[Paleopsych] Lon L. Fuller and the Enterprise of Law
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Lon L. Fuller and the Enterprise of Law
by Barry Macleod-Cullinane
Legal Notes No. 22, 1995
[Lon Fuller up at the very top of the list of American philosophers of law. His
work argues for the intrinsically moral nature of law and is a secular exponent
of natural law. Here's a good summary and critique of his thought.
[Why Fuller's article, "The Case of the Speluncean Explorers," is in the
bibliography but not cited in the text is a puzzle. According to Peter Suber,
who added to the article more opinions, "the case tells the story of a group of
spelunkers (cave-explorers) in the Commonwealth of Newgarth, trapped in a cave
by a landslide. As they approach the point of starvation, they make radio
contact with the rescue team. Engineers on the team estimate that the rescue
will take another 10 days. The men describe their physical condition to
physicians at the rescue camp and ask whether they can survive another 10 days
without food. The physicians think this very unlikely. Then the spelunkers ask
whether they could survive another 10 days if they killed and ate a member of
their party. The physicians reluctantly answer that they would. Finally, the
men ask whether they ought to hold a lottery to determine whom to kill and eat.
No one at the rescue camp is willing to answer this question. The men turn off
their radio, and some time later hold a lottery, kill the loser, and eat him.
When they are rescued, they are prosecuted for murder, which in Newgarth
carries a mandatory death penalty. Are they guilty? Should they be executed?
["Fuller wrote five Supreme Court opinions on the case which explore the facts
from the perspectives of profoundly different legal principles. The result is a
focused and concrete illustration of the range of Anglo-American legal
philosophy at mid-century. My nine new opinions attempt to bring this picture
up to date with our own more diverse and turbulent jurisprudence half a century
[I'm putting the original Fuller article beneath the discussion of Barry
Macleod-Cullinane and Suber's introduction below that. (Like too many of my
best books, I loaned it out, and it did not come back. I hope this all adds to
your legal education.]
An occasional publication of:
The Libertarian Alliance
25 Chapter Chambers, Esterbrooke Street
London SW1P 4NN, England
Barry Macleod-Cullinane holds a BA in economics and an MA in Political
Philosophy from York University. He is currently a Graduate Teaching
Assistant in the Department of Politics at Hull University.
"The only formula that might be called a definition of law offered
in these writings is by now thoroughly familiar: law is the
enterprise of subjecting human conduct to the governance of rules.
Unlike most modern theories of law, this view treats law as an
activity and regards a legal system as the product of a sustained
Lon L. Fuller - The Morality of Law
At a time when legal positivism - the doctrine that law and morality
must be separated - was riding high, there emerged an eloquent
champion of natural law theory, albeit in a secularized form, whose
distinctive and thoughtful arguments won applause even amidst the
controversy he sparked. The legal philosophy of Lon L. Fuller
(1902-1978) has largely gone unnoticed by those interested in the
processes and institutional order of a market society - a fact I am
seeking to remedy in the present Paper. However, this should not be
taken as my final word on the subject; rather, it represents my first
tentative examination of the richness and vitality of Fuller's
thought. I hope that such inadequacies as may be found will serve to
promote discussion and exploration of the issues raised by Fuller.
Fuller's The Morality of Law, first published in 1964, is his most
famous and, perhaps, his most controversial work. At a time when legal
positivism still dominated jurisprudence, the suggestion that law and
morality were not only connected but connected intimately was such an
affront to scientistic thinking that it brought repeated charges of
"axe grinding" from one reviewer. "[A]s a theory of law, many readers
will find what the author says unsatisfactory. He is obviously
grinding an axe, and such emphasis inevitably distorts."
Interestingly enough, that reviewer, Robert S. Summers, has
subsequently come to revise both his evaluation of Ion Fuller's
writings and also substantially to shift his methodological outlook
towards Fuller's position. But The Morality of Law did not begin
controversy: it was, by Fuller's own reckoning, merely round four
in a long-running dispute between himself and the English legal
theorist, H. L. A. Hart. Moreover, a reading of the particular rounds,
the papers and books published by Hart and Fuller, indicates that
disagreement was not founded solely upon Hart's legal positivism and
his insistence upon the separation of law and morals. Several other
themes contributed to define what Fuller, in his later "Reply To
Critics", characterised, after Hart, "fundamental differences in our
starting points" and which seemed to preclude a coherent dialogue
from emerging between him and the legal positivists.
These "starting points" include the conception of law as a dynamic
process of creation and discovery. In his continuing emphasis upon
customary law, i.e. spontaneously evolved rules emerging through
dispute arbitration and adjudication combined with the spread of
superior ways of doing things through competition and imitation, as
exemplified by the law Merchant, Fuller entirely endorses the
description by the Italian legal thinker, Bruno Leoni, that:
Individuals make the law, insofar as they make successful claims.
They not only make previsions and predictions, but try to have
these predictions succeed by their own intervention in the process.
Judges, jurisconsults, and, above all, legislators are just
individuals who find themselves in a particular position to
influence the whole process through their own intervention.
Indeed, there is an emphasis throughout The Morality of Law upon law
not only as an enterprise, but as one which is most at home and
compatible with the market order, which it itself mirrors. Building
upon his examination of "the conditions that make a duty most
understandable and most palatable to the man who owes it", Fuller
asks what form of society will most likely meet these conditions. When
will observance and compliance of moral and legal duties be most
complete? Fuller relates that "the answer is a surprising one: in a
society of economic traders". His subsequent approval of F. A.
Hayek's close identification of the rule of law with the market order
is further confirmed by an excellent presentation of the ideas of
Soviet theorist Eugene Pashukanis, particularly his Commodity Theory
of law, which Fuller suggests should be renamed "the Commodity
Exchange Theory of Legal and Moral Duty" and which serves to
underscore the "somewhat startling conclusion that it is only under
capitalism that the notion of the moral and legal duty can reach its
In addition, the law serves a very important coordinative function by
providing a chart against which an individual might orientate his
plans and actions and rationally evaluate their (likely) interplay
with those of (often anonymous) others. Thus, "[i]n one aspect our
whole legal system represents a complex of rules designed to rescue
man from the blind play of chance and to put him safely on the road to
purposeful and creative activity." It is perhaps illuminating to
note that Fuller's examples of this coordinative role are entirely
drawn from the commercial sphere (the law of quasi contract, the law
of contract, and tort law) and whose "acceptance today represents the
fruit of a centuries-old struggle to reduce the role of the irrational
in human affairs".
And, like Leoni, Fuller is wary indeed of the legislative
'creation' of law as opposed to emergent, customary law. Partly this
reflects his lengthy experience as a commercial aibitrator. But it
also stems from his distrust of what Hayek describes as the
"constructivist rationalism" that grounds legal positivist
thinking. For "[t]he characteristic error of the constructivist
rationalists .. is that they tend to base their argument on what has
been called the synoptic delusion, that is, on the fiction that all
the relevant facts are known to some one mind, and that it is possible
to construct from this knowledge of the particulars a desirable social
This concern is especially apparent in Fuller's caution to the
legislative draftsman that the latter should not force upon the
interpreting agent "senseless tasks". For not only does the
problem of interpretation reveal "the cooperative nature of the task
of maintaining legality", but it clearly demonstrates how the
draftsman has to "be able to anticipate rational and relatively stable
modes of interpretation" in order to create meaningful laws.
Echoing Hayek, Fuller explains that "[n]o single concentration of
intelligence, insight, and good will, however strategically located,
can insure the success of the enterprise of subjecting human conduct
to the governance of rules." If law-making is essentially a
process of entrepreneurial discovery, then only a free market in law
can be entirely compatible with the enterprise of law, of "subjecting
human conduct to the governance of rules".
It is in this light that the present Paper is offered. I divide it
into two main sections. First, I deal with the ideas particularly
connected with The Morality of Law such as: the distinction between
the moralities of duty and aspiration; the nature of law's internal
morality; and Hart's criticisms of the foregoing as violating the
legal positivist distinction between what is and what ought to be,
i.e. the confusion of law and morals. The second section is an
elaboration of Fuller's procedural natural law theory. Here I examine
his contention that protection of rights can emerge from customary
law, taking particular notice of the spontaneous evolution of the
medieval law Merchant. I conclude by drawing out the implications of
Fuller's ideas for contemporary thinking on the nature of law and
II THE MORALITY OF LAW
(A) The Two Moralities
In opposition to B. F. Skinner's deterministic behavourism, Fuller
sees in man the capacity to alter his actions by conscious decision;
the role of law being to enable his social orientation. Indeed, though
"legal morality can be said to be neutral over a wide range of ethical
issues" Fuller argues that it cannot remain neutral to the nature
of man himself since "the enterprise of subjecting human conduct to
the governance of rules involves of necessity a commitment to the view
that man is, or can become, a responsible agent, capable of
understanding and following rules, and answerable for his defaults."
Guiding man's life are the moralities of duty and aspiration, whose
nature and interplay define the role, aims, and limits of law. The
morality of aspiration, the pursuit of virtue in Greek philosophy,
represents "the morality of the Good Life, of excellence, of the
fullest realisation of human powers."  In contrast, whereas
...the morality of aspiration starts at the top of human
achievement, the morality of duty starts at the bottom. It lays
down the basic rules without which an ordered society is
impossible. ... It does not condemn men for failing to embrace
opportunities for the fullest realisation of their powers. Instead,
it condemns them for failing to respect the basic requirements of
social living. 
After Adam Smith,  Fuller describes how the rules of language
mirror the morality of duty by specifying certain basic requirements
for social communication. Rules to achieve excellence are notoriously
vague for "the closer a man comes to the higher reaches of human
achievement, the less competent are others to appraise his
performance."  Far from entailing society's dissolution, excellence
can only be achieved within a social context; outside of which "none
of us could aspire to anything much above a purely animal existence.
One of the highest responsibilities [therefore] of the morality of
aspiration is to preserve and enrich this social inheritance." 
In evaluating the passion for "deep play", and whether such
'excessive' forms of gambling should be outlawed, Fuller observes that
"there is no way by which the law can compel a man to live up to the
excellences of which he is capable."  However, when certain
activities threaten the social bond the law can look for guidance "to
its blood cousin, the morality of duty". A moral scale can be
envisaged rising from the most basic conditions required for civil
association to the very peaks of human possibilities. Because it is
the line of division between duty and the pursuit of excellence that
delimits the scope of law's 'compulsive domain' so this "invisible
pointer" is shrouded by "the whole field of moral argument" as
thinkers engage in "a great undeclared war over the location of this
pointe?'.  Indeed, this is an excellent characterization of
toleration. Those urging the pointer higher betray the intolerance of
moral censors who, "[i]nstead of inviting us to join them in realising
a pattern of life they consider worthy of human nature, try to
bludgeon us into a belief we are duty bound to embrace this pattern."
Platonism has "needlessly complicated" the locating of this
pointer. By arguing that in order to know bad one has to grasp
perfection, Platonism claims that "moral duties cannot be rationally
discerned without first embracing a comprehensive morality of
aspiration". Yet, the legal impotence that Platonism would have
expected from millennia of conflicting substantive moral theories has
not materialised: "[t]he moral injunction 'thou shalt not kill'
implies no picture of the perfect life. It rests on the prosaic truth
that if men kill one another off no conceivable morality of aspiration
can be realised." 
Similarly, Fuller continues, examples can be found throughout "the
whole field of human purpose" refuting the proposition that it is
impossible to reject "what is plainly unjust without committing
ourselves to declare with finality what perfect justice would be
like". In this, Fuller is profoundly located within Classical
Liberalism's traditional emphasis upon the establishment of "a
framework for utopia" (to steal Robert Nozick's beautiful phrasing)
that adheres to a conception of 'negative liberty' as opposed to
'positive liberty'.  Composed from injunctions upon that range of
actions hostile to the continued existence of the social commonwealth,
the idea of negative liberty is succinctly conveyed in Herbert
Spencer's famous 'law of Equal Freedom'.
Hence, that which we have to express in a precise way, is the
liberty of each limited only by the like liberties of all. This we
do by saying: Every man is free to do that which he wills, provided
he infringes not the equal freedom of any other man. 
This runs in sharp contrast to 'positive liberty' or 'entitlement'
claims to welfare fulfilled at another's expense. Indeed, it is the
very institutionalisation of class interests by the coercive,
redistributive power of the State that endangers social peace. 
Thus, the very anti-perfectionism of Classical Liberalism enables us
"to create the conditions that will permit a man to lift himself
upward. It is certainly better to do this than to try to pin him to
the wall with a final articulation of his highest good." 
But "this issue is far from prosaic", Nolan attacks Fuller.  For,
"if we should not kill on the grounds that we destroy higher
aspiration moralities some idea of what those moralities are would be
needed other than the implied benefits of leaving people free (to
exchange goods and services)."  Not only is this infused with
Platonism but it betrays a profound naivete concerning the
alternatives of social organisation that is dangerously irresponsible.
As Ludwig von Mises explains, only two choices (capitalism or
socialism) ultimately exist. And,
[i]f one further realises that socialism [too] is unworkable, then
one cannot avoid acknowledging that capitalism is the only feasible
system of social organisation based on the division of labour. ...
A return to the Middle Ages is out of the question if one is not
prepared to reduce the population to a tenth or a twentieth part of
its present number and, even further, to oblige every individual to
be satisfied with a modicum so small as to be beyond the
imagination of modern man." 
Surely the reality implied by the severing of the social bonds
overcomes Nolan's objection: for, in the extended order, there is a
morality of aspiration achieved by "leaving people free (to
exchange goods and services)". 
(B) The Inner Morality of Law
To illustrate "the problems of institutional design", and to
derive the requirement for the "Inner Morality of law", Fuller
marshals his "mythopoetic powers" in "The Problem of the Grudge
Informer". The problem is not that a legal system (of sorts) did
not previously exist, but that what did exist not only sanctioned but
actually encouraged individuals to settle old-scores through the
coercive power of the State. With the dictatorship gone the demand
that such "grudge informers" be punished emerges.  It falls to the
reader. newly elected as Justice" Minister, to resolve the problem.
Whilst such acts were not illegal under the old regime, current public
sentiment is such that individuals so accused are likely to be
Fuller dampens the constructivist temptation with the sobering tale of
King Rex and the eight ways in which he failed to make law. Of the
routes to failure:
The first and most obvious lies in a failure to achieve rules at
all, so that every issue must be decided on an ad hoc basis. The
other routes are: (2) a failure to publicise, or at least to make
available to the affected party, the rules he is expected to
observe; (3) the abuse of retroactive legislation, which cannot
itself guide action, but undercuts the integrity of rules
prospective in effect, since it puts them under the threat of
retrospective change; (4) a failure to make rules understandable;
(5) the enactment of contradictory rules or (6) rules that require
conduct beyond the powers of the affected party; (7) introducing
such frequent changes in the rules that the subject cannot orient
his action by them; and, finally, (8) a failure to achieve
congruence between the rules as announced and their actual
Rather than adopt a substantive natural law approach, Postulating a
higher law that sanctions the legislative function of the State (as
did some German legal postivists like Gustav Radbruch), Fuller
counsels in favour of a procedural natural law approach. Taking up his
eight ways to fail to make law Fuller explains that they are mirrored
by eight "desiderata" or "eight kinds of legal excellence toward which
a system of rules may strive" and embodied in the Inner Morality
The IML is essentially a morality of aspiration: whilst the law should
be promulgated most of the demands for legal excellence cannot easily
be expressed as duties, thereby condemning the Inner Morality of law
"to remain largely a morality of aspiration and not of duty. Its
primary appeal must be a sense of trusteeship and to the pride of the
The other major feature of the Inner Morality of law is that, apart
from the pursuit of such legal excellence, it is not concerned with
any substantive ends. Behind the rule of law stands an approval,
originated in what Albert Jay Nock aptly called 'social power' in
contrast to 'state power',  and which characterizes the social
contractarian aspect of Leveller, Lockean, and American Revolutionary
thought cited approvingly by Fuller. It is for the external
morality of law, anchored in this basic social morality characterising
'social power', to define those substantive ends (i.e., concerns for
justice) to be sought through the law. But as has already been
intimated, this urge is constrained by the enterprise of law itself:
too many regulations would undermine the law.  For, as will be
shown, there is a disproportionate amount of coercion involved in
implementing State legislation, as compared to judgements arising from
customary law which relies upon voluntary support.
Moreover, the very desiderata comprising the Inner Morality of law
can, and must, vary with external circumstances. Fuller's account of
how retroactive laws may be justified (to resolve a failure in another
desiderata, for instance) is a case in point. But, he concludes,
referring back to the division of labour in the extended order; "to
know how, under what circumstances, and in what balance these things
should be achieved is no less an undertaking than being a lawgiver."
