[Paleopsych] Ha'va'd LR: The Case of the Speluncean Explorers: A Fiftieth Anniversay Symposium
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Ha'va'd LR: The Case of the Speluncean Explorers: A Fiftieth Anniversay
1999 June, 112 Harv. L. Rev. 1834
FOREWORD: A CAVE DRAWING FOR THE AGES
NAME: David L. Shapiro *
Lon L. Fuller. *
* William Nelson Cromwell Professor of Law, Harvard University.
* A reprint of Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L.
Rev. 616 (1949). Copyrighted by The Harvard Law Review Association, 1949.
* Carter Professor of General Jurisprudence, Harvard Law School.
* Circuit Judge, United States Court of Appeals for the Ninth Circuit. Judge
Kozinski has no stomach for spelunking; he prefers tamer sports like
snowboarding, bungee jumping and paintball.
* Karl N. Llewellyn Distinguished Service Professor, University of Chicago, Law
School and Department of Political Science.
* Alan M. Dershowitz, Felix Frankfurter Professor of Law, Harvard University.
* Judge, United States Court of Appeals for the Seventh Circuit; Senior
Lecturer, The Law School, the University of Chicago.
... And when one of his justices wanted to argue that it can be easy to tell
that a speaker's precise language contains a slip of the tongue or an
overgeneralized command, the justice pointed to the ability of the "stupidest
housemaid" to interpret her employer's words in light of their purpose - thus
perhaps revealing some assumptions about the nature of the employer-employee
relationship, especially when the employee is a domestic. ... We learn of other
important matters as well - that ten members of the rescue party died in the
course of their efforts, that Newgarth's Chief Executive was well known for his
hard-nosed attitude toward clemency, and that there were significant precedents
on the books, addressing such issues as the availability of self-defense as a
justification for killing (despite the failure of the legislature to mention
it), the willingness of Newgarth's courts to construe statutes to avoid absurd
results, and the application of the anti-theft law to one who stole bread
(Valjean) because he was starving and could not afford to buy it. ...
I. Introduction n1
When I was a student in law school, my two favorite law review articles were
Henry Hart's famous dialogue n2 and Lon Fuller's presentation of the case of
the speluncean explorers. n3 They still are.
Why is that so? Perhaps one never quite gets over the joy of discovering a fine
work of art or literature when one is young. (I still revere War and Peace,
which captivated me as a college sophomore, even though I can't get past the
first hundred pages any more.) But I think more is involved here. The wonderful
essays by Hart and Fuller each combine a timely consideration of
contemporaneous debates with a timeless quality that continues to entice
students and scholars to think and write about them some half a century later -
and will doubtless engage our successors well into the next millennium.
Moreover, each of the essays takes a form that I have always admired and that
seems especially suited to the exploration of such basic questions as the
nature of our federal union and the nature of law itself: an exchange of views
in which competing positions are stated as forcefully as the author knows how.
Indeed, an author's ability to make compelling statements of contrasting views
is, for me, a powerful signal of the author's worth as a scholar.
Small wonder then that when I was invited to contribute a foreword to this
revisiting of Fuller's great work, I felt both flattered and [*1835]
intimidated. If good wine needs no bush, n4 and the lily is not made more
beautiful by being gilded, then what could I hope to add to such an
extraordinary achievement? No more, perhaps, than some thoughts on just why
Fuller's piece has proved so durable and so provocative, and some effort to
connect its insights with those of our contributors to this celebration.
II. Fuller's Achievement
To be sure, Fuller, like Hart and just about everyone else, was only mortal,
and he could not wholly escape the context of the times in which he wrote. Hart
was necessarily dealing with the state of constitutional doctrine as it then
stood, n5 and casually followed the custom of the times by using the term
"wetback" when referring to a Mexican who had illegally entered the country
across the Rio Grande. n6 As for Fuller, his hypothetical case was staffed by
justices who were all male, and though we have little to go on, may also have
been all white and all from relatively affluent backgrounds. n7 After all,
judges predomi [*1836] nantly had those qualities when Fuller wrote. And when
one of his justices wanted to argue that it can be easy to tell that a
speaker's precise language contains a slip of the tongue or an overgeneralized
command, the justice pointed to the ability of the "stupidest housemaid" to
interpret her employer's words in light of their purpose n8 - thus perhaps
revealing some assumptions about the nature of the employer-employee
relationship, especially when the employee is a domestic. Other examples
doubtless abound, as they do in the work of every writer.
But Fuller was still able to write a piece that will endure - one that posed
eternal dilemmas in a remarkably lucid and accessible fashion. Let me count the
First, while the hypothetical - about the dilemma facing those who must kill
one of their number or all die of starvation - drew loosely on two famous
cases, n9 Fuller made his own case more difficult and challenging through a
variety of devices. He moved the setting to Newgarth, a jurisdiction of which
we know little except for a few matters that leak out of the opinions - for
example, that it has precedents, statutes, judges (all male in this case), a
chief executive with the power to pardon, and housemaids who may sometimes be
stupid. And to confirm the limits of our knowledge, the time of the relevant
events is in the fifth millennium. n10
With respect to the facts themselves, Fuller enriched the knowledge of the
defendants and increased the dilemmas of the case in wondrous [*1837] ways.
For example, his trapped explorers find out that they cannot be rescued in less
than ten days and are assured by experts that their chances of survival for ten
days are slim to none unless they eat one of their members. Then, most
intriguing of all, they all agree to draw lots (actually, to throw dice), to
determine who shall be sacrificed, but before the lottery, Whetmore tries
unsuccessfully to pull out of the agreement. Predictably (Fuller was never a
candidate for a Booker Prize), Whetmore turns out to be the loser when the dice
are cast for him by another, and he is killed and eaten. The others survive and
are prosecuted for murder under a statute providing, in its entirety, "Whoever
shall willfully take the life of another shall be punished by death." n11
We learn of other important matters as well - that ten members of the rescue
party died in the course of their efforts, that Newgarth's Chief Executive was
well known for his hard-nosed attitude toward clemency, and that there were
significant precedents on the books, addressing such issues as the availability
of self-defense as a justification for killing (despite the failure of the
legislature to mention it), the willingness of Newgarth's courts to construe
statutes to avoid absurd results, and the application of the anti-theft law to
one who stole bread (Valjean) because he was starving and could not afford to
buy it. In sum, as one who has often faltered in the effort to construct a
flawless hypothetical, I think that Fuller's comes about as close to perfection
as one can get.
