morality, however, is subjective. Different people have different views on what moral behaviour is. Therefore, by definition, moral norms of human nature are unknowable by human reason. The very purpose of having codified laws is so that we don’t have to consider everyone’s unique ideas of morality. If we are to live in a civil society without conflict, we must agree on a uniform set of rules to govern us.

In conclusion, while ruling on a case, it is important that judges not let their personal biases and opinions influence their decisions. Moreover, with the way civil law systems are set up, it’s hard to envision a world where the explorers are acquitted.

Author(s) Name: Siddhaant Verma (Jindal Global Law School, Sonipat)



[1] Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harvard Law Review, 616-645 (1949)

[2] Id. At 619

[3] R v Dudley and Stephens, (1885) 49 JP

[4] United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. April 22, 1842)

[5] Fuller, supra note 1, at 637

[6] Louis Harris, Mississippi Vote Points Up Power Of Local Emotions: Johnson Job Ratings, N.Y. TIMES, November 23, 1964, at A2

[7] Fuller, supra note 1, at 620

[8] Fuller, supra note 1, at 628

[9] Margaret Fordham, Comparative Legal Traditions-Introducing the Common Law to Civil Lawyers in Asia, 1(1) ASIAN J. COMP. L. 1, at 3 (2006)

[10] Fuller, supra note 1, at 631

[11] Hans Kelsen, Pure theory of law (University of California Press) (1967)