In the case of the "grudge informer" retroactive legislation can be
justified in the attempt to restore respect for the law. Not only is
this a swifter and surer approach than attempting to interpret Nazi
statutes as to their legality at the time, or to argue that their very
vagueness compels the rejection of such legislation, it also counters
the unstated system of rules, imposed by the Party's terror in the
streets and pressure on the judiciary, that existed without formal
It is useful at this point, however, to recall the arguments of the
Marxist legal theorist, Pashukanis. Pashukanis suggested that there is
just as much economic calculation, or evaluation of the consequences
accruing from an action, in the moral sphere as there is in the
economic sphere.  Thus,
in bourgeois criminal law we find a table of crimes with a schedule
of appropriate punishments or expiations - a kind of price list for
misbehaviour. ... The legal subject is thus the legal counterpart
of the economic trader. 
Clearly, with no "price list for misbehaviour", it might naturally be
assumed that no wrong was committed by the "grudge informers."
But the heart of law is not dependent upon subjective calculations,
i.e. the economics of marginal utility or its moral equivalent the
morality of aspiration. The conception of acting man re-ordering his
activities in accordance with his constant creation and revision of
plans is incompatible with the requirements of the morality of duty
sustaining society. For, with the continual change of opportunity
costs, i.e. the imagined value of the moral desirable alternative
foregone at the moment of choice, 'laws' facilitating the settling of
grudges will radically influence individual choice and, therefore,
action. Marginal utility theory is positively hostile to the social
bond in this respect. Thus it remains the province of the morality of
duty, or the economics of exchange, to defend the 'basic ground rules'
required for social cooperation based upon voluntarily assumed,
reciprocal relationships. In this manner it is apparent that even with
no legislative proscriptions certain acts will still violate the most
basic social duties and, hence, be subject to legal punishment. It is
because the IML is anchored in the maintenance of civil association
that such "grudge informers" can be viewed as having violated the
minimum duties required for social living, regardless of the condition
of positive law, and be rightfully made subject to legal and social
There is, in this, a remarkable similarity to the natural law thesis
of a higher law. But Fuller's thesis is far more modest. Arising from
his conception of acting man and the necessity of social life are the
very institutions of individual rights, property, and, above all, the
rule of law that substantive natural law theorists set down in
theocratic tablets of stone.
(C) The Positivist Quest and Hart's Review
I turn now to deal with the issues raised by legal positivism.  In
his The Law in Quest of Itself Fuller relates how legal
positivists have attempted to divorce law and morality. Following the
strides made by the natural sciences, these thinkers took up what they
perceived - mistakenly - to be the mantle of scientific method. 
Legal positivism's basic tenets will first be presented as a
foundation upon which the subsequent critical appraisal of Hart's
Review of The Morality of Law can be set. I have mostly neglected the
debate in 1958 in the Harvard Law Review in this context since the key
issues are drawn out in Hart's "Review" and Fuller's "Reply to
Two ideas mark the positivist project: (1) a belief in a general
criterion by which the law could be identified and differentiated";
(2) and an attempt to draw a "sharp line between law and non-Jaw
(especially morals)".  Ever since the Power-grounded theories of
Hobbes, legal positivism has attempted to ground the identification of
law in some master test. To do otherwise would be to slide towards
accepting the proposition that 'general acceptance' is the hallmark of
law, unpalatable for legal positivists since this would also include
Hart's "Review" roughly consists of a restatement of these two basic
themes. First, there is his "rule of recognition", an attempt to
establish a general criterion to separate law from non-law and
particularly aimed at Fuller's wide conception of law that,
"admittedly and unashamedly, includes the rules of clubs, churches,
schools 'and a hundred and one other forms of human association'."
 Secondly, Hart argues that it is impossible to speak of an
"Internal Morality of law": to do so would be to speak of the
"internal morality of poisoning" that stresses the basic requirements
and challenges to the excellence of (efficient) poisoning.
Hart begins his attack upon the IML with a remark that the eight
desiderata "are compared by the author to principles (he says,
'natural laws') of carpentry. They are independent of the law's
substantive aims just as the principles of carpentry are independent
of whether the carpenter is making hospital beds or torturers' racks."
But Fuller's "insistence on classifying these principles of legality
as a 'morality' is a source of confusion both for him and his
readers" serving to perpetuate "a confusion between two notions
that it is vital to hold apart: the notions of purposive activity and
morality."  Hart then turns to consider how similar principles
might not also inform the poisoner's craft, concluding that this would
blur efficiency related to a purpose with moral judgements about the
activities and purposes themselves. The "grotesque results" of such a
confusion stems from Fuller's belief that the purpose of subjecting
human conduct to the governance of rules represents "some ideal
development of human capacities which is taken to be the ultimate
value in the conduct of life", i.e. that it represents a morality
of aspiration. I have already defended, against Nolan's objections,
the Inner Morality of law in this light. But, to extend Hart's analogy
of the poisoner, might not the legislator also use laws, enacted in
clear observance to all the desiderata, to terrorize the populace?
In reply, Fuller looks to Soviet Russia and the making of "economic
crimes" punishable by death. Asking is it inefficient to pass
retroactive legislation in this manner, Fuller explains that even
Soviet lawyers viewed such actions as undermining confidence in law.
Thus, a theory of social disharmony, generated in the trade-off
between short-run efficiency and the longer term existence of law,
pushes Hart and the legal positivists "across the boundary they have
so painstakingly set up to distinguish morality from efficiency
...[and] they might have saved themselves a good deal of trouble by
simply talking about morality in the first place." 
The other feature of Hart's "Review" is his intention to establish a
"rule of recognition
In my book [The Concept of Law] I insisted that behind every
legislative authority (even the supreme legislature of a legal
system) there must be rules specifying the identity and
qualification of the legislators and what they must do in order to
make laws. ... I used the expression 'the rule of recognition' in
expounding my version of the common theory that a municipal legal
system is a structure of 'open-textured' rules which has at its
foundations a rule which is legally ultimate in the sense that it
provides a set of criteria by which in the last resort the validity
of subordinate rules of the system is assured. This rule is not to
be characterized as either legally valid or invalid - though it may
be the subject of moral criticism, historical or sociological
explanation, and other forms of inquiry. 
In reading Hart's discussion of the "rule of recognition" (though
sometimes "rules of recognition") there is an apparent gap that
singularly torpedoes his entire position. He traces the day to day
activity back to, and finds their validity in, a general rule which
itself conforms to the criteria for legality of the subordinate
laws but, as he admits in The Concept of Law,  "is also unlike
them in that there is no rule providing criteria for the assessment of
its own legal validity." 
Moreover, this "legally ultimate rule differs both from the ordinary
subordinate rulers of the legal system and from ordinary social
conventions or customs." Now, whilst the reason for adopting a 'rule
of recognition' is to avoid what Hart calls the "gunman situation
writ large" his account descends precisely into this abyss. At no
point does he overcome Fuller's characterization of legal authority in
his scheme as "Who's Boss around here anyway?" The entire tradition
that government is sanctioned by the governed is lost on Hart, with
merely an identification of legal authority with Power. Yet, for a
'rule of recognition' to be a useful tool, some way of deriving the
legitimacy of a 'legal authority' is essential, and this account is
absent in Hart. In contrast, Fuller's notion of law anchored in custom
and morality is far more plausible, especially at times when State law
collapses.  In fact, as Benson suggests, there is in Fuller's view
an "implicit constitution" which "emanates from reciprocity, as does
the recognition of duty (and, therefore, law) in general." 
III CUSTOMARY LAW AND THE LAW MERCHANT: ELABORATING FULLER'S PROCEDURAL NATURAL
The previous section argued that Hart's conception of law is
inadequate either to explain or to define the enterprise of law.
Indeed, his emphasis upon the ability to punish as the defining
feature of a legal system is humbled by the lowly tennis club's
capacity to fine, suspend or expel members non-compliant to its rules.
The identification of law and Power is thus misguided and obstructive.
Moreover, because law is an enterprise it must necessarily be
concerned about what ought to be as well as about what is. Typically,
when individuals in dispute ask their lawyers 'what is the law?' they
look not to the present but to the future; they want to know how the
legal confusion will be resolved. In this endeavour it is clear that
law-making must be animated by moral concerns, especially the
challenge to excellence. But it should be stressed that:
Every step and every movement of the multitude, even in what are
termed enlightened ages, are made with equal blindness to the
future; and nations stumble upon establishments, which are indeed
the result of human action, but not the execution of any human
If' as Menger observed, even law can emerge without conscious
design then a procedural natural law theory, relying merely upon
self-interest, might be shown (both historically and theoretically) to
recognise and protect rights.
(A) The Medieval Law Merchant
Emerging during the eleventh and twelfth centuries from the
self-interested concerns of merchants, the law Merchant represents
what Fuller calls a "language of interaction" facilitating trade.
The Roman Empire's collapse had been followed by a near extinction of
commercial activities, only being revived by an expansion of
agricultural productivity, which freed labour to engage in industrial
manufacturing in the newly emergent towns. This synergistic
relationship, between the revival of commerce and the improvement in
agriculture, marks a greater level of specialisation and thus
increasing economic activity. Trade, specialisation, and the emergence
of money, the most marketable commodity, by substituting indirect
exchange for barter, increases productivity and individual welfare.
Similarly in law, with the fracturing of the Roman Empire there
existed no uniform body of law; towns, regions, and countries all had
different legal systems. Indeed, within any town there was likely to
be a profusion of legal jurisdictions: ecclesiastical, manorial, or
civil. With growing returns to be made from commerce crossing
different legal systems, a way of resolving disputes became
(B) Customary Law
Merchants are, of necessity, engaged in purposeful activity orientated
towards others. As Hayek observes, business practices generate, over
time, expectations in the minds of others; expectations "reasonably
formed because they corresponded to the practices on which the
everyday conduct of the members of the group was based." 
The significance of customs here is that they give rise to
expectations that guide people's actions, and what will be regarded
as binding will therefore be those practices that everybody counts
on being observed and which thereby condition the success of most
Because customary law is rooted in "the existence of 'social mores'
defining rules of conduct" it is necessarily associated with the
basic rules establishing civil association, i.e. it is dependent upon
the morality of duty. Three conditions, Fuller suggests, underpin
duty. "First, the relationship of reciprocity out of which the duty
arises must result from a voluntary agreement between the parties
affected; they themselves 'create' the duty. Second, the reciprocal
performances must in some sense be equal in value." Because it is
nonsensical to consider equality as exact identity some common unit of
measurement, into which differences can be subsumed, is necessary.
And, " [t]hird, the relationships within the society must be
sufficiently fluid so that the same duty you owe me today, I may owe
you tomorrow in other words, the relationship of duty must in theory
and in practice be reversible." 
Based upon voluntary trade, a common unit of comparison (money), and
the changing roles of individuals (as buyers and sellers), the market
order is that form of social organisation that best accords to the
morality of duty. For only in a society of traders" can Fuller's
conception of duty, based upon reciprocity, be realised.
(C) The Evolution of Customary Law
The "dirty feet" characterisation of the law Merchant conveys the
pressing urgency for resolving disputes and differences in business
practices faced by merchants anxious to move on to their next market.
Also present is their reluctance to use local laws: royal courts
typically considered void contracts specifying interest, whilst few
local legal authorities were technically competent in the are of
commercial practice. 
A new procedure or ruling, satisfying both parties, was likely to be
copied and adopted by other merchants in both their initial contracts
or during arbitration. As the circumstances to trade altered so new
rules displaced older and less efficient practices. Gradually, there
evolved a universal body of rules, the law Merchant,. that in "turn
was a prerequisite for the rapid development of trade", and which,
importantly, was not based upon compulsion by the State (or private
individuals). Fuller notes that, as opposed to the hierarchical or
"vertical" order imposed by State law, customary law and the law
Merchant are examples of "horizontal forms of order".
Customary law is superior to not only statute but also judge made law.
Whereas a bad statute or, less commonly, bad judicial decision affects
the entire legal system, through enforcement and precedent, customary
legal systems quickly abandon bad, unjust, or inefficient rules and
limit damage to only a portion of the extended order.  Benson
finds that, with respect to the law Merchant, a number of legal
innovations were adopted "because they promoted speed and informality
in commerce and reduced transactions costs" whereas though "royal
law, such as the Common law in England, was developing during this
same period, and while supporters of the common law take pride in its
rationality and progressiveness, the fact is that this state produced
law as enforced by the king's courts simply did not adapt and change
as fast as the rapidly changing system required."  Precisely this
point is emphasised by Fuller:
From the standpoint of the internal morality of law, for example,
it is desirable that laws remain stable through time. But it is
obvious that changes in circumstances, or changes in men's
consciences, may demand changes in the substantive aims of law, and
sometimes disturbingly frequent changes. 
(D) Consent - The Foundation of Customary Law
At the heart of any system of customary law lies the voluntary support
of all participants. Unlike State law, marked by the coercive
subjugation of citizens beneath leviathan, customary law is a
cooperative enterprise. Profitable relationships are jeopardized by
the adversarial nature of State courts and its delays. Thus,
speedy resolution, under a mutually agreed upon arbitrator, is
attractive even to merchants who had not originally stipulated resort
to arbitration in their contracts. The conceptual choice of conflict
or conversation still holds in this instance. By avoiding arbitration
(conversation) a recalcitrant merchant thereby embraces either the
hostility engendered by State courts or the violation of contractual
agreements, i.e. property rights, which, in the case of agricultural
products, with high perishability, would be tantamount to theft or
wanton destruction.  Since both parties agreed to arbitration both
voluntarily accept the arbitrator's resolution. Damages for rights
violations, in the form of torts, would take the form of economic
restitution. Benson explains that:
these courts' decisions were accepted by winners and losers alike
because they were backed by the threat of ostracism by the merchant
community at large a very effective boycott sanction. A merchant
who broke an agreement or refused to accept a court ruling would
not be a merchant for long because his fellow merchants ultimately
controlled his goods. The threat of a boycott of all future trade
"proved, if anything, more effective than physical coercion".
(E) Customary Law as Procedural Natural Law
Emerging out of the exigencies of trade the law Merchant reflected the
concerns of the merchants themselves. Private property and the
sanctity of contracts were both recognised by participatory merchant
courts. Moreover, an element of fairness coloured the law Merchant
both in holding that "[f]raud, duress or other abuses of the will or
knowledge of either party in an exchange" invalidated contracts
whilst, as Berman notes, "even an exchange which is entered into
willingly and knowingly must not impose on either side costs that are
excessively disproportionate to the benefits to he obtained; nor may
such exchange be unduly disadvantageous to third parties or society
generally."  Indeed, Fuller notes, this principle of fairness in
exchange is bound up in the very idea of reciprocity.  Few, if
any, would knowingly enter a trade or "would voluntarily recognize a
legal system that was not expected to treat him fairly".
At the start of this section it was suggested that Fuller's procedural
natural law theory would give rise to exactly those institutions
characterizing substantive natural law. As I have attempted to
demonstrate, the law Merchant, a spontaneously evolved legal system,
bears out Fuller's thesis. Confirming this is Benson's contention that
customary legal systems (such as the law Merchant) generally exhibit
the following features:
(1) a predominant concern for individual rights and private
property; (2) laws enforced by the victims backed by reciprocal
agreements; (3) standard adjudicative procedures established to
avoid violence; (4) offences treated as torts punishable by
economic restitution; (5) strong incentives for the guilty to yield
to prescribed punishment due to threat of social ostracism; and (6)
legal change via an evolutionary process of developing customs and
Fuller closes The Morality of Law reaffirming the need to open
communication between men; without such spreading of knowledge the
extended order cannot function and man's existence will, ultimately,
be threatened, This laissez-faire vision of international free trade
the morality of aspiration offers more than good counsel and the
challenge of excellence. It here speaks with the imperious voice we
are accustomed to hear from the morality of duty. And if men will
listen, that voice, unlike that of the morality of duty, can be
heard across the boundaries and through the barriers that now
separate men from one another. 
The current public law crisis,  characterised by escalating crime
rates and soaring State spending on 'law and order', has its very
roots in "[t]he criminal justice system's neglect of crime victims.
... Crime victims must be involved in the pursuit and prosecution of
criminals if a system of law and order is to be effective."  With
no recourse to restitution victims are additionally burdened by the
costs of detection, apprehension, trial, and detention of criminals.
Piled upon this weakened structure are ever more burdenous statutes,
regulations, and informal rules expanding the sphere of State action.
As Gustave de Molinari predicted in 1849, State provision of law and
order threatens the cooperative venture of society,
[Y]ou forthwith see open up a large profession dedicated to
arbitrariness and bad management. Justice becomes slow and costly,
the police vexatious, individual liberty is no longer respected,
the price of security is abusively inflated and inequitably
apportioned, according to the power and influence of this or that
class of consumers. ... In a word, all the abuses inherent in
monopoly or in communism crop up. 