Second, Fuller's opinions for his five justices managed to express an
extraordinary range of views, and to do so with vigor and power. Truepenny, the
Chief Justice, plays the role of narrator (a bit like the butler who comes on
stage in Act I of a drawing-room comedy to dust the furniture and tell the
audience what happened before the curtain went up). But he goes on, briefly but
eloquently, to express two important viewpoints: first, that statutory language
governs when it is free from ambiguity (as he claims it is in this case); and
second, that institutionally, the role of mercy-giver in the criminal context
belongs not to the judiciary but to the executive in the exercise of the pardon
Chief Justice Truepenny is followed by Justice Foster, who strongly disagrees
that the conviction must be affirmed, and in doing so puts forward two separate
(but perhaps related) n13 arguments: the defendants, when they acted, were "in
a "state of nature,'" as much outside the laws of Newgarth as if they were on
the moon, and under the principles applicable in such a state (in other words,
the principles of "natural law"), they were guiltless; n14 and, in any event,
and in a more [*1838] traditional vein, the murder statute must be interpreted
in accordance with its purpose - namely, deterrence. n15 That purpose, he
concludes, would no more be served by upholding a conviction on the facts at
bar than in the case of the recognized justification of self-defense. n16
Justice Foster is then powerfully attacked in the two opinions that follow.
Justice Tatting derides Justice Foster's first argument - questioning when one
can decide that an actor has crossed over into a state of nature and how the
court acquires its authority to apply natural law - and then heaps similar
scorn on Justice Foster's "purposive" analysis, in part by insisting that
purposes are both difficult to ascertain and, usually, multiple. n17 The
justification of self-defense is readily distinguished, the Valjean precedent
is invoked, and then Justice Tatting, baffled by the difficulty of the case and
resentful of the decision to prosecute these hapless defendants under a statute
providing a mandatory death penalty, decides to withdraw. n18
Justice Keen, a man of similar views but made of sterner stuff, votes to
affirm. He insists that his own view of the morality or immorality of the acts
charged is irrelevant, and that the court must recognize the supremacy of the
legislature by applying the statute as written - not by rewriting it as the
justices would like it to read through the dodge of ascertaining some fancied
"purpose" or filling some nonexistent "gap." n19 He even suggests that the
courts may have erred years earlier in recognizing the justification of
self-defense instead of leaving it to the legislature, if it wished, to spell
out the precise contours of such a defense. n20
Finally, Justice Handy, the realist-pragmatist, scoffing at the learned debates
among the other justices, insists that the justices must follow their own
common sense and the popular will - in this case, evidenced by a poll showing
that ninety percent of the people want to let the defendants off with little or
no punishment - and reverse the convictions. n21 He suggests achieving this
result by using whatever legalistic device seems most adaptable ("handy"?) to
the occasion - in this instance, Justice Foster's second rationale. n22
Given a chance to reconsider his withdrawal, Justice Tatting sticks to his guns
(if that is an apt metaphor for a coward), and partly as a [*1839] result of
his refusal to face up to his responsibility as a judge, the convictions are
affirmed by an equally divided vote.
Thus, Fuller managed in these five opinions to introduce just about every
dispute about the nature of law and the role of judges. As Justice Handy notes
before launching into his realist critique, the prior opinions have explored
the clash between natural law and positivism, have examined a range of
approaches to statutory interpretation, and have raised fundamental questions
about the roles and limits of our legal institutions.
A third virtue of Fuller's essay is that if one were unfamiliar with his other
works, one would be hard-pressed to identify his own preferred approach,
although he is perhaps too cynical about the techniques of the realists (as
embodied in Justice Handy's opinion) to be readily identified with that school
of thought. In fact, Fuller's other works reveal an affinity for both aspects
of Justice Foster's approach. n23 Indeed, Fuller's view of the significance of
purposive analysis in interpreting statutes gave rise in later years to the
"legal process" theories of Professors Hart and Sacks, n24 and yet his
criticisms of that approach in the opinions of Justices Tatting and Keen are so
trenchant that future scholars have been able to add little to their arguments.
As noted earlier, this ability - to recognize and articulate the weaknesses in
one's own theories - constitutes, in my view, a hallmark of true scholarship.
Fourth, Fuller not only used his "quintalogue" to explore some of the burning
issues of his own day, especially the effort to resolve the challenges that
natural law and positivism posed for each other; he also hit upon a technique
for articulating these problems that has succeeded in engaging students and
teachers ever since - witness this second symposium on the case in the last six
years. Moreover, as I try to show, the scholars that have followed him may have
cast some further light, but the real illumination still comes from Fuller
Finally, Fuller did all this in a remarkably compact form. Although it is not
unusual for a present-day article on an obscure problem of, say, bankruptcy law
to stretch out for a hundred dreary pages, Fuller's five opinions consumed only
thirty. And the style was not only lucid and accessible; it was also lively and
witty throughout. Erwin Griswold, a man of simple tastes and direct speech,
caught the essence of Fuller's gift for avoiding pretense and obscurity when he
once introduced Fuller as "the only jurisprude I can understand."
III. Later Analyses and Onslaughts
The first extensive return to Fuller's cave appeared as two articles in the
George Washington Law Review in 1993. The articles were entitled The Case of
the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a
Nutshell n25 and The Case of the Speluncean Explorers: Contemporary
Proceedings. n26 Professor William Eskridge, the architect of the project,
contributed an introductory analysis of Fuller's work, and his essay was
followed by seven new opinions in the case authored by a range of academics.
Most of Eskridge's introductory analysis consisted of a scholarly exegesis of
Fuller's piece, which Eskridge described as representing "a moment in the
Anglo-American debate over the role of equity and natural law in statutory
interpretation," n27 and also as a harbinger of the "Legal Process" approach
more fully developed in later years by Professors Hart and Sacks. n28 Eskridge
also noted the skill with which Justices Tatting and Keen question both the
legitimacy and appropriateness of Justice Foster's use of natural law in his
first argument and of "purposivism" in his second. Then, as part of his
introduction of the opinions that follow, Eskridge notes that the world of the
case "and of its Justices - and Lon Fuller's world - [is one] in which the only
actors who matter are male, white, affluent, and heterosexual." n29
Eskridge's introduction is knowledgeable, informative, and generally respectful
of Fuller's insights. My view, which is already apparent and which may not
quite jibe with his, is that Fuller's essay is much more than a document of
historical importance - that it transcends a moment in legal history, or even
several moments, and that (granting that it cannot wholly escape the tacit
assumptions and understandings of its day) will continue to fascinate and
provoke its readers as long as it remains available.
