Questions about law:

  • Standpoint: judges law?
  • Interpretation: just law?
  • Relevance: without law?

King Solomon: why is the judgement wise?

  • Whats is being judged: discovery of facts versus judging the case.
  • What about the rule of law: threatening/misleading the parties to the case.
  • Judging people: the social dimension of law.

Water pollution in India: a right to clean water in developing countries? A legal right to clean water under conditions of water shortage.

  • Are legal right in such a situation illusionary?
  • What could be the role of law in ensuring access to clean water to everyone?

The case of the Speluncean Explorers:

The case was constructed with the sole purpose of bringing into common focus certain divergent philosophies of law and government. If there is any element of prediction in the case, this does not go beyond a suggestion that the questions involved are among the permanent problems of the human race. According to Lon Fuller.

The defendants, having been indicated for the crime of murder, were convicted and sentenced to be hanged by the Court of General Instances of the Country of Stowfield. They bring a petition of error before this Court.

Whoever shall wilfully take the life of another shall be punishes by death, art. 12A NCSA. How do we decide this case?

  • Thinking of law, legal doctrine.
  • Thinking about law, legal philosophy.
  1. Justice Truepenny (Chief Justice): verdict should be affirmed.

The language of the Statute allows for no exceptions. The jury followed the only course that was open to them under the law. But: the Supreme Court must join the plea for clemency adressed to the executive (Chies Executive).

Justice will be accomplished without impairing either the letter or the spirit of our statutes and without offering any encouragement for the disregard of the law.

  1. Justice Foster: conviction must be set aside.
  • Newgarth law is not applicable to the Explorers because they were in s State of Nature or have created a new legal order. Where the reason for law ceases, the law ceases.

o Territorially: cave, no communication with the outside world.

o Morally: the extremeness of their situation.

o Contractually: agreement in the cave created a new legal order.

  • Or, if the law is applicable, then it must be interpreted in a way that serves its purpose. A man may break the letter of the law without breaking the law itself.

o The positive law must be interpreted reasonably in yhe light of its evident purpose. o If the sentence is upheld, the Newgarth law would no longer incorporate justice.

Foster and natural law tradition: natural law is natural in the sense that is it not at the disposition of state institutions (parliaments, courts etc.)

-      Positive law: law created by human beings, no necessary connection between law and


-      Natural law: law of God, or humanity, law incorporates moraliy.

  1. Justice Tatting: withdraws from the decision.

-      Critique on Foster's 1st argument: it is not clear when and how this new legal order was

created (legal validity). This new legal order cannot defy the law of Newgarth (legal authority). The Court cannot judge the explorers other than by the standards of the law of Newgarth (legal competence).

-      Critique on Foster's 2nd argument: how could the judges know what purpose the legislature

intended with the criminal statute? What are the conditions and the scope of the exception tot the prohibition of murder?

Instead of studying legal texts, judges turn to sociology and psychology to analyze the working of law. Difficulty to determine a coherent and rational interpretation of the meaning of the law, and its proper apllication to the case. Since I have been wholly unable to resolve the doubts that beset me about the law of this case, I declare my withdrawal from the decision of this case.

  1. Justice Keen: judgement should be affirmed

Considerations of whether the explorers should be pardoned are outside the coirt's competence. The judges should not concern themselves with clemency (vs Truepenny). The explorers acts must be judged acoording to the plain meaning of the law, literal interpretation. The court must decide wehther the acts of the explorers breached the law, not whether they were good or bad or moral or immoral (vs Foster). Interpretation of the law accoring to its purpose if not necessary and interferes with the competence of the law­maker

Keen and legal positivism: the law is what has been posited as law by the lawmaker. There is no necessary connection between law and morality. Valid law can be moral or immoral. Distinction between what the law is and what the law ought to be.

  1. Justice Handy: judgement should be set aside.

There are a few fundamental rules of the law. Everything else is common sense.

  • Law must preserve a reasonable accord between rulers and ruled.
  • Law must correspond to common sense. General consensus in society.
  • Publiv opinion of Newgarth is in favour of pardon or symbolic pnushment. Supreme Court must follow this opinion instead of constructing artificial legal arguments.

Handy and legal realism: law is a human creature, and judges are human beings. Doing law is less about following the rules than about serving society.

  • Implausibility of division between impersonal and personal standpunt (vs Keen).
  • Implausivility of the judges sentencing the explorers to death only then for another branch of government to pardon them (vc Truepenny).

Handy and legal instrumentalism: law is tool to foster goals that society sets itself.

  • Implausivility of the judges sentencing the explorers to death only then for another branch of government to pardon them (vc Truepenny).
  • The problem before us is what we ought to do with these defendents. That is a question of practical wisdom, to be exercides in a context, not of abstract theories but of human realities

Legal precedents:

  • Us v Holmes (1842): homicide to lighten an overloaded lifeboat.
Regina v. Dudley & Stephans (1884): homicide to feed starving survivors.
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