Fuller's teachings offer an alternative account of the origin and
function of law: his close identification of law with the market, a
theme Benson explores in depth, suggests that the enterprise of law
sits uncomfortably with legislation. But rather than condemn man to a
Hobbesian war of each against all, Fuller's emphasis is upon often
informal, customary legal systems to coordinate human interaction. The
creation of law through a procedure of entrepreneurial discovery and
competition, as I have shown, will recognise individual rights and
preserve the voluntary social order.
One idea, which Fuller insufficiently emphasised, now forms the basis
of the burgeoning law and economics movement. Scarcity and competing
claims generate economic incentives to establish property rights
rather than resort to violence.  With technological solutions like
barbed wire fences on the treeless prairies, or the creation of new
legal rules, individuals beyond the reach of established governments
still endeavoured to subject their conduct to the governance of rules.
As the breakdown in State law becomes more apparent, so the customary
legal systems typically characterising the open frontier will more
and more become the default of settled societies. 
I will close this account with a statement from Harold J. Berman, a
colleague of Fuller's, reflecting much of the richness of Lon Fuller's
thought that I have sought to portray here:
The conventional concept of law as a body of rules derived from the
statutes and court decisions - reflecting a theory of the ultimate
source of law in the will of the lawmaker ('the state') - is wholly
inadequate to support a study of a transnational legal culture. To
speak of the Western legal tradition is to postulate a concept of
law, not as a body of rules, but as a process, an enterprise, in
which rules have meaning only in the context of institutions and
procedures, values, and ways of thought. 
I would like to thank the following individuals for stimulating my
original interest not only in law but in the issue of competitive
legal structures: Dale Nance, Mario Rizzo, Randy Barnett, Ejan
Mackaay, Kurt Leube, and Leonard Liggio, and other faculty and
participants on various summer seminar programs run by the Institute
for Humane Studies and the Cato Institute. Special thanks must go to
Bruce L. Benson, whom I had the good fortune to meet at
Aix-en-Provence in 1990 and who subsequently provided a number of
papers and manuscripts relating to the subject matter herein. More
importantly, Professor Benson's emphasis upon the work of Lon L.
Fuller led me to the latter's scholarship. Lastly, I would like to
thank Mr. Ian Gregory of the University of York for encouraging me to
write upon Lon Fuller and the enterprise of law. Responsibility for
any errors remains mine alone.
1. Lon L. Fuller, The Morality of Law, (New Haven and London: Yale
University Press, 1969; ): p. 106.
2. Robert S. Summers, "Professor Fuller on Morality and Law", 18
Journal of Legal Education 1 (1966); reprinted in More Essays in Legal
Philosophy: General Assessments of Legal Philosophies, selected and
edited by Robert S. Summers, (Oxford: Basil Blackwell, 1971):
pp.101-130, p. l17.
3. See Robert S. Summers, Lon L. Fuller, (London: Edward Arnold
(Publishers) Ltd., 1984): p. vii, where Summers notes that his earlier
published recantation had pleased Fuller, appearing as it did shortly
before the latter's death.
4. See "A Reply To Critics" (in The Morality of Law, pp.187 242,
p.188) where Fuller outlines what he sees as the crucial rounds of
that battle. Yet, even there, Fuller intimates that Hart's Holmes
lecture (delivered at Harvard Law School in April 1957, and published
as "Positivism and the Separation of Law and Morals", 71 Harvard Law
Review 593-629 (1958); reprinted in Joel Feinberg and Hyman Gross,
ed., Philosophy of Law, Fourth Edition, (Belmont, Calif.: Wadsworth
Publishing Company, 1991; ): pp.63-81), which he regards as
round one', was actually grounded in an attempt "to defend legal
positivism against criticisms made by myself and others".
5. From H. L. A. Hart's "Review of The Morality of Law", Harvard Law
Review, Vol.78, (1965), pp. 1281-1296: pp.12951296. S
6. The best general introduction to the literature on the Law Merchant
is Bruce L. Benson's "The Spontaneous Evolution of Commercial Law",
Southern Economic Journal 55 (Jan 1989): pp. 644-661. Importantly,
Benson adopts an approach that builds upon Fuller's thought.
7. Bruno Leoni, "The law as Individual Claim", developed from lectures
given at the Freedom School Phrontistery in Colorado Springs,
Colorado, December 2-6, 1963; reprinted in Freedom and the Law,
expanded 3rd edition, (Indianapolis: Liberty Fund, 1991; ),
pp.189-203: p.202. See also Tom G. Palmer and Leonard P. Liggio,
"Freedom and the Law: A Comment on Professor Aranson's Article",
Harvard Journal of Law and Public Policy, Vol.11, No.3, pp.713-725.
8. Fuller, The Morality of Law, p.23-24.
9. Ibid, p.24.
10. Ibid, p.25-26. See ibid, note 19, Chapter 1, p.24-25 for
references to Pashukanis's ideas. Nolan's argument appears to flounder
when he considers Fuller's discussion of Pashukanis: "He is thus
forced into the bizarre position where he can quote with apparent
approval the Soviet theorist Eugene Pashukanis (Nolan, Is Law As It
Ought To Be?: Or Can We Make Any Sense of Lon L. Fuller's Concept of
The Internal Morality of Law?, (unpublished manuscript, circulated to
the Political Theory Workshop, University of York, 16/03/93, 7.3Opm):
p.20.) I argue, below, that it is because Nolan is not wholly at home
in market process economic theory that he misrepresents Fuller and
collapses his own paper into confusion, ibid, pp.20-21.
11. Fuller, The Morality Of Law, p.24.
12. In this respect, of law and institutions like private property,
contract and money serving as 'orientation maps' for human activity
(in the market process) see Richard M. Ebeling's discussion of the
ideas of Alfred Schutz, "Cooperation In Anonymity", Critical Review,
Fall 1987, pp. 50-61.
13. Fuller, The Morality of Law, p.9. It should be noted that Fuller's
analysis is in sharp contrast to Karl Marx's view of alienation
expressed in the latter's Paris Manuscripts, Economic and
Philosophical Manuscripts of 1844. In contradistinction to Marx,
Fuller quotes (pp.26-27), at length, the economist Philip Wicksteed
upon how the market order, of the division of labour, draws
14. Ibid, p.9.
15. Leoni, Freedom and The Law, esp. chap. 5, "Freedom and
16. See Robert S. Summers, Lon L. Fuller, chap. 1, pp.1-15, esp.
p.7-9, for a brief overview of Fuller's life.
17. F. A. Hayek, Law Legislation and Liberty, Vol.1, "Rules and
Order", (London and Henley: Routledge and Kegan Paul, 1973): esp.
chap. 1, "Reason and Evolution", pp.8-34.
18. Ibid, p.14.
19. Fuller, The Morality Of Law, p.91.
20. ibid, p.91.
21. Ibid, p.91.
22. Ibid, p.91.
23. Ibid, p.106. See also Tom W. Bell, "Polycentric Law", Humane
Studies Review, Vol.7, No.1, (Winter, 1991/92): pp. 1-10, and Bruce L.
Benson, The Enterprise of Law: Justice Without the State, (San
Francisco: Pacific Research Institute, 1990).
II THE MORALITY OF LAW
(A) The Two Moralities
1. Fuller, The Morality Of Law, p.162.
2. Ibid, p.162.
3. Ibid, p.5.
5. See Adam Smith, The Theory of Moral Sentiments, 1, 442; cited by
Fuller, ibid, p.6.
6. Fuller, The Morality of Law, p.30.
7. Ibid, p.13.
8. Ibid, p.9.
9. Ibid, p.9.
10. I'm not entirely happy with this characterization but feel that
this best expresses the social requirement to observe law and to what
extent may dereliction or fault attract legal censure. Perhaps Ronald
Dworkin's phrase "Law's Empire" would be more appropriate to the idea
that I'm trying to present here.
11. Fuller, The Morality Of Law, pp.9-10, p.10.
12. Ibid, p.10.
13. Ibid, p.10.
14. Ibid, p.11.
15. Ibid, p.11.
16. Ibid, p.11.
17. Ibid, p.12. This point is also forcefully made by Professor Kurt
Leube in his lecture Justice, Rule of Law and Legal Positivism given
at the Universite' d'Ete', Aix-en-Provence, France, August 1991.
18. An excellent discussion of this distinction is to be found in
Loren Lomasky's Persons, Rights and the Moral Community, (New York and
Oxford: Oxford University Press, 1987): esp. chap. 5, pp.84-110.
19. Herbert Spencer, The Principles of Ethics, (1892-93; reprinted,
with an Introduction by Tibor R. Machan, Indianapolis: Liberty Press,
1978): Vol.11, pp. 61-62; see also discussion of Spencer in Ralph
Raico, Classical Liberalism in the Twentieth Century, (Fairfax,
Virginia: Institute for Humane Studies, 1986/7).
20. "But it is well-nigh impossible to preserve lasting peace in a
society in which the rights and duties of the respective classes are
different. Whoever denies rights to a part of the population must
always be prepared for a united attack by the disenfranchised on the
privileged. Class privileges must disappear so that the conflict over
them may cease." Ludwig von Mises, The Free and Prosperous
Commonwealth, (Princeton: D. van Nostrand, 1962), p.28; cited by
William Baumgarth, "Ludwig von Mises and the Justification of the
Liberal Order" in Laurence S. Moss ed., The Economics of Ludwig von
Mises: Towards a Critical Reappraisal, (Kansas City: Sheed and Ward
Inc., Institute for Humane Studies, 1976): pp.79-99, pp. 90-91. See
also Mises's "The Clash of Group Interests", reprinted in Richard M.
Ebeling ed., Money, Method, and the Market Process: Essays by Ludwig
von Mises, (Norwell, Massachusetts: KIuwer Academic Publishers,
Praxaeology Press of the Ludwig von Mises Institute, 1990):
21. Fuller, The Morality Of Law, p.12.
22. Nolan, Is Law As It Ought To Be? , p.21.
23. Ibid, p.21.
24. Mises, The Free and Prosperous Commonwealth, pp. 85-86; cited by
Baumgarth, "Ludwig von Mises and the Justification of the Liberal
Order", pp.96-97. See also the economic arguments supporting this
proposition in F. A. Hayek, "The Use of Knowledge in Society", (Menlo
Park, California: Institute for Humane Studies, 1977; [revised and
reprinted from The American Economic Review, Vol.35, No.4, Sept.
1945]); and his The Fatal Conceit: The Errors of Socialism, Vol. 1, of
W. W. Bartley III ed., The Collected Works of F A. Hayek, (Chicago:
University of Chicago Press, 1988). See also Richard Ebeling's
"Introduction", to Money Method, and the Market Process: Essays by
Ludwig von Mises, for references to Mises' arguments in this
connection. These economic arguments are also taken up by Ayn Rand in
her essay "The Anti-Industrial Revolution", printed in her The New
Left: The Anti-Industrial Revolution, (New York: New American Library,
Inc., 1975; ): pp.127-151.
25. Nolan, Is Law As It Ought To Be?, p.21.
(B) The Internal Morality of Law
26. Emphasised by Hart in concluding his "Review", p.1295.
27. Ibid, p.1295.
28. Fuller, The Morality of Law, pp.245-253.
29. Driving the moral urgency of Fuller's fictitious example was the
very real problem faced in the wake of the overthrow of the Nazi
regime at the end of World War II. Today, similar demands are being
voiced across Eastern Europe for the "stooges" of the secret police
forces of the, now deposed, Communist ruling elites to be brought to
30. The idea of lynching, or at least popular justice, seems
overlooked as a solution to some extent by Fuller. Yet, as he
[i]f we accept the view that the central purpose of law is to
furnish baselines for human interaction, it then becomes apparent
why the existence of enacted law as an effectively functioning
system depends upon the establishment of stable interactional
expectancies between lawgiver and subject. On the one hand, the
lawgiver must be able to anticipate what the citizenry as a whole
will accept as law and generally observe the body of rules he has
promulgated. On the other hand, the legal subject must be able to
anticipate that government will itself abide by its own declared
rules. ... A gross failure in the realisation of either of these
anticipations - of government toward citizens and of citizens
toward government - can have the result that the most carefully
drafted code will fail to become a functioning system of law.
(Fuller, The Principles of Social Order: Selected Essays of Lon L.
Fuller, edited with an introduction by Kenneth I. Winston, (Durham,
N. C.: Duke University Press, 1981): pp.235-236; cited by Benson,
The Enterprise of Law, pp. 320-321.) (emphasis added by Benson.)
Now, with the collapse of the regimes in Eastern Europe, apart from
their massively dislocated economies, their main problem is the
perverted legal systems. A sufficient breakdown "must - if we are to
judge the matter with any rationality at alI - release men from those
duties that had as their only reason for being, maintaining a pattern
of social interaction that has now been destroyed." (Fuller, The
Morality of Law, p.22.) It is in this context that a review of the
role of vigilance committees in similar historical situations is most
useful. With the collapse of public law, Benson, in "Violence and
Vigilante Justice in the American West" (Appendix to Chap. 12, "The
legal monopoly on Coercion", The Enterprise of Law, pp.312-321.),
documents how much was achieved by widely supported vigilante
committees that were remarkable in their restraint and respect for due
process and other procedural concerns. Animating them was the desire
to preserve the social bond by enforcing minimum conceptions of social
duty (in particular they expelled from California individuals
convicted of crimes elsewhere and convicts from Australia) and in
striking at political corruption.
31. Fuller, The Morality of Law, p.39.
32. See his excellent "Five Minutes of legal Philosophy", translated
by Stanley L. Paulson; reprinted in Feinberg and Gross, Philosophy of
Law, pp. 103-104; (published originally in Rhein-Neckar-Zeitung,
12/8/45; republished in the 8th edition of Radbruch's
Rechtsphilosophie, ed. by Erik Wolf and Hans-Peter Schneider
(Stuttgart: K. F. Koehler Verlag, 1973) pp. 327-29). Other references
to Radbruch's ideas can be found in Fuller's "Positivism and Fidelity
to the Law - A Reply to Professor Hart", 71 Harvard Law Review 630-72
(1958); (reprinted in Feinberg and Gross, Philosophy of Law,
pp.81-102, in notes 19 and 25, p.102. In his article Fuller also notes
that all three (Radbruch, Hart, and himself) favoured retrospective
legislation to solve the "Problem of the Grudge Informer", but for
necessarily different reasons.
33. Fuller, The Morality Of Law, p.41.
34. Ibid, p.43.
35. Albert Jay Nock, "The State", the Freeman, June 13 and June 20,
1923, (reprinted in Charles H...Hamilton ed., The State of the Union:
Essays in Social Criticism by Albert Jay Nock, (Indianapolis: Liberty
Press, 1991): pp.222-9).
36. See my paper, The Right to Revolution: Toleration, Liberty and the
State in the Thought of John Locke's Thought and the Early Liberals,
Libertarian Heritage No.11, Libertarian Alliance, London, 1994, for an
extensive elaboration of this theme.
37. For, "[i]f we view the law as providing guideposts for human
interaction, we shall be able to see that any infringement of the
demands of legality tends to undermine men's confidence in, and their
respect for, law generally." (Fuller, The Morality of Law, p.222.)
38. Ibid, p.94.
39. Summarised by Fuller, ibid. See note 10, "Introduction", above for
40. Ibid, p.25.
(C) The Positivist Quest and Hart's Review
41. This section draws upon Summers' excellent discussion in "The
Differentiation of law from non-law", chap. 4, Lon L. Fuller, pp.
42. Lon L. Fuller, The Law in Quest of Itself, (Evanston, III.:
Northwestern University Press, 1940; [Boston, Massachusetts: Beacon
Press, 1966]); cited by Summers, ibid, p.42.
43. F. A. Hayek, The Counter-Revolution, of Science: Studies in the
abuse of Reason, (Indianapolis: Liberty Press, 1979; [Glencoe, Ill.:
The Free Press, 1952]).
44. Hart, "Review", pp.1281-1296.
45. Summers, Lon L. Fuller, p.42.
46. Hart, "Review", p.1281.
47. Ibid, p.1284.
48. Ibid, p.1285.
49. Ibid, p.1286.
50. Ibid, p.1287.
51. Fuller, The Morality Of Law, p.203.
52. Hart, "Review", pp.1292-93.
53. Ibid, pp.1292-93.
54. H. L. A. Hart, The Concept of Law, (Oxford: Oxford University
55. Ibid; excerpted and reprinted in Feinberg and Gross, Philosophy Of
56. Hart, "Review", p.1293.
57. Hart, "Separation of Law and Morals"; reprinted in Feinberg and
Gross, Philosophy Of Law, p.67.
58. See note 30, "The Morality of Law", above for references to
59. Benson, The Enterprise of Law, p.322; sec also Fuller, The
Principles of Social Order, p.195.
III CUSTOMARY LAW AND THE LAW MERCHANT: ELABORATING FULLER'S PROCEDURAL NATURAL
1. Adam Ferguson, An Essay on Civil Society, (Edinburgh: Edinburgh
University Press, 1966): p.122; cited by Norman P. Barry in his
bibliographical essay, "The Tradition of Spontaneous Order",
Literature of Liberty: A Review of Contemporary Liberal Thought, Vol.