In the seven opinions that followed Eskridge's introduction, perhaps the most
notable feature is that not one new justice voted simply to affirm the
conviction and sentence; rather, three voted to reverse the conviction; two
voted to remand for further factual inquiry relating to - or for jury
determination of - guilt or innocence; one voted to re [*1841] mand solely on
the question of the appropriate sentence; and one voted to reverse the sentence
of execution. n30
That no one voted to affirm both the conviction and sentence is, in part, a
result of Professor Eskridge's selection of judges. As he acknowledges, three
were selected as representatives of feminist theory and two as representatives
of critical race theory. n31 Of the remaining two, one advocated a "purposive"
analysis reminiscent of that espoused by Justice Foster, n32 while the other
appeared to speak for the neo-realist, "critical legal studies" approach
presaged by Justice Handy. n33
The three advocates of feminist theory were Naomi Cahn, Mary Coombs, and Laura
Stein. Professor Cahn voted to remand for further development of the facts in
order effectively to "integrate" the ethics of "care and justice." n34
Professor Coombs noted that it was too easy for judges to identify themselves
with the "privileged" male defendants who found themselves facing death; she
then concluded (perhaps in part because of her fear of judicial bias) that,
since the record did not establish an effective waiver of trial by jury by the
defendants themselves, the case should be retried in order to obtain a jury
verdict on the ultimate question of guilt. n35 Professor Stein, after
speculating on the possible impact of the decision on the disempowered
(specifically including battered women), concluded that much would be lost by
executing these defendants and that as one who "willfully would not give [the
defendants] guidance beforehand," she was "estopped from judging with
As for the two representatives of critical race theory, Professor John Calmore
concluded in light of his own narrative of the history of racial [*1842] and
religious persecution on the planet Newgarth that the entire Newgarthian
criminal justice system was suspect "because we on Newgarth live under
circumstances of racial oppression," n37 and Professor Dwight Greene, viewing
the criminal law as a "legal trap[ ] ... for the less privileged," decided to
affirm the conviction because he knew that the "affluent, all-Caucasoid, male
panel" would not overturn the Valjean case, and one could not (under a theory
of neutral principles?) find murder justifiable in order to survive when theft
was punished under similar circumstances. n38
This is not the place to analyze each of these approaches in detail. Suffice it
to say that while I think there is much to be learned from the neo-realists,
the feminists, and the critical race theorists, I do not count myself among any
of these schools, and I am troubled by each of their conclusions in the context
of Fuller's case. Some have simply refused to accept the case as stated and
have used the opportunity to make up a story of their own and then act on the
basis of that story. (Fuller might well respond, as I often do in class, that
"It's my hypothetical.") Others seem to me to have copped out - Tatting-like -
by imagining that more facts might help or by insisting on a trial by jury of
the ultimate issues. n39 In sum, the opinions rendered in the 1993 Symposium
may represent much more of a relatively brief moment in legal history, and much
less of a timeless consideration of a fundamental dilemma than Fuller's
original. In any event, Fuller's work emerges, in my view, neither bloodied nor
We come then to the present symposium. This time, the editors have sought to
obtain a broader range of views. Their success in this effort is indicated by
the closely divided vote. As I count, the vote to affirm the conviction is 3-3,
n40 with one of the three who voted for affirmance voting at the same time to
invalidate the mandatory death penalty and to remand for further hearing on the
issue of the appropriate sentence. Since, unlike Justice Tatting, I have not
been assigned a judicial role, I could not break the tie if I wanted to - and I
don't. Thus the defendants will have to serve time, but they may not have to
[*1843] face the tribulations of death row, and worse. (I assume that there is
no higher tribunal to which a further appeal would lie.)
A look at the six opinions reveals some surprises and many insights. But once
again, I find myself concluding that the foundation for all that has followed
was laid by Fuller in his thirty pages, and that while much of the subsequent
filigree is entrancing, and sometimes brilliant, both the groundwork and the
structure above it can be found in Fuller's pages.
To begin with the justices who voted to affirm, Alex Kozinski (a federal court
of appeals judge in real life) takes the "textualist" route blazed by Chief
Justice Truepenny and Justice Keen, and also embraces the institutional view
espoused by Chief Justice Truepenny in his reference to the possibility of
relief in the "political arena." n41 Adding to Fuller's arguments, Kozinski
points out that we cannot be sure that the defendants took the wisest course -
perhaps they should have waited for one of their number to expire before diving
into their questionable repast - and that judges should not engage in lawmaking
by disregarding the plain language of a statute. For example, he asks, should
the courts permit an indictment and conviction for killing a dog ("canicide")
on the theory that the drafters of the statute have left a gap that needs to be
This opinion is an eloquent statement of the textualist view, but it raises
some concerns. Should the courts regard themselves only as messengers when
applying the broad language of a statute to a particular problem as long as the
words used are "plain"? Should it matter that the legislature, in the light of
centuries of experience, may have come to expect the process of interpretation
to comprise elements of both agency (the court as applier of the legislature's
mandates) and partnership (the court as fine tuner of the legislature's
general, and sometimes overly general, proscriptions and commands)? To take the
case at hand, Kozinski manages to sidestep the problem posed for him by the
earlier precedent (in Fuller's hypothetical), recognizing a "common law"
justification of self-defense. He does so by invoking other statutory
provisions, apparently not on the books when Fuller wrote, that "define
justifiable homicide" and then by chiding the defendants for not invoking these
previously unknown statutes, "doubtless be [*1844] cause cause they do not
apply." n43 And his "canicide" example n44 is especially ironic in view of the
statutory language proscribing the killing of "another." Another what? n45
Living thing? Homo sapiens? The question may not be answerable without an
analysis of legislative purpose - with whatever materials are at hand.
The next vote to affirm, cast by Cass Sunstein, may come as a bit of a surprise
to some, but the opinion is in fact a masterful application of Sunstein's view,
developed elsewhere in his writings, that it is possible to reach a result on
the basis of what he has described as an incomplete theory - one that reasons
by analogy and does not resolve the most fundamental issues of the nature of
law. n46 While recognizing the virtues of a plain meaning approach (and indeed
placing a good deal of reliance on that aspect of the case), as well as of a
purposive analysis, Sunstein at the same time points out their weaknesses and
limitations. n47 For him, the problem is best approached by a comparison of the
facts to the prototypical case at which the statute is aimed (the killing of an
innocent for selfish purposes) and to its polar opposite (a killing to prevent
the destruction of life by a wrongdoer). Following this analogy, Sunstein
concludes that this killing should not be held justifiable, especially because
Whetmore made a timely effort to pull out of the agreement.
