Suggested reading:

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• Lon Fuller, ‘The case of Speluncean explorers’ (1949) 62 Harvard Law Review 616 (requires access to legal database which may incur a subscription charge)

 

The context

The textbook that accompanies this website discussed, in outline, some of the major schools of jurisprudence (the study of legal theory). Legal theory is often reserved for those who are well-advanced in their legal study. On an English law degree, for example, it is often a final year optional subject. It can be conceptually challenging and difficult. Nonetheless, having some understanding of legal theory will enrich the experience of even those at a much early stage of legal study.

 

The way in which a person understands legal theory can have an impact on their interpretation of the law and their critique of it. Jurisprudence is a ‘lens’ that can be used to view the law and its potential flaws. Being able to consider those ‘lenses’ can be very helpful when considering how judges could approach a particular legal issue.  

 

As your read

This resource is not intended to give you a detailed understanding of jurisprudence or to provide ‘answers’. Instead its purpose is to highlight some of the issues that you may wish to consider as you explore the study of law. It is easy to overlook the subject of jurisprudence as you explore substantive legal rules. Avoid this temptation and try to think how these jurisprudential lenses have informed the development of law over time and in different contexts. Consider critically the notion of ‘truth’ in assessing legal disputes and how there may be multiple truths depending on the analytical framing of the question.

In order to fully engage with this resource, you will need to access and read Fuller’s article in full. A citation is provided above to guide you in finding the full article. In this way, this resource serves a second important function. Being able to find, read, analyse, summarise and apply the writings of academics is a core legal and intellectual skill. Taking notes from such readings is essential. Use this opportunity to summarise Fuller’s arguments. Think in particular about:

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• The scenario he presents

• The judgments he given by each judge

• The underlying principles that inform those judgments

 

The third function is to emulate some of the features of a Law School ‘seminar’. These normally involve pre-reading and an attempt to answer pre-defined questions.

 

The issue

Fuller outlines a hypothetical judgment given by five hypothetical judges sitting in the hypothetical Supreme Court of Newgarth. The judges are considering an appeal against a conviction of four explorers for the murder of a fifth. The hypothetical statute under which they were convicted contains no exceptions or justifications. The facts of Fuller’s hypothetical case are relatively straightforward and are summarised below.

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The five adventurers are potholing (or spelunking) in a cave when they become trapped. Before they lose radio contact, they learn that they will likely starve to death before they are rescued. Relying on a set of dice, they select one of their number – initially in agreeance with the idea but who changes his mind – to be killed and eaten. Once they are rescued they are tried for murder, based on the very clear and straightforward law of Newgarth. They appeal and the Supreme Court is left to decide whether or not to uphold the conviction. If they do uphold the conviction then there is a mandatory death sentence, with the possibility of ‘mercy’ only being within the power of the executive. Five justices hear the appeal and each approaches the question using elements of jurisprudence.

 

Questions to consider and activities to complete after reading Fuller’s article:

1. How many of the judges in Fuller’s hypothetical Supreme Court decide to uphold the conviction?

2. How many of the judges decide to reverse the decision and set aside the conviction?

3. Do any of the judges come to a conclusion that is neither to ‘uphold’ nor set aside’ the conviction? If so, what was the basis of that decision? What was the impact of the position of this judge on the final outcome?

4. Which of the main schools of jurisprudence are in evidence in each of the judgments?

5. Multiple of the individual judgments make reference to the ‘separation of powers’ and to the role of the judiciary in law-making and the administration of justice. How do we assess the appropriate role of judges in these types of case and why, from a separation of powers perspective, would it be problematic for the judges to petition the executive on behalf of the speluncean explorers?

6. How might more recent understandings of the theory of law have resolved the case at hand, had there been more judges?

 

 Concluding thoughts

This short exercise is not only about you gaining a better understanding of the different jurisprudential theories and schools of thought but also giving a really clear indication of how those theories matter in cases. Although something of an extreme example, the case of speluncean explorers illustrates that theoretical context can change the outcome of a case. The case scenario given by Fuller provides a snapshot into post-War legal theory and the approaches that had found favour to this point. It is worth considering how these may have adapted in more recent academic writing. As you explore, as you certainly will, other real cases of the English Legal System try to think whether a particular judgment evidences a particular approach to legal theory. Indeed, it may be possible to look at judgments of a particular judge over a number of cases and see whether there is a pattern in reasoning that indicates a particular jurisprudential standpoint.

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