V No.2, Summer 1982, pp.7-58: p. 24.
2. For, "[l]anguage, religion, law, even the state itself, and to
mention a few economic social phenomena, the phenomena of markets, of
competition, of money, and numerous other social structures are
already met with in epochs of history where we cannot properly speak
of purposeful activity of the community as such directed at
establishing them. Nor can we speak of such activity on the part of
the rulers." (Carl Menger, Investigations into the Method of the
Social Sciences with Special Reference to Economics, with a new
introduction by Lawrence H. White, ed., Louis Schneider, Trans.,
Francis J. Nock, (New York and London: New York University Press,
1985; ): p.146.)
(A) The Medieval Law Merchant
3. See Bruce L. Benson's "The Spontaneous Evolution of Commercial Law"
and his The Enterprise of Law for a historical and theoretical
discussion of the Law Merchant.
4. Lon L. Fuller, The Principles of Social Order, p.213; cited by
Benson, ibid, p.643.
(B) Customary Law
5. Hayek, Law, Legislation and Liberty, Vol.1, pp.96-97.
6. Ibid, Vol.1, p.97. 10
7. Benson, "The Spontaneous Evolution of Commercial Law", p. 645.
Fuller, The Morality of Law, p.23.
8. Fuller, The Morality of Law, p. 23
(C) The Evolution of Customary Law
10. See Benson, "The Spontaneous Evolution of Commercial Law", p.650.
11. Ibid, p.648.
12. Fuller, The Morality Of Law, p.233.
13. For further discussion see Hayek, Law, Legislation and Liberty;
Leoni, Freedom and the Law; Palmer and Liggio, "Freedom and the Law: A
Comment on Professor Aranson's Article"; and especially Benson, The
Enterprise of Law, in this respect. As Leoni, in Freedom and the Law,
No free-trade system can actually work if it is not rooted in a
legal and political system that helps citizens to counteract
interference with their business on the part of other people,
including the authorities. But a characteristic feature of
free-trade systems seems also to be that they are compatible, and
probably compatible only, with such legal and political Systems as
have little or no recourse to legislation, at least as far as
private life and business are concerned. On the other hand,
socialist systems cannot continue to exist without the help of
14. Benson, "The Spontaneous Evolution of Commercial Law", p. 650.
15. Ibid, p.650.
16. Fuller; The Morality of Law, pp.44-45.
(D) Consent - The Foundation of Customary Law
17. Benson, "The Spontaneous Evolution of Commercial Law", p. 657.
18. Benson notes that a similar situation prompted the emergence of
the "rent-a-judge" system in California:
An 1872 California statute states that individuals in a dispute
have the right to have a full court hearing before any referee they
might choose. In 1980 there was a 70,000 case public court backlog
in California with a median pretrial delay of 50 and one-months.
Thus, it is not too surprising that two lawyers who wanted a
complex business case settled quickly 'rediscovered' the statute;
they found a retired judge with expertise in the area of the
dispute, paid him at attorney's fee rates and saved their clients a
tremendous amount of time and expense. (Benson, ibid, p.657.)
See also in this respect, Gary Pruitt, "California's Rent-a-Judge
Justice", Journal of Contemporary Studies, Spring 1982, pp. 49-57;
cited and discussed by Benson, ibid, pp. 657-658.
19. William C. Wooldridge, Uncle Sam, the Monopoly Man, (New Rochelle,
New York: Arlington House, 1970); cited by Benson, "The Spontaneous
Evolution of Commercial Law", p. 649.
(E) Customary Law as Procedural Natural Law
20. Benson, ibid, p.649.
21. Harold J. Berman, Law and Revolution: The Formation of Western
Legal Tradition, (Cambridge, Massachusetts: Harvard University Press,
1983): p.343; cited by Benson, ibid, p.649.
22. Fuller; The Morality of Law, p.23.
23. Benson, "The Spontaneous Evolution of Commercial Law", p. 649.
24. Benson, The Enterprise of Law, p.21; from Benson, "Enforcement of
Private property Rights in primitive Societies: Law Without
Government", Journal of Libertarian Studies, 9 (Winter, 1989): pp.
1-26; wording from Tom W. Bell, "Polycentric Law", p.4.
Two items I did not have to hand when writing this paper, which are
especially relevant to Fuller's conception of customary law, were:
Lon L. Fuller, Anatomy of The Law, New York, Frederick A. Praeger,
1968, see especially Part II, "The Sources of Law", pp. 43-119.
Lon L. Fuller, "Human Interaction and the Law", in Principles of
Social Order, pp.211-246.
1. Fuller, The Morality Of Law, p.186.
2. See Benson, "Comment: The Lost Victim and the Failure of the Public
Law Experiment" and The Enterprise of Law; and Leonard P. Liggio, "The
Market for Rules, Privatization, and the Crisis of the Theory of
Public Goods", George Mason University Law Review, Vol.11, No.2,
(Winter, 1988): pp. 139-150; from a symposium: Constitutional
Protections of Economic Activity: How They Promote Individual Freedom.
3. Benson, "Comment: The Lost Victim and the Failure of the Public Law
4. Gustave de Molinari, The Production of Security, p.277 (J. Mullock
trans. 1977); cited by Benson, ibid, p.419.
5. See Terry L. Anderson and P. J. Hill, "An American Experiment in
Anarcho-Capitalism: The Not so Wild, Wild West", Journal of
Libertarian Studies, Vol.3, No.1, (1979): pp.9-29.
6. Ibid; Benson, The Enterprise of Law, "Legal Evolution in Primitive
Societies", Journal of Institutional and Theoretical Economics (JITE),
Vol.144, No.5, (December, 1988): pp. 772-788, "Enforcement of Private
property Rights in Primitive Societies: Law Without Government",
Journal of Libertarian Studies, 9 (Winter, 1989): pp.1-26, "An
Evolutionary Contractarian View of Primitive Law: The Institutions and
Incentives Arising Under Customary Indian Law", The Review of Austrian
Economics, Vol.5, No.1, (1991): pp.65-89; (author's proof copy); and
Tom W. Bell, "Polycentric Law".
7. Benson, "The Spontaneous Evolution of Commercial Law"; and Leonard
P. Liggio, "The Market for Rules, Privatization, and the Crisis of the
Theory of Public Goods".
8. Harold J. Berman, Law and Revolution, p.11; cited by Liggio, ibid,
Anderson, Terry L. and Hill, P.1., "An American Experiment in
Anarcho-Capitalism: The Not so Wild, Wild West", Journal of
Libertarian Studies, Vol.3, No.1, (1979): pp.9-29.
Barry, Norman P., "The Tradition of Spontaneous Order", Literature of
Liberty: A Review of Contemporary Liberal Thought Vol. V No.2, Summer
Baumgarth, William, "Ludwig von Mises and the Justification of the
Liberal Order" in Laurence S. Moss ed., The Economics of Ludwig von
Mises: Towards a Critical Reappraisal, (Kansas City: Sheed and Ward
Inc., Institute for Humane Studies, 1976): pp.79-99.
Bell, Tom W., "Polycentric Law", Humane Studies Review, Vol.7, No.1,
(Winter, 1991192): pp.1-10.
Benson, Bruce L., "Comment: The Lost Victim and Other Failures of the
Public Law Experiment", Harvard Journal of Law and Public Policy,
Vol.9, No.2, (Spring, 1986): pp. 299-427.
_____, "legal Evolution in Primitive Societies", Journal of
Institutional and Theoretical Economics (JITE), Vol.144, No. 5,
(December, 1988): pp.772-788.
_____, "The Spontaneous Evolution of Commercial Law", Southern
Economic Journal 55 (Jan 1989): pp. 644-661
_____, "Enforcement of Private Property Rights in Primitive Societies:
Law Without Government", Journal of Libertarian Studies, 9 (Winter,
_____, The Enterprise of Law: Justice without the State, (San
Francisco: Pacific Research Institute, 1990). 11
_____, Customary Law and The Free Market; Law Without the State,
(lecture given at the 13th Universite' d'Et6 de Ia Nouvelle Economie,
Aix-en-Provence, France, August 27th - September 1st, 1990).
_____,"An Evolutionary Contractarian View of Primitive Law: The
Institutions and Incentives Arising Under Customary Indian Law", The
Review of Austrian Economics, Vol.5, No. 1, (1991): pp. 65-89;
(author's proof copy).
Berman, Harold J., Law and Revolution: The Formation of Western Legal
Tradition, (Cambridge, Massachusetts: Harvard University Press, 1983).
Ebeling, Richard M., "Cooperation In Anonymity", Critical Review, Fall
1987, pp. 50-61.
Fuller, Lon L., "The Case of the Speluncean Explorers", Harvard Law
Review, Vol.62, (1949): pp.616-645; reprinted in Feinberg and Gross,
Philosophy of Law, pp.530-545.
_____"Positivism and Fidelity to the Law - A Reply to Professor Hart",
71 Harvard Law Review 630-72(1958); reprinted in Feinberg and Gross,
Philosophy of Law, pp.81-102.
_____,The Morality of Law, (New Haven and London: Yale University
Press, 1969; ).
_____,Legal Fictions, (Stanford, California: Stanford University
_____, The Principles of Social Order: Selected Essays of Lon L.
Fuller, edited with an introduction by Kenneth I. Winston, (Durham,
North Carolina: Duke University Press, 2nd printing 1982; ).
Hart, H. L. A., "Positivism and the Separation of Law and Morals", 71
Harvard Law Review 593-629 (1958); reprinted in Joel Feinberg and
Hyman Gross ed., Philosophy of Law, Fourth Edition, (Belmont,
California: Wadsworth Publishing Company, 1991; ): pp.63-81).
_____, The Concept of Law, (Oxford: Oxford University Press, 1961);
excerpted and reprinted in Feinberg and Gross, Philosophy Of Law, pp.
_____, "Review of The Morality of Law", Harvard Law Review, Vol.78,
(1965), pp.1281-1296: pp.1295-1296.
Hayek, F. A., "The Use of Knowledge in Society", (Menlo Park,
California: Institute for Humane Studies, 1977; [revised and reprinted
from The American Economic Review, Vol.35, No. 4, Sept. 1945]).
_____,The Counter-Revolution of Science: Studies in the abuse of
Reason, (Indianapolis: Liberty Press, 1979; [Glencoe, Illinois: The
Free Press, 1952]).
_____,Law, Legislation and Liberty, Vol.1, "Rules and Order", (London
and Henley: Routledge and Kegan Paul, 1973).
_____,The Fatal Conceit: The Errors of Socialism, Vol.1, of W. W.
Bartley III ed., The Collected Works of F. A. Hayek, (Chicago:
University of Chicago Press, 1988).
Leoni, Bruno, "The Law as Individual Claim", developed from lectures
given at the Freedom School Phrontistery in Colorado Springs,
Colorado, December 2-6, 1963; reprinted in Freedom and the Law,
expanded 3rd edition, (Indianapolis: Liberty Fund, 1991; ),
_____,Freedom and the Law, expanded 3rd edition, (Indianapolis:
Liberty Fund, 1991; ).
Leube, Kurt, Justice; Rule Of Law and Legal Positivism, (lecture given
at the 14th Universite d'Ete' de Ia Nouvelle Economic,
Aix-en-Provence, France, August, 1991).
Liggio, Leonard P., "The Market for Rules, Privatisation, and the
Crisis of the Theory of Public Goods", George Mason University Law
Review, Vol.11, No.2, (Winter, 1988): pp.139-150.
Lomasky, Loren E., Persons, Rights, and the Moral Community, (New York
and Oxford: Oxford University Press, 1987).
MacCormick, Neil, H. L. A. Hart, (London: Edward Arnold, 1981).
MacLeod-Cullinane, Barry, The Right to Revolution: Toleration, Liberty
and the State in the Thought of John Locke and the Early Liberals
(Libertarian Heritage No.11, London: Libertarian Alliance, 1994).
Menger, Carl, Investigations into the Method of the Social Sciences
with Special Reference to Economics, with a new introduction by
Lawrence H. White, ed., Louis Schneider, Trans., Francis J. Neck, (New
York and London: New York University Press, 1985; ).
Mises, Ludwig von, The Free and Prosperous Commonwealth, (Princeton:
D. van Nostrand, 1962).
____, "The Clash of Group Interests", reprinted in Richard M. Ebeling
ed., Money Method, and the Market Process: Essays by Ludwig von Mises,
(Norwell, Massachusetts: KIuwer Academic Publishers, Praxaeology Press
of the Ludwig von Mises Institute, 1990): pp.202-214.
Nock, Albert Jay, "The State", the Freeman, June 13 and June 20, 1923,
(reprinted in Charles H. Hamilton ed., The State of the Union: Essays
in Social Criticism by Albert Jay Nock; (Indianapolis: Liberty Press,
Nolan, Jeremy, Is Law As It Ought To Be? 0r, Can We Make Any Sense of
Lon L. Fuller's Concept of The Internal Morality of Law? ,
(unpublished manuscript, circulated to the Political Theory Workshop,
University of York, 16103193, 7.3Opm).
Osterfeld, David, "Anarchism and the Public Goods Issue: Law; Courts,
and the Police", Journal of Libertarian Studies, Vol. 9, No.1,
(Winter, 1989): pp. 48-68.
Palmer, Tom G. and Liggio, Leonard P., "Freedom and the Law: A Comment
on Professor Aranson's Article", Harvard Journal of Law and Public
Policy, Vol.11, No.3, pp.713-725.
Radbruch, Gustav, "Five Minutes of legal Philosophy", translated by
Stanley L. Paulson; reprinted in Feinberg and Gross, Philosophy of
Law, pp.103-104; (published originally in Rhein-Neckar-Zeitung,
12/8/45; republished in the 8th edition of Radbruch's
Rechtsphilosophie, ed. by Erik Wolf and Hans-Peter Schneider
(Stuttgart: K. F Koehler Verlag, 1973) pp.327-29).
Raico, Ralph, Classical Liberalism in the Twentieth Century, (Fairfax,
Virginia: Institute for Humane Studies, 198617.).
Rand, Ayn, "The Anti-Industrial Revolution", The New Left: The
Anti-Industrial Revolution, (New York: New American Library, Inc.,
1975; ): pp.127-151.
Spencer, Herbert, The Principles of Ethics, (1892-93; reprinted, with
an Introduction by Tibor R. Machan, Indianapolis: Liberty Press,
Summers, Robert S., "Professor Fuller on Morality and Law", 18 Journal
of Legal Education 1 (1966); reprinted in More Essays in Legal
Philosophy: General Assessments of Legal Philosophies, Selected and
Edited by Robert S. Summers, (Oxford: Basil Blackwell, 1971):
_____, Lon L. Fuller, (London: Edward Arnold (Publishers) Ltd., 1984).
Harvard Law Review
Vol. 62, No. 4, February 1949 © 1949 by
The Harvard Law Review Association
Cambridge, Mass., U.S.A.
THE CASE OF THE SPELUNCEAN EXPLORERS
LON L. FULLER
IN THE SUPREME COURT OF NEWGARTH, 4300
The defendants, having been indicted for the crime of murder, were convicted
and sentenced to be hanged by the Court of General Instances of the County of
Stowfield. They bring a petition of error before this Court. The facts
sufficiently appear in the opinion of the Chief Justice.
TRUEPENNY, C. J. The four defendants are members of the Speluncean Society,
an organization of amateurs interested in the exploration of caves. Early in
May of 4299 they, in the company of Roger Whetmore, then also a member of the
Society, penetrated into the interior of a limestone cavern of the type found
in the Central Plateau of this Commonwealth. While they were in a position
remote from the entrance to the cave, a landslide occurred. Heavy boulders fell
in such a manner as to block completely the only known opening to the cave.
When the men discovered their predicament they settled themselves near the
obstructed entrance to wait until a rescue party should remove the detritus
that prevented them from leaving their underground prison. On the failure of
Whetmore and the defendants to return to their homes, the Secretary of the
Society was notified by their families. It appears that the explorers had left
indications at the headquarters of the Society concerning the location of the
cave they proposed to visit. A rescue party was promptly dispatched to the
The task of rescue proved one of overwhelming difficulty. It was necessary to
supplement the forces of the original party by repeated increments of men and
machines, which had to be conveyed at great expense to the remote and isolated
region in which the cave was located. A huge temporary camp of workmen,
engineers, geologists, and other experts was established. The work of removing
the obstruction was several times frustrated by fresh landslides. In one of
these, ten of the workmen engaged in clearing the entrance were killed. The
treasury of the Speluncean Society was soon exhausted in the rescue effort, and
the sum of eight hundred thousand frelars, raised partly by popular
subscription and partly by legislative grant, was expended before the
imprisoned men were rescued. Success was finally achieved on the thirty-second
day after the men entered the cave.