This analysis, in my view, is both stunning in its own right and an
illuminating example of Sunstein's broader approach to the resolution of legal
problems. But I can't resist noting that its elements were, at least to some
degree, present in the opinions of Fuller's justices, including the critiques
of textualism and purposivism, n48 the distinction of the justifications that
had been recognized in the past, n49 and the relevance of Whetmore's effort to
get out of the lottery before the dice were thrown. n50
Robin West casts the third vote for affirmance of the conviction. After
rehearsing (with some new insights) the arguments of Justices [*1845] Tatting
and Keen that a statute of this kind has multiple, sometimes conflicting and
sometimes unknowable, purposes, Professor West focuses on the distinction
between the case at bar and the classic justification of self-defense. n51 She
joins with Sunstein in noting that it is one thing to resist aggression and
quite another deliberately to take an innocent life in order to save the lives
of others. (In the course of this discussion, she analogizes Whetmore's plight
to that of a woman who cannot be required to sacrifice her own life to save
that of the fetus within her.) n52 Finally, she concludes that the mandatory
death penalty cannot withstand constitutional assault because it fails to
permit consideration of mitigating circumstances. n53 At least when it comes to
punishment, she insists, we need not "bifurcate" justice and mercy. n54
Once again, the seeds of these powerful arguments were planted by Fuller in his
critique of purposive analysis, in his distinction of the case of self-defense
against an aggressor, and in his suggestion (in Justice Handy's opinion) that a
formalistic separation of institutional roles - leaving questions of "mercy" to
the executive branch - was a dubious exercise. n55 Of course, Fuller did not
have the benefit (if that's what it is) of our Supreme Court's later
pronouncements on the validity of the death penalty, n56 or of its decisions
dealing with the constitutionality of limitations or prohibitions on abortion.
Indeed, it is far from clear that Newgarth has a constitution that bears any
resemblance to ours n57 or that our Supreme Court's highly controversial and
somewhat meandering interpretations of the Constitution on these issues should
serve as a model. And in any event, West's use of the abortion analogy is a
puzzling one since it could, in my view, be turned completely around. Perhaps
instead of analogizing Whetmore to the woman who may not be sacrificed to save
the life of the fetus within her, we might more appropriately draw the analogy
between the mother and the defendants. After all, just as the greater good may
consist in allowing the sentient mother to preserve her health or life by
sacrificing an unborn child, so the greater good may be achieved by [*1846]
sacrificing one innocent to preserve the lives of many (at least if fair
procedures are followed).
When we turn to those who would reverse the convictions, Frank Easterbrook's
vote and rationale may come as something of a surprise to those who associate
him with the "textualist" approach. In concluding that this case does not fall
within the broad language of the statute, Easterbrook (a once and continuing
academic and a federal appellate judge in real life) emphasizes such matters as
historical context, the common law function of the courts in developing
defenses to criminal charges, and the role of the courts not just as agents but
as partners of the legislature in fitting new statutes into the "normal
operation" of the legal system. n58 His thoughtful distinction between the
Valjean case and the case of the starving mountaineer is presented as part of a
"utilitarian" analysis of the justification of necessity. n59 Following this
analysis, he concludes that acting behind a veil of ignorance, five explorers
willing to take the risks associated with a dangerous expedition would
rationally agree in advance to a cannibalistic arrangement that reduced the
risk of death by starvation by eighty percent. (He analogizes such an agreement
to the use of a connecting rope by mountain climbers.) n60
Easterbrook's departure from the textualist orthodoxy in this case is not that
surprising, given the sophistication of his approach to statutory construction
and the particular nature of this statute. While much legislation represents a
carefully-wrought compromise between conflicting forces - a compromise that
might be perverted or even wrecked by a refusal to adhere to the text - this
criminal statute is surely more sensibly viewed as an over-general prohibition
enacted by a legislature that, at least implicitly, contemplated the necessity
of judicial fine-tuning. n61
Nor should Easterbrook's view of the utilitarian nature of the "necessity"
defense, which is, I believe, a major contribution to our thinking about the
problem of the case, come as a surprise to those familiar with his academic
work. Once again, though, the approach was heralded in Fuller's piece when
Justice Foster (in the "natural law" part of his argument) said:
If it was proper that these ten lives [of members of the rescue party] should
be sacrificed to save the lives of five imprisoned explorers, why [*1847] 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? n62
That Fuller regarded this analysis as most relevant to a "natural law" thesis,
while Easterbrook sees it as an appropriate tool of statutory interpretation,
is revealing. West insists that the prohibition of murder is about "rights," in
particular the right of the innocent not to be assaulted or killed, n63 while
Easterbrook views the issue of justification in terms of the net cost or
benefit to those affected. n64 If Easterbrook is right, don't we have to worry
about how far the many can go at the expense of the few? And why is it
irrelevant that on the "actual" facts (of the hypothetical), Whetmore tried to
pull out before the drawing - a point not mentioned by Easterbrook? In view of
Whetmore's decision, wouldn't it have been both fairer and at least as sound
from a cost-benefit standpoint to exclude him from the drawing and from the
meal that followed?
Another vote to reverse is cast by Alan Dershowitz, writing under the pseudonym
of Justice De Bunker. n65 Professor Dershowitz, embellishing Fuller's
hypothetical, posits a religious war in the third millennium that culminated,
at least for the vast majority of survivors, in the abandonment of both
religious precepts and any notions of natural law. n66 Having eliminated one
horn of Fuller's dilemma, Dershowitz proceeds - in the first part of his
analysis - to decide for the defendants on the basis of his own preference
(which he hopes will appeal to others) for allowing all conduct that is not
explicitly prohibited by law. Since the murder statute, in his view, does not
address the situation at bar, his preference, derived from his libertarian
principles, furnishes a basis for his vote to reverse. n67
While Dershowitz is surely entitled to choose the positivist road, it is a bit
unfair to Fuller's hypothetical to eliminate the clash with natural law
principles by assuming that society rejected the concept of natural law a
thousand years earlier. And as to allowing whatever is not prohibited, it is
hard to quarrel with that view as a general approach to interpretation - in
truth, I find it very attractive - but I'm not sure that it is helpful in this
case. To be sure, there were two widely noted cases several thousand years
earlier (in other jurisdictions), but both resulted in convictions under a
general statute like this one. n68 To the extent those decisions have any
relevance, why isn't the conviction of the defendants in those cases an
indication that if the [*1848] Newgarth legislature was aware of the problem,
it was quite content with the way it had been treated in the past? n69 Indeed,
if Dershowitz's reading of the statute is correct, can it be taken to prohibit
a murder of a kidnap victim when the ransom is not paid, or for that matter,
any killing under facts not specified in the statute itself? n70
Perhaps aware of the difficulties of his "interpretation" of the Newgarth
murder statute, Dershowitz goes on in what looks like an alternative rationale
to make an argument based on "necessity." n71 This argument bears a strong
resemblance to Easterbrook's utilitarian calculus, and as I have tried to
suggest and others have forcefully argued, such an argument has both virtues
and shortcomings. The most important of the shortcomings, in my view, is that
it poses agonizing problems for a system of law that seeks in general to
protect the innocent from being sacrificed by others for the greater good. In
any event, I remain unpersuaded by Dershowitz's concluding effort to tie
together the two strands of his argument by noting that "our legislature has
not explicitly spoken to this specific problem [of the nature and scope of a
"necessity" defense]." n72
All of which brings us to Paul Butler's opinion. Already known for his article
in the Yale Law Journal, advocating that black jurors practice nullification
when black defendants are charged with non-violent crimes, n73 Professor Butler
has decided to do himself at least one better. Seizing on Justice Foster's use
of a "stupid[ ] housemaid" n74 to make a point about purposive construction,
Butler writes an opinion from the perspective of that housemaid - and writes it
in a style that is a curi [*1849] ous mixture of Butler's version of ebonics,
four-letter words, thoroughly Bluebooked legal citations, and rather elegant
phrases like "Having determined no moral culpability in the defendants'
actions," n75 and "In the last part of the twentieth century, ... Negroes ...