Since it was known that the explorers had carried with them only scant
provisions, and since it was also known that there was no animal or vegetable
matter within the cave on which they might subsist, anxiety was early felt that
they might meet death by starvation before access to them could be obtained. On
the twentieth day of their imprisonment it was learned for the first time that
they had taken with them into the cave a portable wireless machine capable of
both sending and receiving messages. A similar machine was promptly installed
in the rescue camp and oral communication established with the unfortunate men
within the mountain. They asked to be informed how long a time would be
required to release them. The engineers in charge of the project answered that
at least ten days would be required even if no new landslides occurred. The
explorers then asked if any physicians were present, and were placed in
communication with a committee of medical experts. The imprisoned men described
their condition and the rations they had taken with them, and asked for a
medical opinion whether they would be likely to live without food for ten days
longer. The chairman of the committee of physicians told them that there was
little possibility of this. The wireless machine within the cave then remained
silent for eight hours. When communication was re-established the men asked to
speak again with the physicians. The chairman of the physicians' committee was
placed before the apparatus, and Whetmore, speaking on behalf of himself and
the defendants, asked whether they would be able to survive for ten days longer
if they consumed the flesh of one of their number. The physicians' chairman
reluctantly answered this question in the affirmative. Whetmore asked whether
it would be advisable for them to cast lots to determine which of them should
be eaten. None of the physicians present was willing to answer the question.
Whetmore then asked if there were among the party a judge or other official of
the government who would answer this question. None of those attached to the
rescue camp was willing to assume the role of advisor in this matter. He then
asked if any minister or priest would answer their question, and none was found
who would do so. Thereafter no further messages were received from within the
cave, and it was assumed (erroneously, it later appeared) that the electric
batteries of the explorers' wireless machine had become exhausted. When the
imprisoned men were finally released it was learned that on the twenty-third
day after their entrance into the cave Whetmore had been killed and eaten by
From the testimony of the defendants, which was accepted by the jury, it
appears that it was Whetmore who first proposed that they might find the
nutriment without which survival was impossible in the flesh of one of their
own number. It was also Whetmore who first proposed the use of some method of
casting lots, calling the attention of the defendants to a pair of dice he
happened to have with him. The defendants were at first reluctant to adopt so
desperate a procedure, but after the conversations by wireless related above,
they finally agreed on the plan proposed by Whetmore. After much discussion of
the mathematical problems involved, agreement was finally reached on a method
of determining the issue by the use of the dice.
Before the dice were cast, however, Whetmore declared that he withdrew from the
arrangement, as he had decided on reflection to wait for another week before
embracing an expedient so frightful and odious. The others charged him with a
breach of faith and proceeded to cast the dice. When it came Whetmore's turn,
the dice were cast for him by one of the defendants, and he was asked to
declare any objections he might have to the fairness of the throw. He stated
that he had no such objections. The throw went against him, and he was then put
to death and eaten by his companions.
After the rescue of the defendants, and after they had completed a stay in a
hospital where they underwent a course of treatment for malnutrition and shock,
they were indicted for the murder of Roger Whetmore. At the trial, after the
testimony had been concluded, the foreman of the jury (a lawyer by profession)
inquired of the court whether the jury might not find a special verdict,
leaving it to the court to say whether on the facts as found the defendants
were guilty. After some discussion, both the Prosecutor and counsel for the
defendants indicated their acceptance of this procedure, and it was adopted by
the court. In a lengthy special verdict the jury found the facts as I have
related them above, and found further that if on these facts the defendants
were guilty of the crime charged against them, then they found the defendants
guilty. On the basis of this verdict, the trial judge ruled that the defendants
were guilty of murdering Roger Whetmore. The judge then sentenced them to be
hanged, the law of our Commonwealth permitting him no discretion with respect
to the penalty to be imposed. After the release of the jury, its members joined
in a communication to the Chief Executive asking that the sentence be commuted
to an imprisonment of six months. The trial judge addressed a similar
communication to the Chief Executive. As yet no action with respect to these
pleas has been taken, as the Chief Executive is apparently awaiting our
disposition of this petition of error.
It seems to me that in dealing with this extraordinary case the jury and the
trial judge followed a course that was not only fair and wise, but the only
course that was open to them under the law. The language of our statute is well
known: "Whoever shall willfully take the life of another shall be punished by
death." N. C. S. A. (N. S.) § 12-A. This statute permits of no exception
applicable to this case, however our sympathies may incline us to make
allowance for the tragic situation in which these men found themselves.
In a case like this the principle of executive clemency seems admirably suited
to mitigate the rigors of the law, and I propose to my colleagues that we
follow the example of the jury and the trial judge by joining in the
communications they have addressed to the Chief Executive. There is every
reason to believe that these requests for clemency will be heeded, coming as
they do from those who have studied the case and had an opportunity to become
thoroughly acquainted with all its circumstances. It is highly improbable that
the Chief Executive would deny these requests unless he were himself to hold
hearings at least as extensive as those involved in the trial below, which
lasted for three months. The holding of such hearings (which would virtually
amount to a retrial of the case) would scarcely be compatible with the function
of the Executive as it is usually conceived. I think we may therefore assume
that some form of clemency will be extended to these defendants. If this is
done, then justice will be accomplished without impairing either the letter or
spirit of our statutes and without offering any encouragement for the disregard
FOSTER, J. I am shocked that the Chief Justice, in an effort to escape the
embarrassments of this tragic case, should have adopted, and should have
proposed to his colleagues, an expedient at once so sordid and so obvious. I
believe something more is on trial in this case than the fate of these
unfortunate explorers; that is the law of our Commonwealth. If this Court
declares that under our law these men have committed a crime, then our law is
itself convicted in the tribunal of common sense, no matter what happens to the
individuals involved in this petition of error. For us to assert that the law
we uphold and expound compels us to a conclusion we are ashamed of, and from
which we can only escape by appealing to a dispensation resting within the
personal whim of the Executive, seems to me to amount to an admission that the
law of this Commonwealth no longer pretends to incorporate justice.
For myself, I do not believe that our law compels the monstrous conclusion that
these men are murderers. I believe, on the contrary, that it declares them to
be innocent of any crime. I rest this conclusion on two independent grounds,
either of which is of itself sufficient to justify the acquittal of these
The first of these grounds rests on a premise that may arouse opposition until
it has been examined candidly. I take the view that the enacted or positive law
of this Commonwealth, including all of its statutes and precedents, is
inapplicable to this case, and that the case is governed instead by what
ancient writers in Europe and America called "the law of nature."
This conclusion rests on the proposition that our positive law is predicated on
the possibility of men's coexistence in society. When a situation arises in
which the coexistence of men becomes impossible, then a condition that
underlies all of our precedents and statutes has ceased to exist. When that
condition disappears, then it is my opinion that the force of our positive law
disappears with it. We are not accustomed to applying the maxim cessante
ratione legis, cessat et ipsa lex to the whole of our enacted law, but I
believe that this is a case where the maxim should be so applied.
The proposition that all positive law is based on the possibility of men's
coexistence has a strange sound, not because the truth it contains is strange,
but simply because it is a truth so obvious and pervasive that we seldom have
occasion to give words to it. Like the air we breathe, it so pervades our
environment that we forget that it exists until we are suddenly deprived of it.
Whatever particular objects may be sought by the various branches of our law,
it is apparent on reflection that all of them are directed toward facilitating
and improving men's coexistence and regulating with fairness and equity the
relations of their life in common. When the assumption that men may live
together loses its truth, as it obviously did in this extraordinary situation
where life only became possible by the taking of life, then the basic premises
underlying our whole legal order have lost their meaning and force.
Had the tragic events of this case taken place a mile beyond the territorial
limits of our Commonwealth, no one would pretend that our law was applicable to
them. We recognize that jurisdiction rests on a territorial basis. The grounds
of this principle are by no means obvious and are seldom examined. I take it
that this principle is supported by an assumption that it is feasible to impose
a single legal order upon a group of men only if they live together within the
confines of a given area of the earth's surface. The premise that men shall
coexist in a group underlies, then, the territorial principle, as it does all
of law. Now I contend that a case may be removed morally from the force of a
legal order, as well as geographically. If we look to the purposes of law and
government, and to the premises underlying ourpositive law, these men when they
made their fateful decision were as remote from our legal order as if they had
been a thousand miles beyond our boundaries. Even in a physical sense, their
underground prison was separated from our courts and writ-servers by a solid
curtain of rock that could be removed only after the most extraordinary
expenditures of time and effort.
I conclude, therefore, that at the time Roger Whetmore's life was ended by
these defendants, they were, to use the quaint language of nineteenth-century
writers, not in a "state of civil society" but in a "state of nature." This has
the consequence that the law applicable to them is not the enacted and
established law of this Commonwealth, but the law derived from those principles
that were appropriate to their condition. I have no hesitancy in saying that
under those principles they were guiltless of any crime.
What these men did was done in pursuance of an agreement accepted by all of
them and first proposed by Whetmore himself. Since it was apparent that their
extraordinary predicament made inapplicable the usual principles that regulate
men's relations with one another, it was necessary for them to draw, as it
were, a new charter of government appropriate to the situation in which they
It has from antiquity been recognized that the most basic principle of law or
government is to be found in the notion of contract or agreement. Ancient
thinkers, especially during the period from 1600 to 1900, used to base
government itself on a supposed original social compact. Skeptics pointed out
that this theory contradicted the known facts of history, and that there was no
scientific evidence to support the notion that any government was ever founded
in the manner supposed by the theory. Moralists replied that, if the compact
was a fiction from a historical point of view, the notion of compact or
agreement furnished the only ethical justification on which the powers of
government, which include that of taking life, could be rested. The powers of
government can only be justified morally on the ground that these are powers
that reasonable men would agree upon and accept if they were faced with the
necessity of constructing anew some order to make their life in common
Fortunately, our Commonwealth is not bothered by the perplexities that beset
the ancients. We know as a matter of historical truth that our government was
founded upon a contract or free accord of men. The archeological proof is
conclusive that in the first period following the Great Spiral the survivors of
that holocaust voluntarily came together and drew up a charter of government.
Sophistical writers have raised questions as to the power of those remote
contractors to bind future generations, but the fact remains that our
government traces itself back in an unbroken line to that original charter.
If, therefore, our hangmen have the power to end men's lives, if our sheriffs
have the power to put delinquent tenants in the street, if our police have the
power to incarcerate the inebriated reveler, these powers find their moral
justification in that original compact of our forefathers. If we can find no
higher source for our legal order, what higher source should we expect these
starving unfortunates to find for the order they adopted for themselves?
I believe that the line of argument I have just expounded permits of no
rational answer. I realize that it will probably be received with a certain
discomfort by many who read this opinion, who will be inclined to suspect that
some hidden sophistry must underlie a demonstration that leads to so many
unfamiliar conclusions. The source of this discomfort is, however, easy to
identify. The usual conditions of human existence incline us to think of human
life as an absolute value, not to be sacrificed under any circumstances. There
is much that is fictitious about this conception even when it is applied to the
ordinary relations of society. We have an illustration of this truth in the
very case before us. Ten workmen were killed in the process of removing the
rocks from the opening to the cave. Did not the engineers and government
officials who directed the rescue effort know that the operations they were
undertaking were dangerous and involved a serious risk to the lives of the
workmen executing them? If it was proper that these ten lives should be
sacrificed to save the lives of five imprisoned explorers, why then are we told
it was wrong for these explorers to carry out an arrangement which would save
four lives at the cost of one?
Every highway, every tunnel, every building we project involves a risk to human
life. Taking these projects in the aggregate, we can calculate with some
precision how many deaths the construction of them will require; statisticians
can tell you the average cost in human lives of a thousand miles of a four-lane
concrete highway. Yet we deliberately and knowingly incur and pay this cost on
the assumption that the values obtained for those who survive outweigh the
loss. If these things can be said of a society functioning above ground in a
normal and ordinary manner, what shall we say of the supposed absolute value of
a human life in the desperate situation in which these defendants and their
companion Whetmore found themselves?
This concludes the exposition of the first ground of my decision. My second
ground proceeds by rejecting hypothetically all the premises on which I have so
far proceeded. I concede for purposes of argument that I am wrong in saying
that the situation of these men removed them from the effect of our positive
law, and I assume that the Consolidated Statutes have the power to penetrate
five hundred feet of rock and to impose themselves upon these starving men
huddled in their underground prison.
Now it is, of course, perfectly clear that these men did an act that violates
the literal wording of the statute which declares that he who "shall willfully
take the life of another" is a murderer. But one of the most ancient bits of
legal wisdom is the saying that a man may break the letter of the law without
breaking the law itself. Every proposition of positive law, whether contained
in a statute or a judicial precedent, is to be interpreted reasonably, in the
light of its evident purpose. This is a truth so elementary that it is hardly
necessary to expatiate on it. Illustrations of its application are numberless
and are to be found in every branch of the law. In Commonwealth v. Staymore the
defendant was convicted under a statute making it a crime to leave one's car
parked in certain areas for a period longer than two hours. The defendant had
attempted to remove his car, but was prevented from doing so because the
streets were obstructed by a political demonstration in which he took no part
and which he had no reason to anticipate. His conviction was set aside by this
Court, although his case fell squarely within the wording of the statute.
Again, in Fehler v. Neegas there was before this Court for construction a
statute in which the word "not" had plainly been transposed from its intended
position in the final and most crucial section of the act. This transposition
was contained in all the successive drafts of the act, where it was apparently
overlooked by the draftsmen and sponsors of the legislation. No one was able to
prove how the error came about, yet it was apparent that, taking account of the
contents of the statute as a whole, an error had been made, since a literal
reading of the final clause rendered it inconsistent with everything that had
gone before and with the object of the enactment as stated in its preamble.
This Court refused to accept a literal interpretation of the statute, and in
effect rectified its language by reading the word "not" into the place where it
was evidently intended to go.
The statute before us for interpretation has never been applied literally.
Centuries ago it was established that a killing in self-defense is excused.
There is nothing in the wording of the statute that suggests this exception.
Various attempts have been made to reconcile the legal treatment of
self-defense with the words of the statute, but in my opinion these are all
merely ingenious sophistries. The truth is that the exception in favor of
self-defense cannot be reconciled with the words of the statute, but only with
The true reconciliation of the excuse of self-defense with the statute making
it a crime to kill another is to be found in the following line of reasoning.
One of the principal objects underlying any criminal legislation is that of
deterring men from crime. Now it is apparent that if it were declared to be the
law that a killing in self-defense is murder such a rule could not operate in a
deterrent manner. A man whose life is threatened will repel his aggressor,
whatever the law may say. Looking therefore to the broad purposes of criminal
legislation, we may safely declare that this statute was not intended to apply
to cases of self-defense.
When the rationale of the excuse of self-defense is thus explained, it becomes
apparent that precisely the same reasoning is applicable to the case at bar. If
in the future any group of men ever find themselves in the tragic predicament
of these defendants, we may be sure that their decision whether to live or die
will not be controlled by the contents of our criminal code. Accordingly, if we
read this statute intelligently it is apparent that it does not apply to this
case. The withdrawal of this situation from the effect of the statute is
justified by precisely the same considerations that were applied by our
predecessors in office centuries ago to the case of self-defense.
There are those who raise the cry of judicial usurpation whenever a court,
after analyzing the purpose of a statute, gives to its words a meaning that is
not at once apparent to the casual reader who has not studied the statute
closely or examined the objectives it seeks to attain. Let me say emphatically
that I accept without reservation the proposition that this Court is bound by
the statutes of our Commonwealth and that it exercises its powers in
subservience to the duly expressed will of the Chamber of Representatives. The
line of reasoning I have applied above raises no question of fidelity to
enacted law, though it may possibly raise a question of the distinction between
intelligent and unintelligent fidelity. No superior wants a servant who lacks
the capacity to read between the lines. The stupidest housemaid knows that when
she is told "to peel the soup and skim the potatoes" her mistress does not mean
what she says. She also knows that when her master tells her to "drop
everything and come running" he has overlooked the possibility that she is at
the moment in the act of rescuing the baby from the rain barrel. Surely we have
a right to expect the same modicum of intelligence from the judiciary. The
correction of obvious legislative errors or oversights is not to supplant the
legislative will, but to make that will effective.
I therefore conclude that on any aspect under which this case may be viewed
these defendants are innocent of the crime of murdering Roger Whetmore, and
that the conviction should be set aside.
TATTING, J. In the discharge of my duties as a justice of this Court, I am
usually able to dissociate the emotional and intellectual sides of my
reactions, and to decide the case before me entirely on the basis of the
latter. In passing on this tragic case I find that my usual resources fail me.
On the emotional side I find myself torn between sympathy for these men and a
feeling of abhorrence and disgust at the monstrous act they committed. I had
hoped that I would be able to put these contradictory emotions to one side as
irrelevant, and to decide the case on the basis of a convincing and logical
demonstration of the result demanded by our law. Unfortunately, this
deliverance has not been vouchsafed me.
As I analyze the opinion just rendered by my brother Foster, I find that it is
shot through with contradictions and fallacies. Let us begin with his first
proposition: these men were not subject to our law because they were not in a
"state of civil society" but in a "state of nature." I am not clear why this is
so, whether it is because of the thickness of the rock that imprisoned them, or
because they were hungry, or because they had set up a "new charter of
government" by which the usual rules of law were to be supplanted by a throw of
the dice. Other difficulties intrude themselves. If these men passed from the
jurisdiction of our law to that of "the law of nature," at what moment did this
occur? Was it when the entrance to the cave was blocked, or when the threat of
starvation reached a certain undefined degree of intensity, or when the
agreement for the throwing of the dice was made? These uncertainties in the
doctrine proposed by my brother are capable of producing real difficulties.
Suppose, for example, one of these men had had his twenty-first birthday while
he was imprisoned within the mountain. On what date would we have to consider
that he had attained his majority - when he reached the age of twenty-one, at
which time he was, by hypothesis, removed from the effects of our law, or only
when he was released from the cave and became again subject to what my brother
calls our "positive law"? These difficulties may seem fanciful, yet they only
serve to reveal the fanciful nature of the doctrine that is capable of giving
rise to them.
But it is not necessary to explore these niceties further to demonstrate the
absurdity of my brother's position. Mr. Justice Foster and I are the appointed
judges of a court of the Commonwealth of Newgarth, sworn and empowered to
administer the laws of that Commonwealth. By what authority do we resolve
ourselves into a Court of Nature? If these men were indeed under the law of
nature, whence comes our authority to expound and apply that law? Certainly we
are not in a state of nature.
Let us look at the contents of this code of nature that my brother proposes we
adopt as our own and apply to this case. What a topsy-turvy and odious code it
is! It is a code in which the law of contracts is more fundamental than the law
of murder. It is a code under which a man may make a valid agreement empowering
his fellows to eat his own body. Under the provisions of this code,
furthermore, such an agreement once made is irrevocable, and if one of the
parties attempts to withdraw, the others may take the law into their own hands
and enforce the contract by violence - for though my brother passes over in
convenient silence the effect of Whetmore's withdrawal, this is the necessary
implication of his argument.
The principles my brother expounds contain other implications that cannot be
tolerated. He argues that when the defendants set upon Whetmore and killed him
(we know not how, perhaps by pounding him with stones) they were only
exercising the rights conferred upon them by their bargain. Suppose, however,
that Whetmore had had concealed upon his person a revolver, and that when he
saw the defendants about to slaughter him he had shot them to death in order to
save his own life. My brother's reasoning applied to these facts would make
Whetmore out to be a murderer, since the excuse of self-defense would have to
be denied to him. If his assailants were acting rightfully in seeking to bring
about his death, then of course he could no more plead the excuse that he was
defending his own life than could a condemned prisoner who struck down the
executioner lawfully attempting to place the noose about his neck.
All of these considerations make it impossible for me to accept the first part
of my brother's argument. I can neither accept his notion that these men were
under a code of nature which this Court was bound to apply to them, nor can I
accept the odious and perverted rules that he would read into that code. I come
now to the second part of my brother's opinion, in which he seeks to show that
the defendants did not violate the provisions of N. C. S. A. (N. S.) § 12-A.
Here the way, instead of being clear, becomes for me misty and ambiguous,
though my brother seems unaware of the difficulties that inhere in his
The gist of my brother's argument may be stated in the following terms: No
statute, whatever its language, should be applied in a way that contradicts its
purpose. One of the purposes of any criminal statute is to deter. The
application of the statute making it a crime to kill another to the peculiar
facts of this case would contradict this purpose, for it is impossible to
believe that the contents of the criminal code could operate in a deterrent
manner on men faced with the alternative of life or death. The reasoning by
which this exception is read into the statute is, my brother observes, the same
as that which is applied in order to provide the excuse of self-defense.
On the face of things this demonstration seems very convincing indeed. My
brother's interpretation of the rationale of the excuse of self-defense is in
fact supported by a decision of this court, Commonwealth v. Parry, a precedent
I happened to encounter in my research on this case. Though Commonwealth v.
Parry seems generally to have been overlooked in the texts and subsequent
decisions, it supports unambiguously the interpretation my brother has put upon
the excuse of self-defense.
Now let me outline briefly, however, the perplexities that assail me when I
examine my brother's demonstration more closely. It is true that a statute
should be applied in the light of its purpose, and that one of the purposes of
criminal legislation is recognized to be deterrence. The difficulty is that
other purposes are also ascribed to the law of crimes. It has been said that
one of its objects is to provide an orderly outlet for the instinctive human
demand for retribution. Commonwealth v. Scape. It has also been said that its
object is the rehabilitation of the wrongdoer. Commonwealth v. Makeover. Other
theories have been propounded. Assuming that we must interpret a statute in the
light of its purpose, what are we to do when it has many purposes or when its
purposes are disputed?
A similar difficulty is presented by the fact that although there is authority
for my brother's interpretation of the excuse of self-defense, there is other
authority which assigns to that excuse a different rationale. Indeed, until I
happened on Commonwealth v. Parry I had never heard of the explanation given by
my brother. The taught doctrine of our law schools, memorized by generations of
law students, runs in the following terms: 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. I suspect that there is hardly a lawyer in this
Commonwealth who is not familiar with this line of reasoning, especially since
the point is a great favorite of the bar examiners.
Now the familiar explanation for the excuse of self-defense just expounded
obviously cannot be applied by analogy to the facts of this case. These men
acted not only "willfully" but with great deliberation and after hours of
discussing what they should do. Again we encounter a forked path, with one line
of reasoning leading us in one direction and another in a direction that is
exactly the opposite. This perplexity is in this case compounded, as it were,
for we have to set off one explanation, incorporated in a virtually unknown
precedent of this Court, against another explanation, which forms a part of the
taught legal tradition of our law schools, but which, so far as I know, has
never been adopted in any judicial decision.
I recognize the relevance of the precedents cited by my brother concerning the
displaced "not" and the defendant who parked overtime. But what are we to do
with one of the landmarks of our jurisprudence, which again my brother passes
over in silence? This is Commonwealth v. Valjean. Though the case is somewhat
obscurely reported, it appears that the defendant was indicted for the larceny
of a loaf of bread, and offered as a defense that he was in a condition
approaching starvation. The court refused to accept this defense. If hunger
cannot justify the theft of wholesome and natural food, how can it justify the
killing and eating of a man? Again, if we look at the thing in terms of
deterrence, is it likely that a man will starve to death to avoid a jail
sentence for the theft of a loaf of bread? My brother's demonstrations would
compel us to overrule Commonwealth v. Valjean, and many other precedents that
have been built on that case.
Again, I have difficulty in saying that no deterrent effect whatever could be
attributed to a decision that these men were guilty of murder. The stigma of
the word "murderer" is such that it is quite likely, I believe, that if these
men had known that their act was deemed by the law to be murder they would have
waited for a few days at least before carrying out their plan. During that time
some unexpected relief might have come. I realize that this observation only
reduces the distinction to a matter of degree, and does not destroy it
altogether. It is certainly true that the element of deterrence would be less
in this case than is normally involved in the application of the criminal law.
There is still a further difficulty in my brother Foster's proposal to read an
exception into the statute to favor this case, though again a difficulty not
even intimated in his opinion. What shall be the scope of this exception? Here
the men cast lots and the victim was himself originally a party to the
agreement. What would we have to decide if Whetmore had refused from the
beginning to participate in the plan? Would a majority be permitted to overrule
him? Or, suppose that no plan were adopted at all and the others simply
conspired to bring about Whetmore's death, justifying their act by saying that
he was in the weakest condition. Or again, that a plan of selection was
followed but one based on a different justification than the one adopted here,
as if the others were atheists and insisted that Whetmore should die because he
was the only one who believed in an afterlife. These illustrations could be
multiplied, but enough have been suggested to reveal what a quagmire of hidden
difficulties my brother's reasoning contains.
Of course I realize on reflection that I may be concerning myself with a
problem that will never arise, since it is unlikely that any group of men will
ever again be brought to commit the dread act that was involved here. Yet, on
still further reflection, even if we are certain that no similar case will
arise again, do not the illustrations I have given show the lack of any
coherent and rational principle in the rule my brother proposes? Should not the
soundness of a principle be tested by the conclusions it entails, without
reference to the accidents of later litigational history? Still, if this is so,
why is it that we of this Court so often discuss the question whether we are
likely to have later occasion to apply a principle urged for the solution of
the case before us? Is this a situation where a line of reasoning not
originally proper has become sanctioned by precedent, so that we are permitted
to apply it and may even be under an obligation to do so?
The more I examine this case and think about it, the more deeply I become
involved. My mind becomes entangled in the meshes of the very nets I throw out
for my own rescue. I find that almost every consideration that bears on the
decision of the case is counterbalanced by an opposing consideration leading in
the opposite direction. My brother Foster has not furnished to me, nor can I
discover for myself, any formula capable of resolving the equivocations that
beset me on all sides.
I have given this case the best thought of which I am capable. I have scarcely
slept since it was argued before us. When I feel myself inclined to accept the
view of my brother Foster, I am repelled by a feeling that his arguments are
intellectually unsound and approach mere rationalization. On the other hand,
when I incline toward upholding the conviction, I am struck by the absurdity of
directing that these men be put to death when their lives have been saved at
the cost of the lives of ten heroic workmen. It is to me a matter of regret
that the Prosecutor saw fit to ask for an indictment for murder. If we had a
provision in our statutes making it a crime to eat human flesh, that would have
been a more appropriate charge. If no other charge suited to the facts of this
case could be brought against the defendants, it would have been wiser, I
think, not to have indicted them at all. Unfortunately, however, the men have
been indicted and tried, and we have therefore been drawn into this unfortunate
Since I have been wholly unable to resolve the doubts that beset me about the
law of this case, I am with regret announcing a step that is, I believe,
unprecedented in the history of this tribunal. I declare my withdrawal from the
decision of this case.
KEEN, J. I should like to begin by setting to one side two questions which
are not before this Court.
The first of these is whether executive clemency should be extended to these
defendants if the conviction is affirmed. Under our system of government, that
is a question for the Chief Executive, not for us. I therefore disapprove of
that passage in the opinion of the Chief Justice in which he in effect gives
instructions to the Chief Executive as to what he should do in this case and
suggests that some impropriety will attach if these instructions are not
heeded. This is a confusion of governmental functions - a confusion of which
the judiciary should be the last to be guilty. I wish to state that if I were
the Chief Executive I would go farther in the direction of clemency than the
pleas addressed to him propose. I would pardon these men altogether, since I
believe that they have already suffered enough to pay for any offense they may
have committed. I want it to be understood that this remark is made in my
capacity as a private citizen who by the accident of his office happens to have
acquired an intimate acquaintance with the facts of this case. In the discharge
of my duties as judge, it is neither my function to address directions to the
Chief Executive, nor to take into account what he may or may not do, in
reaching my own decision, which must be controlled entirely by the law of this
The second question that I wish to put to one side is that of deciding whether
what these men did was "right" or "wrong," "wicked" or "good." That is also a
question that is irrelevant to the discharge of my office as a judge sworn to
apply, not my conceptions of morality, but the law of the land. In putting this
question to one side I think I can also safely dismiss without comment the
first and more poetic portion of my brother Foster's opinion. The element of
fantasy contained in the arguments developed there has been sufficiently
revealed in my brother Tatting's somewhat solemn attempt to take those
The sole question before us for decision is whether these defendants did,
within the meaning of N. C. S. A. (N. S.) § 12-A, willfully take the life of
Roger Whetmore. The exact language of the statute is as follows: "Whoever shall
willfully take the life of another shall be punished by death." Now I should
suppose that any candid observer, content to extract from these words their
natural meaning, would concede at once that these defendants did "willfully
take the life" of Roger Whetmore.
Whence arise all the difficulties of the case, then, and the necessity for so
many pages of discussion about what ought to be so obvious? The difficulties,
in whatever tortured form they may present themselves, all trace back to a
single source, and that is a failure to distinguish the legal from the moral
aspects of this case. To put it bluntly, my brothers do not like the fact that
the written law requires the conviction of these defendants. Neither do I, but
unlike my brothers I respect the obligations of an office that requires me to
put my personal predilections out of my mind when I come to interpret and apply
the law of this Commonwealth.
Now, of course, my brother Foster does not admit that he is actuated by a
personal dislike of the written law. Instead he develops a familiar line of
argument according to which the court may disregard the express language of a
statute when something not contained in the statute itself, called its
"purpose," can be employed to justify the result the court considers proper.
Because this is an old issue between myself and my colleague, I should like,
before discussing his particular application of the argument to the facts of
this case, to say something about the historical background of this issue and
its implications for law and government generally.
There was a time in this Commonwealth when judges did in fact legislate very
freely, and all of us know that during that period some of our statutes were
rather thoroughly made over by the judiciary. That was a time when the accepted
principles of political science did not designate with any certainty the rank
and function of the various arms of the state. We all know the tragic issue of
that uncertainty in the brief civil war that arose out of the conflict between
the judiciary, on the one hand, and the executive and the legislature, on the
other. There is no need to recount here the factors that contributed to that
unseemly struggle for power, though they included the unrepresentative
character of the Chamber, resulting from a division of the country into
election districts that no longer accorded with the actual distribution of the
population, and the forceful personality and wide popular following of the then
Chief Justice. It is enough to observe that those days are behind us, and that
in place of the uncertainty that then reigned we now have a clear-cut
principle, which is the supremacy of the legislative branch of our government.
From that principle flows the obligation of the judiciary to enforce faithfully
the written law, and to interpret that law in accordance with its plain meaning
without reference to our personal desires or our individual conceptions of
justice. I am not concerned with the question whether the principle that
forbids the judicial revision of statutes is right or wrong, desirable or
undesirable; I observe merely that this principle has become a tacit premise
underlying the whole of the legal and governmental order I am sworn to
Yet though the principle of the supremacy of the legislature has been accepted
in theory for centuries, such is the tenacity of professional tradition and the
force of fixed habits of thought that many of the judiciary have still not
accommodated themselves to the restricted role which the new order imposes on
them. My brother Foster is one of that group; his way of dealing with statutes
is exactly that of a judge living in the 3900's.
We are all familiar with the process by which the judicial reform of disfavored
legislative enactments is accomplished. Anyone who has followed the written
opinions of Mr. Justice Foster will have had an opportunity to see it at work
in every branch of the law. I am personally so familiar with the process that
in the event of my brother's incapacity I am sure I could write a satisfactory
opinion for him without any prompting whatever, beyond being informed whether
he liked the effect of the terms of the statute as applied to the case before
The process of judicial reform requires three steps. The first of these is to
divine some single "purpose" which the statute serves. This is done although
not one statute in a hundred has any such single purpose, and although the
objectives of nearly every statute are differently interpreted by the different
classes of its sponsors. The second step is to discover that a mythical being
called "the legislator," in the pursuit of this imagined "purpose," overlooked
something or left some gap or imperfection in his work. Then comes the final
and most refreshing part of the task, which is, of course, to fill in the blank
thus created. Quod erat faciendum.
My brother Foster's penchant for finding holes in statutes reminds one of the
story told by an ancient author about the man who ate a pair of shoes. Asked
how he liked them, he replied that the part he liked best was the holes. That
is the way my brother feels about statutes; the more holes they have in them
the better he likes them. In short, he doesn't like statutes.
One could not wish for a better case to illustrate the specious nature of this
gap-filling process than the one before us. My brother thinks he knows exactly
what was sought when men made murder a crime, and that was something he calls
"deterrence." My brother Tatting has already shown how much is passed over in
that interpretation. But I think the trouble goes deeper. I doubt very much
whether our statute making murder a crime really has a "purpose" in any
ordinary sense of the term. Primarily, such a statute reflects a deeply-felt
human conviction that murder is wrong and that something should be done to the
man who commits it. If we were forced to be more articulate about the matter,
we would probably take refuge in the more sophisticated theories of the
criminologists, which, of course, were certainly not in the minds of those who
drafted our statute. We might also observe that men will do their own work more
effectively and live happier lives if they are protected against the threat of
violent assault. Bearing in mind that the victims of murders are often
unpleasant people, we might add some suggestion that the matter of disposing of
undesirables is not a function suited to private enterprise, but should be a
state monopoly. All of which reminds me of the attorney who once argued before
us that a statute licensing physicians was a good thing because it would lead
to lower life insurance rates by lifting the level of general health. There is
such a thing as overexplaining the obvious.
If we do not know the purpose of § 12-A, how can we possibly say there is a
"gap" in it? How can we know what its draftsmen thought about the question of
killing men in order to eat them? My brother Tatting has revealed an
understandable, though perhaps slightly exaggerated revulsion to cannibalism.