were difficult and expensive to rehabilitate and it was pleasurable to punish
them." n76 The thrusts of his opinion are that no crime deserving of moral
condemnation has been committed, n77 that there is no sense in killing someone
to prove that killing is wrong, n78 and that in any event, there is no true
rule of law because "the Supreme Court of Newgarth ain't never gone choose law
to favor the poor and colored folks ... at least not to the point that the rich
white folks' richness and whiteness is threatened." n79 And in the peroration,
the housemaid is beguiled by the irony that after "sacrificing the lives of
people of color for centuries," Newgarth has come to the point where "white
folks sacrifice white lives for the greater good." n80
Granted (as Fuller recognizes in invoking the image of Jean Valjean), n81 the
law may appear even-handed when in fact - as Anatole France so brilliantly put
it n82 - it frequently treats the poor more harshly than the rich, and the poor
in this country have often been people of color, especially blacks. Granted
too, Butler's prose has an attention-grabbing, if disconcerting, shock value.
n83 The question still remains whether - by operating on the assumption that
Newgarth in the fifth millennium is like twentieth-century society at its
worst, and on the more patronizing assumption that a hypothetical "stupid
housemaid" is black - Butler has treated Fuller's case with respect, or has
simply used it as a platform to sound a brassier version of a note he has
played before. Butler's challenge to the whole concept of "legal reasoning"
echoes the criticism of the legal realists in the early decades of this century
and of their intellectual successors in the critical legal studies movement of
more recent times. Fuller himself, who valued the rule of law, may have gone
overboard in suggesting, through Justice Handy, that the alternative is to take
the popular pulse and act ac [*1850] cordingly. n84 But I am left wondering
whether Butler's critique carries us beyond these earlier contributions. As
Kozinski states forcefully in his opinion, Butler's approach contains its own
puzzling inconsistencies and leaves us in the dark about how a better world
might apply the rule of law in a case like this. The difficulty may well lie in
Butler's insistence on viewing the explorers' case as a parable about race and
A Jewish colleague of mine - one of the participants in this project who shall
remain nameless - told me years ago that when he was young, he would come home
from a baseball game and announce proudly to his grandmother that "The Dodgers
won!," to which his grandmother would reply, "So, is it good for the Jews?"
Probably not, but it wasn't bad for them either.
* * *
In raising some questions about the new opinions assembled for this project, I
do not mean either to deny the many insights in these opinions or even remotely
to suggest that I could have done better. I am quite sure that I could not. But
- as the reader must be tired of reading by now - I am convinced that one
proposition is established by the continuing debate: Lon Fuller has posed a
problem as challenging for those who worry about the law and legal institutions
as is the origin and ultimate fate of the universe for astronomers.
THE CASE OF THE SPELUNCEAN EXPLORERS*
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 ac [*1852] cess 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 his companions.
> 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.
[*1853] 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 [*1854] 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 of law.
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.
[*1855] 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 our positive 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
[*1856] 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 [*1857] 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 [*1858] 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 ca [*1859] pacity 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.
[*1860] 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 demonstrations.
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 stat [*1861] ute 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 ex [*1862] planation, 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 [*1863] 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 [*1864] 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 [*1865] 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
[*1866] 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
[*1867] 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
[*1868] 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 [*1869] 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 lacking.
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, [*1870] 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, [*1871] 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 observed?
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 al [*1872] most 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 [*1873] the advice of
Private Citizen Keen will appear in the reports of this court printed at
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 [*1874] 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 cer [*1875] tain 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 REVISITED
Kozinski, J. *
In the days when the judges ruled, a great famine came upon the land ...
Ruth 1:1 The statute under which defendants were convicted could not be
clearer. It provides that "whoever shall willfully take the life of another
shall be punished by death." N. C. S. A. (n. s.) 12-A. These thirteen simple
English words are not unclear or ambiguous; they leave no room for
interpretation; they allow for no exercise of judgment. (It would be different,
of course, if the statute contained such inherently ambiguous terms as "is,"
"alone," or "have sex" - which might mean anything to anybody - but fortunately
it doesn't.) Statutory construction in this case is more accurately described
as statutory reading. In these circumstances, a conscientious judge has no
choice but to apply the law as the legislature wrote it.
As the jury found, Roger Whetmore did not die of illness, starvation, or
accident; rather, he was killed by the defendants. And the killing was not the
result of accident or negligence; it was willful homicide. Indeed, defendants
thought long and hard before they acted, even going to the trouble of
consulting physicians and other outside advisors. Under the law of Newgarth,
which we have sworn to apply, we must affirm the conviction.
Defendants argue this result is unjust and ask us to make an exception because
of the difficult and unusual circumstances in which they found themselves. They
claim it is perverse, possibly hypocritical, to punish them for acts that even
the best among us might have committed, had we found ourselves in the same
predicament. These are good arguments, presented to the wrong people.
There was a time in our history, during the age known as the common law, when
judges did not merely interpret laws, they actually made them. At common law,
when the legislature was seldom in session and statutes were few and far
between, judges developed the law on a case-by-case basis. One case would
announce a rule that, when applied to unanticipated facts, reached an absurd
result. The judges would then consult their common sense - their sense of
justice - and modify the rule to take account of the novel circumstances. At
com [*1877] mon law, justice meant tweaking a harsh rule to reach a sensible
But we are not common law judges; we are judges in an age of statutes. For us,
justice consists of applying the laws passed by the legislature, precisely as
written by the legislature. Unlike common law judges, we have no power to bend
the law to satisfy our own sense of right and wrong. As a wise jurist once
observed, "judicial discomfort with a surprisingly harsh rule is not enough to
permit its revision." United States v. Fountain, 840 F.2d 509, 519 (7th Cir.
1988) (Easterbrook, J.). That we may feel sympathy for the defendants - that
any of us might be in their place but for the grace of God - gives us no
authority to ignore the will of the citizens of Newgarth, as embodied in their
duly enacted laws. (Unless, of course, the laws violate the Newgarth
Constitution - which the law here does not.)