How do we know that his remote ancestors did not feel the same revulsion to an
even higher degree? Anthropologists say that the dread felt for a forbidden act
may be increased by the fact that the conditions of a tribe's life create
special temptations toward it, as incest is most severely condemned among those
whose village relations make it most likely to occur. Certainly the period
following the Great Spiral was one that had implicit in it temptations to
anthropophagy. Perhaps it was for that very reason that our ancestors expressed
their prohibition in so broad and unqualified a form. All of this is
conjecture, of course, but it remains abundantly clear that neither I nor my
brother Foster knows what the "purpose" of § 12-A is.
Considerations similar to those I have just outlined are also applicable to the
exception in favor of self-defense, which plays so large a role in the
reasoning of my brothers Foster and Tatting. It is of course true that in
Commonwealth v. Parry an obiter dictum justified this exception on the
assumption that the purpose of criminal legislation is to deter. It may well
also be true that generations of law students have been taught that the true
explanation of the exception lies in the fact that a man who acts in
self-defense does not act "willfully," and that the same students have passed
their bar examinations by repeating what their professors told them. These last
observations I could dismiss, of course, as irrelevant for the simple reason
that professors and bar examiners have not as yet any commission to make our
laws for us. But again the real trouble lies deeper. As in dealing with the
statute, so in dealing with the exception, the question is not the conjectural
purpose of the rule, but its scope. Now the scope of the exception in favor of
self-defense as it has been applied by this Court is plain: it applies to cases
of resisting an aggressive threat to the party's own life. It is therefore too
clear for argument that this case does not fall within the scope of the
exception, since it is plain that Whetmore made no threat against the lives of
The essential shabbiness of my brother Foster's attempt to cloak his remaking
of the written law with an air of legitimacy comes tragically to the surface in
my brother Tatting's opinion. In that opinion Justice Tatting struggles
manfully to combine his colleague's loose moralisms with his own sense of
fidelity to the written law. The issue of this struggle could only be that
which occurred, a complete default in the discharge of the judicial function.
You simply cannot apply a statute as it is written and remake it to meet your
own wishes at the same time.
Now I know that the line of reasoning I have developed in this opinion will not
be acceptable to those who look only to the immediate effects of a decision and
ignore the long-run implications of an assumption by the judiciary of a power
of dispensation. A hard decision is never a popular decision. Judges have been
celebrated in literature for their sly prowess in devising some quibble by
which a litigant could be deprived of his rights where the public thought it
was wrong for him to assert those rights. But I believe that judicial
dispensation does more harm in the long run than hard decisions. Hard cases may
even have a certain moral value by bringing home to the people their own
responsibilities toward the law that is ultimately their creation, and by
reminding them that there is no principle of personal grace that can relieve
the mistakes of their representatives.
Indeed, I will go farther and say that not only are the principles I have been
expounding those which are soundest for our present conditions, but that we
would have inherited a better legal system from our forefathers if those
principles had been observed from the beginning. For example, with respect to
the excuse of self-defense, if our courts had stood steadfast on the language
of the statute the result would undoubtedly have been a legislative revision of
it. Such a revision would have drawn on the assistance of natural philosophers
and psychologists, and the resulting regulation of the matter would have had an
understandable and rational basis, instead of the hodgepodge of verbalisms and
metaphysical distinctions that have emerged from the judicial and professorial
These concluding remarks are, of course, beyond any duties that I have to
discharge with relation to this case, but I include them here because I feel
deeply that my colleagues are insufficiently aware of the dangers implicit in
the conceptions of the judicial office advocated by my brother Foster.
I conclude that the conviction should be affirmed.
HANDY, J. I have listened with amazement to the tortured ratiocinations to
which this simple case has given rise. I never cease to wonder at my
colleagues' ability to throw an obscuring curtain of legalisms about every
issue presented to them for decision. We have heard this afternoon learned
disquisitions on the distinction between positive law and the law of nature,
the language of the statute and the purpose of the statute, judicial functions
and executive functions, judicial legislation and legislative legislation. My
only disappointment was that someone did not raise the question of the legal
nature of the bargain struck in the cave - whether it was unilateral or
bilateral, and whether Whetmore could not be considered as having revoked an
offer prior to action taken thereunder.
What have all these things to do with the case? The problem before us is what
we, as officers of the government, ought to do with these defendants. That is a
question of practical wisdom, to be exercised in a context, not of abstract
theory, but of human realities. When the case is approached in this light, it
becomes, I think, one of the easiest to decide that has ever been argued before
Before stating my own conclusions about the merits of the case, I should like
to discuss briefly some of the more fundamental issues involved - issues on
which my colleagues and I have been divided ever since I have been on the
I have never been able to make my brothers see that government is a human
affair, and that men are ruled, not by words on paper or by abstract theories,
but by other men. They are ruled well when their rulers understand the feelings
and conceptions of the masses. They are ruled badly when that understanding is
Of all branches of the government, the judiciary is the most likely to lose its
contact with the common man. The reasons for this are, of course, fairly
obvious. Where the masses react to a situation in terms of a few salient
features, we pick into little pieces every situation presented to us. Lawyers
are hired by both sides to analyze and dissect. Judges and attorneys vie with
one another to see who can discover the greatest number of difficulties and
distinctions in a single set of facts. Each side tries to find cases, real or
imagined, that will embarrass the demonstrations of the other side. To escape
this embarrassment, still further distinctions are invented and imported into
the situation. When a set of facts has been subjected to this kind of treatment
for a sufficient time, all the life and juice have gone out of it and we have
left a handful of dust.
Now I realize that wherever you have rules and abstract principles lawyers are
going to be able to make distinctions. To some extent the sort of thing I have
been describing is a necessary evil attaching to any formal regulation of human
affairs. But I think that the area which really stands in need of such
regulation is greatly overestimated. There are, of course, a few fundamental
rules of the game that must be accepted if the game is to go on at all. I would
include among these the rules relating to the conduct of elections, the
appointment of public officials, and the term during which an office is held.
Here some restraint on discretion and dispensation, some adherence to form,
some scruple for what does and what does not fall within the rule, is, I
concede, essential. Perhaps the area of basic principle should be expanded to
include certain other rules, such as those designed to preserve the free
But outside of these fields I believe that all government officials, including
judges, will do their jobs best if they treat forms and abstract concepts as
instruments. We should take as our model, I think, the good administrator, who
accommodates procedures and principles to the case at hand, selecting from
among the available forms those most suited to reach the proper result.
The most obvious advantage of this method of government is that it permits us
to go about our daily tasks with efficiency and common sense. My adherence to
this philosophy has, however, deeper roots. I believe that it is only with the
insight this philosophy gives that we can preserve the flexibility essential if
we are to keep our actions in reasonable accord with the sentiments of those
subject to our rule. More governments have been wrecked, and more human misery
caused, by the lack of this accord between ruler and ruled than by any other
factor that can be discerned in history. Once drive a sufficient wedge between
the mass of people and those who direct their legal, political, and economic
life, and our society is ruined. Then neither Foster's law of nature nor Keen's
fidelity to written law will avail us anything.
Now when these conceptions are applied to the case before us, its decision
becomes, as I have said, perfectly easy. In order to demonstrate this I shall
have to introduce certain realities that my brothers in their coy decorum have
seen fit to pass over in silence, although they are just as acutely aware of
them as I am.
The first of these is that this case has aroused an enormous public interest,
both here and abroad. Almost every newspaper and magazine has carried articles
about it; columnists have shared with their readers confidential information as
to the next governmental move; hundreds of letters-to-the-editor have been
printed. One of the great newspaper chains made a poll of public opinion on the
question, "What do you think the Supreme Court should do with the Speluncean
explorers?" About ninety per cent expressed a belief that the defendants should
be pardoned or let off with a kind of token punishment. It is perfectly clear,
then, how the public feels about the case. We could have known this without the
poll, of course, on the basis of common sense, or even by observing that on
this Court there are apparently four-and-a-half men, or ninety per cent, who
share the common opinion.
This makes it obvious, not only what we should do, but what we must do if we
are to preserve between ourselves and public opinion a reasonable and decent
accord. Declaring these men innocent need not involve us in any undignified
quibble or trick. No principle of statutory construction is required that is
not consistent with the past practices of this Court. Certainly no layman would
think that in letting these men off we had stretched the statute any more than
our ancestors did when they created the excuse of self-defense. If a more
detailed demonstration of the method of reconciling our decision with the
statute is required, I should be content to rest on the arguments developed in
the second and less visionary part of my brother Foster's opinion.
Now I know that my brothers will be horrified by my suggestion that this Court
should take account of public opinion. They will tell you that public opinion
is emotional and capricious, that it is based on half-truths and listens to
witnesses who are not subject to cross-examination. They will tell you that the
law surrounds the trial of a case like this with elaborate safeguards, designed
to insure that the truth will be known and that every rational consideration
bearing on the issues of the case has been taken into account. They will warn
you that all of these safeguards go for naught if a mass opinion formed outside
this framework is allowed to have any influence on our decision.
But let us look candidly at some of the realities of the administration of our
criminal law. When a man is accused of crime, there are, speaking generally,
four ways in which he may escape punishment. One of these is a determination by
a judge that under the applicable law he has committed no crime. This is, of
course, a determination that takes place in a rather formal and abstract
atmosphere. But look at the other three ways in which he may escape punishment.
These are: (1) a decision by the Prosecutor not to ask for an indictment; (2)
an acquittal by the jury; (3) a pardon or commutation of sentence by the
executive. Can anyone pretend that these decisions are held within a rigid and
formal framework of rules that prevents factual error, excludes emotional and
personal factors, and guarantees that all the forms of the law will be
In the case of the jury we do, to be sure, attempt to cabin their deliberations
within the area of the legally relevant, but there is no need to deceive
ourselves into believing that this attempt is really successful. In the normal
course of events the case now before us would have gone on all of its issues
directly to the jury. Had this occurred we can be confident that there would
have been an acquittal or at least a division that would have prevented a
conviction. If the jury had been instructed that the men's hunger and their
agreement were no defense to the charge of murder, their verdict would in all
likelihood have ignored this instruction and would have involved a good deal
more twisting of the letter of the law than any that is likely to tempt us. Of
course the only reason that didn't occur in this case was the fortuitous
circumstance that the foreman of the jury happened to be a lawyer. His learning
enabled him to devise a form of words that would allow the jury to dodge its
My brother Tatting expresses annoyance that the Prosecutor did not, in effect,
decide the case for him by not asking for an indictment. Strict as he is
himself in complying with the demands of legal theory, he is quite content to
have the fate of these men decided out of court by the Prosecutor on the basis
of common sense. The Chief Justice, on the other hand, wants the application of
common sense postponed to the very end, though like Tatting, he wants no
personal part in it.
This brings me to the concluding portion of my remarks, which has to do with
executive clemency. Before discussing that topic directly, I want to make a
related observation about the poll of public opinion. As I have said, ninety
per cent of the people wanted the Supreme Court to let the men off entirely or
with a more or less nominal punishment. The ten per cent constituted a very
oddly assorted group, with the most curious and divergent opinions. One of our
university experts has made a study of this group and has found that its
members fall into certain patterns. A substantial portion of them are
subscribers to "crank" newspapers of limited circulation that gave their
readers a distorted version of the facts of the case. Some thought that
"Speluncean" means "cannibal" and that anthropophagy is a tenet of the Society.
But the point I want to make, however, is this: although almost every
conceivable variety and shade of opinion was represented in this group, there
was, so far as I know, not one of them, nor a single member of the majority of
ninety per cent, who said, "I think it would be a fine thing to have the courts
sentence these men to be hanged, and then to have another branch of the
government come along and pardon them." Yet this is a solution that has more or
less dominated our discussions and which our Chief Justice proposes as a way by
which we can avoid doing an injustice and at the same time preserve respect for
law. He can be assured that if he is preserving anybody's morale, it is his
own, and not the public's, which knows nothing of his distinctions. I mention
this matter because I wish to emphasize once more the danger that we may get
lost in the patterns of our own thought and forget that these patterns often
cast not the slightest shadow on the outside world.
I come now to the most crucial fact in this case, a fact known to all of us on
this Court, though one that my brothers have seen fit to keep under the cover
of their judicial robes. This is the frightening likelihood that if the issue
is left to him, the Chief Executive will refuse to pardon these men or commute
their sentence. As we all know, our Chief Executive is a man now well advanced
in years, of very stiff notions. Public clamor usually operates on him with the
reverse of the effect intended. As I have told my brothers, it happens that my
wife's niece is an intimate friend of his secretary. I have learned in this
indirect, but, I think, wholly reliable way, that he is firmly determined not
to commute the sentence if these men are found to have violated the law.
No one regrets more than I the necessity for relying in so important a matter
on information that could be characterized as gossip. If I had my way this
would not happen, for I would adopt the sensible course of sitting down with
the Executive, going over the case with him, finding out what his views are,
and perhaps working out with him a common program for handling the situation.
But of course my brothers would never hear of such a thing.
Their scruple about acquiring accurate information directly does not prevent
them from being very perturbed about what they have learned indirectly. Their
acquaintance with the facts I have just related explains why the Chief Justice,
ordinarily a model of decorum, saw fit in his opinion to flap his judicial
robes in the face of the Executive and threaten him with excommunication if he
failed to commute the sentence. It explains, I suspect, my brother Foster's
feat of levitation by which a whole library of law books was lifted from the
shoulders of these defendants. It explains also why even my legalistic brother
Keen emulated Pooh-Bah in the ancient comedy by stepping to the other side of
the stage to address a few remarks to the Executive "in my capacity as a
private citizen." (I may remark, incidentally, that the advice of Private
Citizen Keen will appear in the reports of this court printed at taxpayers'
I must confess that as I grow older I become more and more perplexed at men's
refusal to apply their common sense to problems of law and government, and this
truly tragic case has deepened my sense of discouragement and dismay. I only
wish that I could convince my brothers of the wisdom of the principles I have
applied to the judicial office since I first assumed it. As a matter of fact,
by a kind of sad rounding of the circle, I encountered issues like those
involved here in the very first case I tried as Judge of the Court of General
Instances in Fanleigh County.
A religious sect had unfrocked a minister who, they said, had gone over to the
views and practices of a rival sect. The minister circulated a handbill making
charges against the authorities who had expelled him. Certain lay members of
the church announced a public meeting at which they proposed to explain the
position of the church. The minister attended this meeting. Some said he
slipped in unobserved in a disguise; his own testimony was that he had walked
in openly as a member of the public. At any rate, when the speeches began he
interrupted with certain questions about the affairs of the church and made
some statements in defense of his own views. He was set upon by members of the
audience and given a pretty thorough pommeling, receiving among other injuries
a broken jaw. He brought a suit for damages against the association that
sponsored the meeting and against ten named individuals who he alleged were his
When we came to the trial, the case at first seemed very complicated to me. The
attorneys raised a host of legal issues. There were nice questions on the
admissibility of evidence, and, in connection with the suit against the
association, some difficult problems turning on the question whether the
minister was a trespasser or a licensee. As a novice on the bench I was eager
to apply my law school learning and I began studying these question closely,
reading all the authorities and preparing well-documented rulings. As I studied
the case I became more and more involved in its legal intricacies and I began
to get into a state approaching that of my brother Tatting in this case.
Suddenly, however, it dawned on me that all these perplexing issues really had
nothing to do with the case, and I began examining it in the light of common
sense. The case at once gained a new perspective, and I saw that the only thing
for me to do was to direct a verdict for the defendants for lack of evidence.
I was led to this conclusion by the following considerations. The melee in
which the plaintiff was injured had been a very confused affair, with some
people trying to get to the center of the disturbance, while others were trying
to get away from it; some striking at the plaintiff, while others were
apparently trying to protect him. It would have taken weeks to find out the
truth of the matter. I decided that nobody's broken jaw was worth that much to
the Commonwealth. (The minister's injuries, incidentally, had meanwhile healed
without disfigurement and without any impairment of normal faculties.)
Furthermore, I felt very strongly that the plaintiff had to a large extent
brought the thing on himself. He knew how inflamed passions were about the
affair, and could easily have found another forum for the expression of his
views. My decision was widely approved by the press and public opinion, neither
of which could tolerate the views and practices that the expelled minister was
attempting to defend.
Now, thirty years later, thanks to an ambitious Prosecutor and a legalistic
jury foreman, I am faced with a case that raises issues which are at bottom
much like those involved in that case. The world does not seem to change much,
except that this time it is not a question of a judgment for five or six
hundred frelars, but of the life or death of four men who have already suffered
more torment and humiliation than most of us would endure in a thousand years.
I conclude that the defendants are innocent of the crime charged, and that the
conviction and sentence should be set aside.
TATTING, J. I have been asked by the Chief Justice whether, after listening
to the two opinions just rendered, I desire to reexamine the position
previously taken by me. I wish to state that after hearing these opinions I am
greatly strengthened in my conviction that I ought not to participate in the
decision of this case.
The Supreme Court being evenly divided, the conviction and sentence of the
Court of General Instances is affirmed. It is ordered that the execution of the
sentence shall occur at 6 a.m., Friday, April 2, 4300, at which time the Public
Executioner is directed to proceed with all convenient dispatch to hang each of
the defendants by the neck until he is dead.
Now that the court has spoken its judgment, the reader puzzled by the choice of
date may wish to be reminded that the centuries which separate us from the year
4300 are roughly equal to those that have passed since the Age of Pericles.
There is probably no need to observe that the Speluncean Case itself is
intended neither as a work of satire nor as a prediction in any ordinary sense
of the term. As for the judges who make up Chief Justice Truepenny's court,
they are, of course, as mythical as the facts and precedents with which they
deal. The reader who refuses to accept this view, and who seeks to trace out
contemporary resemblances where none is intended or contemplated, should be
warned that he is engaged in a frolic of his own, which may possibly lead him
to miss whatever modest truths are contained in the opinions delivered by the
Supreme Court of Newgarth. The case was constructed for the sole purpose of
bringing into a common focus certain divergent philosophies of law and
government. These philosophies presented men with live questions of choice in
the days of Plato and Aristotle. Perhaps they will continue to do so when our
era has had its say about them. If there is any element of prediction in the
case, it does not go beyond a suggestion that the questions involved are among
the permanent problems of the human race.
The Case of the Speluncean Explorers:
Nine New Opinions
Peter Suber, Philosophy Department, Earlham College
About the book
Ordering the book
Preface and Introduction to the book
Timeline of events in the cave
Other new opinions on the case
Assignment ideas for teachers
Why read this book? One timely reason is to get beyond sloganeering about
"judicial activism" and "activist judges". The book is a succinct and
even-handed way to understand what the debate is about. It doesn't tell you
what to think, but illustrates the contending positions and lets you think for
yourself. It will show you how judges with different moral and political
beliefs interpret written law, how they use precedents, how they conceive the
proper role of judges, how they conceive the relationship between law and
morality, and how they defend their judicial practices against criticism. It
anchors all of this in a Supreme Court hearing of a gripping, concrete case on
which real people disagree. (Challenge: Take any view of how judges should
interpret law, especially any view that makes it sound easy, and try it out on
this case. How well can it respect the facts and law? How well can it answer
the objections from judges who take other views? How well does it deliver
justice?) The book has no jargon and assumes no prior knowledge of law or legal
philosophy. Another reason to read it: It's just fun.
About the book
The Case of the Speluncean Explorers: Nine New Opinions. Routledge, 1998.
The book uses a famous fictitious legal case to illustrate nine contemporary
philosophies of law. It presupposes no knowledge of law or philosophy of law,
and should be a painless, even enjoyable introduction to legal philosophy.
The famous fictitious legal case was created by Lon Fuller in his article, "The
Case of the Speluncean Explorers," Harvard Law Review, vol. 62, no. 4 (1949)
pp. 616-645. The case tells the story of a group of spelunkers (cave-explorers)
in the Commonwealth of Newgarth, trapped in a cave by a landslide. As they
approach the point of starvation, they make radio contact with the rescue team.
Engineers on the team estimate that the rescue will take another 10 days. The
men describe their physical condition to physicians at the rescue camp and ask
whether they can survive another 10 days without food. The physicians think
this very unlikely. Then the spelunkers ask whether they could survive another
10 days if they killed and ate a member of their party. The physicians
reluctantly answer that they would. Finally, the men ask whether they ought to
hold a lottery to determine whom to kill and eat. No one at the rescue camp is
willing to answer this question. The men turn off their radio, and some time
later hold a lottery, kill the loser, and eat him. When they are rescued, they
are prosecuted for murder, which in Newgarth carries a mandatory death penalty.
Are they guilty? Should they be executed?
Fuller wrote five Supreme Court opinions on the case which explore the facts
from the perspectives of profoundly different legal principles. The result is a
focused and concrete illustration of the range of Anglo-American legal
philosophy at mid-century. My nine new opinions attempt to bring this picture
up to date with our own more diverse and turbulent jurisprudence half a century
My contract with Routledge prevents me from putting the text of the book on the
web. However, I have put the Preface and Introduction online, and over time I
may put more auxiliary content on this web site than I have now.
Ordering the book
You can buy the book from Amazon.com in paperback or hardback.
Errata in the first edition
Page v, line 2, for "May" read "Mary"
Page 40, line 29, for "with with" read "with"
Page 48, line 19, for "New York" read "New New York"
Page 51, line 11, for "and are exercising" read "exercising"
Page 60, line 19, for "signd the second contract" read "signed the social
Page 60, line 34, for "in any." read "in any case."
Page 66, line 7, for "would know" read "could know"
Page 90, line 6, for "when it is disguised" read "when disguised"
Page 96, bottom line, for "prevents them thinking" read "prevents them from
Page 97, line 3, for "Commonwealth and Valjean" read "Commonwealth v. Valjean"
All of these have been corrected in the August 2002 reprint. If you think you
have found other errata, I would be grateful if you'd drop me a line. Please
let me know which edition you're using.
Timeline of the events in the cave
The timeline is more subtle than it might appear on first reading Justice
Truepenny's statement of the facts. I've sorted it out here for those who are
interested. But for those who aren't, let me assure you that you may skip this
section with impunity. These subtleties are not material to the holding on
virtually any theory of the facts or law.
Day 0. The men enter the cave.
Day x. The landslide occurs.
We are never told how many days after Day 0 this occurs. However, we can deduce
that it is at most 3. See the notes below.
Day x + 20. Radio contact is established (p. 7, line 31).
Day 23. The men hold the lottery and kill Whetmore (p. 8, line 27). Note that
this is Day 23, not Day x + 23.
Whetmore would have waited another week to hold the lottery (p. 8, line 40).
To know just how long the men had gone without food at the time of the lottery
and killing, we'd have to know both (1) the value of x and (2) how long it took
them after Day 0 to exhaust the provisions they carried in with them.
Unfortunately we don't know either of these key facts, but see the notes below.
Day x + 30. Earliest estimated rescue date (p. 8, line 5).
On Day x + 20 (p. 7, line 31), the engineers predicted at least a 10 day rescue
(p. 8, line 5).
The doctors predicted that the men could live at least to this day if they ate
one of their companions (p. 8, line 17), and would almost certainly not live to
this day without some additional food (p. 8, line 11).
Day 32. The men are rescued (p. 7, line 25). Note that this is Day 32, not Day
x + 32.
Notes on the timeline.
Radio contact is established on Day x + 20, and Whetmore is killed on Day 23
(not Day x + 23). If x were greater than 3, then the radio contact would have
occurred after the killing, which we know is false. Hence x must be less than
or equal to 3.
If x = 0, the minimum, then the rescue was two days slower than the engineers
predicted (12 days rather than 10). If x = 3, the maximum, then the rescue was
one day faster than predicted (9 days rather than 10). Either way, the men were
rescued 9 days after the killing.
Another way to put this: Assume that the doctors were right that from the day
of radio contact the men could not have lived 10 more days without food, and
assume that the men had not killed a companion to eat. If x = 0, then the men
would have starved to death before being rescued, but if x = 3, then they would
have been rescued before starving to death.
Is there any textual evidence to help us decide whether x is 0, 1, 2, or 3? I
don't see anything explicit. But here's a possibility. On the day of the
killing, Day 23, Whetmore wanted to wait another week before killing anyone.
Why a week exactly, especially if they were already close to death by
starvation? If x = 0, then the predicted date of rescue (Day x + 30) would be
exactly one week from the date on which Whetmore wanted to wait a week. By
contrast, if x = 3, then waiting a week would still put them three days short
of the predicted date of rescue. Hence, if Whetmore picked a week thinking of
the predicted rescue, then that suggests that x = 0.
Other new opinions on the case
I am not the first to write new opinions on the Case of the Speluncean
Explorers. Here are the other published opinions that I know of, in
chronological order. If you know of any others, please drop me a line.
Anthony D'Amato wrote three new opinions for the Stanford Law Review, vol. 32
(1980) pp. 467-85.
Naomi Cahn, John Calmore, Mary Coombs, Dwight Greene, Geoffrey Miller, Jeremy
Paul, and Laura Stein wrote one opinion each for the George Washington Law
Review, vol. 61 (1993) pp. 1754-1811.
Paul Butler, Alan Dershowitz, Frank Easterbrook, Alex Kozinski, Cass Sunstein,
and Robin West wrote one opinion each for the Harvard Law Review, vol. 112
(1999) pp. 1834-1923. David Shapiro wrote an introduction to the collection of
My book came out in November of 1998. I wasn't able to see any of these six
opinions and, due to the lag time between journal submissions and publication,
I assume that these scholars were not able to see my book.
Assignment ideas for teachers
The classic, basic assignment is to decide the case. Come to a verdict and
support your verdict with argument. Are the spelunkers guilty of murder or not?
There are only two possibilities, guilty and not guilty, so don't get too
creative. Or rather, save your creativity for your argument. Inventing a third
verdict does not take the constraints of law seriously and would make the case
both easier and less interesting.
Variations on the law
Here are some variations on the basic assignment, in roughly increasing order
of difficulty and sophistication.
Decide the case morally, not legally. Ignore the law. Did these men do anything
wrong? Or decide the case under the law as it ought to be, not under the law as
Variation. Once you decide the morality of the case, how can we make the law
reflect this morality better? How should we change the law to make clear that
this sort of act is (or is not) murder?
Decide the case under the law of the Commonwealth of Newgarth. This includes at
least the murder statute and the precedents. Does "the law" include anything
else? That's for you to decide.
Assume that you are a Newgarth Supreme Court Justice who has taken an oath to
uphold and apply the laws of the Commonwealth of Newgarth.
If you feel a tension between your personal morality and the laws of Newgarth,
then don't put the law aside in order to give effect to your moral convictions
unless you think a good judge would do so. If you think your oath of office
permits this indulgence of your personal morality, then show that it does.
Focus on supporting your verdict with strong arguments, not on undermining the
arguments for the opposite verdict (although that comes in another variation
Decide the case under the law, support your verdict with arguments, and show
the weaknesses in the arguments for the other verdict.
There are many arguments on both sides, so there will be much work to do no
matter which verdict you chose. However, if time is tight, simplify as follows.
If you vote guilty, then how do you answer the necessity defense? If you vote
not guilty, how do you interpret the statute?
If you acquit, can you rebut the arguments of each judge who voted to convict?
If you convict, can you rebut the arguments of each judge who voted to acquit?
Decide the case under the law of the state where you live.
At first consult the murder statute where you live and forget the cases
interpreting it. The statute probably contains degrees of murder and homicide,
standard defenses (excuses and justifications), and some sentencing discretion
for the judge. All these departures from the Newgarth situation give you room
to explore issues you didn't have to explore when you used Newgarth law.
If you have time and ambition, also use the case law of your jurisdiction.
This version of the assignment is difficult insofar as it requires legal
research outside Fuller's essay. But it is easier than some of the variations
above because it doesn't force you to pick from a narrow range of options and
justify your difficult selection.
If you have read other cases on necessity, self-defense, or murder, assume that
they are binding precedents in Newgarth. Take the force of those that are most
applicable, distinguish those that are least applicable.
On September 27, 2001, President George W. Bush authorized the U.S. Air Force
to shoot down commercial airliners containing passengers if the airliners (1)
appear to threaten cities, (2) refuse to change their course, and (3) there is
no time to contact the president for specific orders. Two weeks earlier, of
course, terrorists hijacked four commercial airliners containing passengers and
deliberately crashed three of them into buildings in New York and Washington,
killing more than 3,000 people. See this Washington Post story for more detail
on President Bush's decision to authorize what Justice Tally might call the
preventive killing of innocents.
Imagine that the President of Newgarth had made a similar decision and imagine
that it had been challenged in court.
How would you decide the President's case in light of your decision in the case
of the speluncean explorers?
Assume that the President of Newgarth won her case and the ruling was available
as a precedent. What would it imply for the case of the speluncean explorers?
Variations on the facts
Decide the case under the real facts, as described by Chief Justice Truepenny,
or decide it under one of the what-if scenarios below.
What if the men had not used a lottery but killed Whetmore because he was the
only one with no family, or the only one who believed in an afterlife? (This
variation was suggested by Justice Foster.)
What if Whetmore had not revoked his consent, but was the willing victim based
on the result of the lottery?
What if Whetmore had not said that the dice throw made on his behalf was a fair
What if Whetmore had tried to defend himself but the survivors had succeeded in
killing him anyway?
What if Whetmore had defended himself by killing (say) Smith? As a result, the
party ate Smith instead of Whetmore. (For this to work, we must suppose that
Whetmore, at least, was prosecuted for murdering Smith.)
What if a Newgarth judge had been on the scene at the rescue camp and had told
the spelunkers by radio that the act they were contemplating would be
considered murder under Newgarth law?
What if the judge on the scene had said that the killing would not be
What if a priest instead of a judge had given an opinion by radio? (You decide
what the priest would have said.)
What if the men had brought much more food into the cave with them, and
survived much longer on it, but still had the same radio conversation with the
outside world about their prospects for survival?
What if Whetmore was clearly the one who would have died first of natural
causes? What if he clearly was not?
What if the men were rescued earlier than the engineers predicted? What if
later? (Fuller doesn't give us the facts to decide this question; see the
What if no one had died in the rescue attempt?
What if the rescue party were financed entirely by the Speluncean Club, with no
funds from the Commonwealth of Newgarth?
What if Newgarth did not trace the authority of its laws back to a social
What if Newgarth had no history of civil war inspired by judicial usurpation of
the legislative functions?
What if the exception for self-defense were not an ancient judicial invention,
but an express part of the murder statute as written by the legislature?
What if the men were not trapped in a cave, but in a collapsed building after
an earthquake? What if they were not spelunkers pursuing a risky sport, but
workers at work?
What if at the time of the killing the batteries in the spelunkers' radio were
actually dead? (See Justice Bond's opinion for the possible relevance of this
Variations in format
Decide the case or explore the issues in one of the following ways.
Write a judicial opinion. Imagine that you have taken an oath to uphold the
laws of Newgarth. Don't appeal to your personal morality unless the law and
your oath allow you to do so. In my view, this is the best first assignment on
the case, especially if the various judges (students in the course) can compare
their views and discuss their differences before and after they write their
Variation. Write such a judicial opinion at the beginning of the semester.
Then write another near the end of the semester. After the second one is turned
in, discuss how the material in the course made you a better judge better able
to deal with the difficulties of this hard case.
As you read new legal philosophers during the course, pause to ask (among other
discussion questions) how he/she would decide the case. What considerations
would he/she add to our deliberations that we haven't seen before?
Hold a discussion in which the group takes on the role of a committee of
district attorneys (prosecutors) deciding whether to prosecute the spelunkers
Hold a discussion in which the group takes on the role of the jury. Hence your
job is to reach consensus, if you can. You are not bound by the constraints
that bind judges and you have the power, if not also the right, of
Hold a discussion on the seven precedents concocted by Fuller (Staymore,
Fehler, the ancient and nameless precedent creating the exception for
self-defense, Parry, Scape, Makeover, and Valjean). Taking each precedent in
turn, ask whether it supports the defense more than the prosecution, or vice
versa. How would the other side distinguish it, if it could? How do all the
precedents, taken together, affect your judgment?
Hold a discussion on the written opinions rather than on the facts and law
directly. Which Justice deals most sensitively with the statute and precedents?
Which Justice best lives up to the oath of office? Which Justice has the most
Variation. Break a class into small groups and have each group try to reach
consensus on each of these three questions. Groups that cannot do so before the
hour is up should vote. Bring the names of the 'winning' Justices to the next
class for a plenary discussion.
Pick one of the factual variations from the section above. After discussion,
have the group vote on it. Regard that vote as a precedent for the next
variation. After you have a handful of new precedents in this way, return to
the original facts. How do the new precedents affect your judgment?
Assume that the Supreme Court divided, as Fuller showed. The jury verdict
stands and the men are soon to be hanged. Hold a discussion in which the group
takes on the role of a panel established to advise the executive on whether to
grant clemency. (This variation was used by Anthony D'Amato in his Stanford Law
Review article, vol. 32, 1980, pp. 467-485.)
Assume that the Supreme Court divided and the defendants were hanged. Since 90%
of the public favored acquittal or clemency, members of the Newgarth Parliament
are feeling pressure to amend or replace the murder statute. Hold a discussion
in which the group takes on the role of the legislative sub-committee charged
with drafting the new statute. There are at least three issues: (1) What sort
of intent or mens rea should we require for murder? (2) What defenses (excuses
and justification) to the charge of murder should we recognize? and (3) What
punishments other than death should we allow?
Peter Suber, Department of Philosophy, Earlham College, Richmond, Indiana,
peters at earlham.edu. Copyright
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