This case illustrates why justice is too elusive a concept to be left to
judges. Before us stand sympathetic defendants, represented by silver-tongued
lawyers who argue that their clients had no choice but to kill Whetmore. "If
they had to eat, you must acquit," they tell us. The reality is more doubtful.
Defendants were told there was "little possibility," supra, at 1852 (Truepenny,
C.J.) - not "no possibility" - they would survive for the ten more days it
would take to rescue them. The human body can be strangely resilient and
oftentimes surprises us. For example, in late twentieth-century America, Karen
Ann Quinlan lived for nine years after life support systems were removed from
her comatose body - contrary to doctors' predictions that she would die at once
if life support were removed. See Cruzan v. Harmon, 760 S.W.2d 408, 413 & n.6
(Mo. 1988), aff'd sub nom. Cruzan v. Director, Mo. Dep't of Health, 497 U.S.
Had defendants not taken Whetmore's life, everyone in the group might have
survived. And if all had not survived, one surely would have died first, and
that unfortunate fellow's body could have been eaten by the rest. Whetmore
himself seemed to think that survival for another week was possible; why were
the others in such a rush to shed blood? Whether the deliberate killing of a
human being under these circumstances should be criminal is a difficult
question. It must be answered by the conscience of the community, and that
conscience is better gauged by the 535 members of the Newgarth legislature than
by six unelected, effectively unremovable judges.
Defendants also argue that the Newgarth legislature could not have meant what
it said - that it must have overlooked a case such as theirs. But defendants
are not the first to have suffered this predicament. More than two millennia
have passed since Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884), which
raised precisely the same question, and United States v. Holmes, 26 F. Cas. 360
(C.C.E.D. Pa. 1842) (No. 15,383), which dealt with a closely analogous
situation. Unfortunate incidents like these do happen from time to time, and we
[*1878] must presume the legislature was aware of them, yet chose not to make
But even if this were a case of legislative oversight, it would make no
difference. We are not free to ignore or augment the legislature's words just
because we think it would have said something else, had it but thought of it.
Next week we may have a case in which a man is sentenced to death for killing
his dog. Could we affirm the sentence if we were persuaded that the legislature
would have made canicide a capital offense, had it but thought of it? Surely
If putting these defendants to death is unjust - if it offends the sense of the
community - relief must come from the organs of government best equipped to
judge what the community wants. Contrary to defendants' claim that they have
widespread support among the population, elected officials have been strangely
deaf to their pleas. The Newgarth legislature - which is almost always in
session nowadays - could have amended N. C. S. A. (n. s.) 12-A to make an
exception for defendants' case. Any such law could have been made expressly
applicable to the defendants, as the Newgarth Constitution contains no reverse
ex post facto or bill of attainder clauses. Then again, the Attorney General
could have chosen not to prosecute, or to prosecute for a lesser offense. The
grand jury - sometimes referred to as the conscience of the community - could
have refused to indict, but indict it did. And the petit jury could have
exercised its power of nullification by returning a not guilty verdict if
convicting defendants offended its collective conscience. See Paul Butler,
Racially Based Jury Nullification: Black Power in the Criminal Justice System,
105 Yale L.J. 677, 700-01 (1995). It would be arrogant for us to pretend that
we know better than all these other public officials what justice calls for in
this case. The political process may yet come to the defendants' rescue, or it
may not. But it is in the political arena that defendants must seek relief if
they believe the law, as applied to them, has reached an unjust result. We
serve justice when we apply the law as written.
* * * Although this concludes my analysis, I pause to comment on the views
expressed by my colleagues. Some of them, see infra, at 1913 (Easterbrook, J.);
infra, at 1884-85 (Sunstein, J.), infer judicial authority to read exceptions
and defenses into N. C. S. A. (n. s.) 12-A from the fact that the statute, if
read literally, would condemn willful killings by police, executioners, and
those acting in self-defense. This presupposes that section 12-A is the only
statute bearing on this issue, which it surely is not. In a statutory system,
the definition of murder is written in categorical terms, as in section 12-A,
while other provisions define justifiable homicide, such as legal authority and
self- [*1879] defense (archaic examples dating from as far back as the
twentieth century include sections 196 and 197 of California's Penal Code, Cal.
Penal Code 196-197 (West 1988), and section 35.05 of the New York Penal Law,
N.Y. Penal Law 35.05 (Consol. 1998)), and excusable homicide caused by accident
or misfortune during a lawful activity (to give another twentieth-century
example, section 195 of California's Penal Code, Cal. Penal Code 195).
Defendants have not cited any of the provisions dealing with justification or
excuse, doubtless because they do not apply. But that doesn't mean they don't
exist, or that the legislature gave judges blanket authority to cut holes into
the statute whenever the spirit so moves them.
The folly of this approach is perhaps best illustrated by Justice Easterbrook,
who finds justification here based on an easy calculus: the killing is
justified if there is a net savings in lives. See infra, at 1915 (Easterbrook,
J.). But, as Justice West ably demonstrates, there are many situations where
one could offer such a justification - the case of the conscripted organ donor
for example. See infra, at 1896 (West, J.). Justice Easterbrook offers a
"negotiation" rationale for his conclusion - he infers that the spelunceans
would have preferred to enter the cave under a regime where one would be
sacrificed to feed the rest rather than under a regime where all would starve.
See infra, at 1915-16 (Easterbrook, J.). One could just as easily hypothesize a
negotiation as to organ donation: any group of five people (one healthy and
four needing his organs) could be supposed to have made a pact, while they were
all still healthy, to sacrifice the one among them whose organs would be needed
to save the rest. Under Justice Easterbrook's rationale, the four would be
justified in hunting down a fifth and ransacking his body for vital organs.
The parties here did negotiate but failed to reach agreement because Whetmore
refused to go along with the bargain; he, at least as of that time, thought
that a one in five chance of being killed and eaten was worse than the
alternative. My brother Easterbrook rejects this actual negotiation in favor of
a hypothetical one where the outcome is dictated entirely by his personal
preferences, but he gives no satisfactory reason for doing so. The negotiations
actually conducted between the parties - where death was imminent and the risks
concrete - are surely a better indication of what agreement would be reached by
people in dire straits than Justice Easterbrook's musings about what imaginary
explorers, faced with a remote and hypothetical risk, would decide if they took
the trouble to think about it. This is a case of a judge who will not let mere
facts stand in the way of a perfectly good theory. It demonstrates, better than
anything I might say, the danger of appointing academics to the bench.
I am more sanguine about the approach taken by my brother Sunstein, though he
dithers mightily before he gets to the point. Unlike Justice Easterbrook - who
lightly undertakes to weigh life and death [*1880] whichever way his fancy
strikes him - Justice Sunstein at least announces a constraining principle:
where the statute is clear, we can ignore its plain meaning only when it
reaches an absurd result. See infra, at 1883-84 (Sunstein, J.). And he rightly
concludes that application of the statute to this case does not reach an absurd
result. See id. at 1883-84. Though Justice Sunstein makes the case harder than
it need be, I agree with Parts II and III of his opinion because they
articulate a workable principle of law that does not depend unduly on the value
system of the judge applying it.
Which is more than I can say for the opinion of my sister De Bunker. Aside from
the fact that she is a Godless heathen - for which she will suffer the tortures
of the Ghenna until the coming of the Messiah (which won't be too much longer
now if we keep writing opinions like these) - her rationale is, not to put too
fine a point on it, odd. As I understand her position, she believes that the
defendants acted lawfully because the legislature did not specifically prohibit
the killing and eating of someone under these circumstances. See infra, at 1912
(De Bunker, J.). The general prohibition against willful killing is not enough,
De Bunker tells us; the legislature had to enact an affirmative prohibition.
See id. at 1905. But the legislature also did not affirmatively prohibit
killing on Tuesday, or killing for the purpose of harvesting body parts, or
killing by someone who can achieve sexual gratification only when his partner
succumbs. Nor did the legislature pass laws that specifically prohibit stealing
from the rich to give to the poor, though many people believe it's entirely
justifiable and have since the days of Robin Hood and Goldilocks.
Were Justice De Bunker's rationale to become the law of the land, the
legislature would spend its entire time reenacting every law it has already
passed, only to say: Yes, we really mean for it to apply in this circumstance
or that. And who can tell what special circumstances require affirmative
legislative action? Not until the matter is brought before our Court will the
legislature learn whether a particular situation is covered by the general rule
or requires a specific prohibition - in which case the misconduct suddenly
Nor is this the only danger. Once the legislature is forced to abandon general
statutes in favor of multiple specific prohibitions, the problem arises of how
to deal with the interstices. If the statute prohibits theft of currency, and
theft of bullion, and theft of negotiable securities - rather than merely theft
of property - what happens when someone steals something not covered by one of
the specific prohibitions, like ancient Krugerrands? Inclusio unius est
exclusio alterius, will argue the defendants. Even though Krugerrands are in
all material respects the same as bullion and currency, the listing of the
latter two raises the inference that the third was meant to be omitted. Surely,
the legislature must be permitted to outlaw a generic evil and then create
specific exemptions where they appear to be warranted. [*1881] Justice De
Bunker's system would quickly devolve into such chaos that a party who could
afford a battery of clever lawyers would get away with murder.
But for two reservations, I would be inclined to join my sister West's opinion.
The two reservations, however, are substantial. Although I agree with much of
what she says about the need for the law to be applied equally - and with her
trenchant observation that failure to prosecute certain crimes is a species of
discrimination visited upon the victims of those crimes, see infra, at 1894-95
(West, J.) - I believe she goes too far. The clear implication of Justice
West's opinion is that the legislature here could not have passed a statute
authorizing the killing of Whetmore under the circumstances of this case,
because to do so would have posthumously withdrawn from Whetmore the right to
equal protection of the laws. Presumably, she also believes it would have been
a denial of equal protection for the Attorney General not to prosecute the
defendants or for the Chief Executive to grant them a pardon, because each of
these actions (or inactions) would deny Whetmore (and future Whetmores) the
protection of law when they need it most.
With this I cannot agree. As I said earlier, I believe that the legislature
could properly conclude that the conduct here should not be criminal - and
indeed could still do so. I do not agree that this would amount to a withdrawal
of equal protection; it would merely adjust rights and responsibilities to
reflect conflicting values. Because, as Justice Sunstein explains, this is not
an absurd (or, I might add, invidious) choice, see infra, at 1888 (Sunstein,
J.), I would leave it open to the legislature. The matter would be different
for me if the legislature made a wholly irrational or invidious exception to a
generally applicable law, such as legalizing murder or theft in poor
My other reservation about Justice West's opinion, of course, concerns her
ruling as to the sentence. I need not dwell on our standing dispute as to
whether the imposition of a sentence - particularly a death sentence - must be
conditioned on the implementation of a mitigation principle that allows the
sentencer to grant defendants "merciful justice," infra, at 1899 (West, J.). I
find even more troubling the remedy she adopts, namely the remand for a
mitigation hearing. What exactly will happen during the course of such a
hearing? Presumably the defendants will try to persuade the judge or jury not
to impose the death sentence. But what if they succeed? Our law authorizes
death as the only punishment for violating N. C. S. A. (n. s.) 12-A. What can
the sentencer do if it is persuaded that the death penalty here is too harsh?
May it order whatever other punishment it believes fits the crime, such as
whipping, nailing defendants' ears to the pillory, community service,
amputation, or exile? My colleague may believe that the judge or jury would
order defendants imprisoned, but I don't see where that punishment is
authorized any more than [*1882] those listed above. The statute provides
only one punishment for the crime of willful homicide, and imprisonment is not
it. Were the jury to impose a term of years, we would be required to set
defendants free because they would be held without legal authority.
What can I say about my sister Stupidest Housemaid's opinion, as she has
retreated into one of her occasional "other voices" methods of analysis? While
I find her methodology refreshing and wish the rest of us had the courage and
imagination to forsake our "whereases" and "wherefores" for a more colloquial
form of discourse, in the end I believe she errs even on her own terms. If I
understand Justice Studpidest Housemaid's approach, she is voting to reverse
the conviction because she does not feel bound by the terms of N. C. S. A. (n.
s.) 12-A. And she does not feel bound because she believes that there is no
such thing as a rule of law - in her words "the law can often be argued every
which way but up." Infra, at 1920 (Stupidest Housemaid, J.). My sister instead
judges this case by her moral sense.
Justice Stupidest Housemaid also recognizes, however, that "it would be useful
for the rule of law to exist," and that "it may even be true that the servant
needs a rule of law more than the master." Id. at 1922. Yet she does not take
the opportunity to announce how the rule of law should apply in these
circumstances, or to try to persuade a majority of the court to do so. Rather,
she revels in what she sees as the absence of a rule of law, in a raw exercise
of judicial power.
This is too bad, because it might be useful to hear Justice Stupidest
Housemaid's explication of how a fair and neutral law might be applied in this
case. She gives us tantalizing hints, but fails to follow through. For example,
she observes that the spelunceans' activities resulted in a great expenditure
of resources and the death of ten workers. She says that defendants ought to be
held responsible for those deaths. See id. at 1919. Perhaps so, yet Justice
Stupidest Housemaid abandons that thought without bringing it to its logical
conclusion. I don't understand why. Defendants, after all, stand convicted of
murder. The conviction is based on the record developed at trial, which
includes information about the ten dead workers. Because Justice Stupidest
Housemaid has abandoned the statute as a guide of decision and, instead, uses
her moral sense as a compass, she could well affirm the convictions on the
ground that defendants caused the deaths of the workers.
Such analysis would proceed along the lines of Justice Stupidest Housemaid's
opinion. She should start by asking whether what defendants did was morally
reprehensible. See id. at 1918. I infer she would say yes: Defendants went into
the cave, exposed themselves to danger, knowing full-well that if they got into
trouble great efforts would be made to rescue them - wasting valuable resources
and endangering the lives of the rescuers. As Judge Cardozo said long ago,
[*1883] "Danger invites rescue." Wagner v. International Ry. Co., 133 N.E.
437, 437 (N.Y. 1921).
Second, my sister Stupidest Housemaid would look to deterrence. You can bet
that if these defendants were convicted of murder for the death of the
rescuers, that would make future billionaires think twice and three times about
risking their lives in balloons and the like. In terms of incapacitation, we
need not worry about those same billionaires doing it again. As for
rehabilitation, the death penalty probably would not achieve that end, but
three out of four ain't bad.
Of course there are some gaps to fill, like the fact that defendants were not
charged with killing the workers. But these are the kind of meaningless legal
formalisms that my sister Stupidest Housemaid disdains. As she is fond of
saying, "When you is sittin on top, you can spit on them below and they can't
spit back." (Actually, she says something very close to this, but I changed one
little word out of a sense of decorum.) To which I would add, "If you gonna
spit, don't spit in the wind." Which is by way of saying: How does it help the
cause of the poor, of the oppressed, of the people of color, to let these four
rich white guys walk when the law pretty clearly says they're guilty? It seems
to me that my sister Stupidest Housemaid got bit by the white man's bug: "When
white folks sacrifice white lives for the greater good, it's a big confusing
problem." Id. at 1923. But Justice Stupidest Housemaid doesn't need to make "a
big confusing problem" out of it. She can simply apply the white folks' law to
these white folks and - according to her own lights - they'd get their just
deserts. Why should the stupidest housemaid work so hard to pull her master's
chestnuts out of the fire?
Sunstein, J. * The defendants must be convicted. Their conduct falls within the
literal language of the statute, and the outcome is not so absurd, or so
peculiar, as to justify this Court in creating, via interpretation, an
exception to that literal language. Whether a justification or excuse would be
created in more compelling circumstances is a question that I leave undecided.
I also leave undecided the question whether the defendants might be able to
mount a separate procedural challenge, on constitutional grounds, to the death
sentence in this case.
In the process of supporting these conclusions, I suggest a general approach to
issues of this kind: Apply the ordinary meaning of statutory language, taken in
its context, unless the outcome is so absurd as to suggest that it is
altogether different from the exemplary cases that [*1884] account for the
statute's existence, or unless background principles, of constitutional or
similar status, require a different result.
I confess that I am tempted to resolve this case solely by reference to the
simple language of the statute that we are construing. The basic question is
whether the defendants have "willfully taken the life," N. C. S. A. (n. s.)
12-A, of another human being. At first glance, it seems clear that the
statutory requirements have been met. Perhaps we should simply declare the case
to be at an end.
An approach of this kind would have the benefit of increasing certainty for the
future, in a way that reduces difficulty for later courts, and also for those
seeking to know the content of the law. This approach enables people to plan
and keeps the law's signal clear; the increased certainty is an important
advantage. Such an approach also tends to impose appropriate incentives on the
legislature to be clear before the fact and to make corrections after the fact.
I would go so far as to suggest that a presumption in favor of the ordinary
meaning of enacted law, taken in its context, is a close cousin of the
void-for-vagueness doctrine, n1 which is an important part of the law of this
jurisdiction with respect to both contracts and statutory law. By insisting on
the ordinary meaning of words, and by refusing to enforce contracts and
statutes that require courts to engage in guessing games, we can require
crucial information to be provided to all relevant parties, and in the process
greatly increase clarity in the law.
Nor is this a case in which a statutory phrase is properly understood as
ambiguous or unclear. We do not have a term like "equal," "reasonable," or
"public policy," whose content may require sustained deliberation or even
change over time. It may be possible to urge that the statutory term
"willfully" creates ambiguity, but I cannot see how this is so. There is no
question that the defendants acted willfully under any possible meaning of that
term. There is nothing wooden, or literal in any pejorative sense, in saying
that the words here are clear.
I have been tempted to write an opinion to this effect and to leave it at that.
But both principle and precedent make me unwilling to take this route. As a
matter of principle, it is possible to imagine cases that fit the terms of this
statute but for which the outcome is nonetheless so peculiar and unjust that it
would be absurd to apply those terms literally or mechanically. In any case,
our own jurisprudence forbids an opinion here that would rest entirely on the
statutory text. For centuries, it has been clear that the prohibition in N. C.
S. A. (n. s.) [*1885] 12-A does not apply to those who kill in self-defense,
even though there is no express statutory provision making self-defense a
legally sufficient justification. Our conclusion to this effect is based not on
literal language, but on the (literal) absurdity of not allowing self-defense
to count as a justification. Those justices who purport to be "textualists"
here are running afoul of well-established law; I cannot believe that they
would remain "textualists" in a genuine case of self-defense.
Nor is it clear that the statute would apply, for example, to a police officer
(or for that matter a private citizen) who kills a terrorist to protect
innocent third parties - whether or not there is an explicit provision for
justification or excuse in those circumstances. Where the killing is willful,
but necessary to prevent a wrongdoer from causing loss of innocent life, a
mechanical or literal approach to this statute would make nonsense of the law.
A statute of this breadth creates a risk not of ambiguity, but of excessive
generality - the distinctive sort of interpretive puzzle that arises when broad
terms are applied to situations for which they could not possibly have been
designed and in which they make no sense.
A possible response would be that to promote predictability, excessive
generality should not be treated as a puzzle at all; we must follow the natural
meaning of the words, come what may. But as I have suggested, our self-defense
jurisprudence makes this argument unavailable in the current context. But put
the precedents to one side. In ordinary parlance, people routinely counteract
excessive generality, and thank goodness for that. For example, a parent may
tell his child: "Do not leave the house under any circumstances!" But what if
there is a fire? A judge may tell his law clerk: "Do not change a single word
in this opinion!" But what if by accident, the word "not" was (not?) inserted
in the last sentence? Interpreting statutes so as to avoid absurdity could not
plausibly undermine predictability in any large-scale or global sense. Nor is
it clear that absurdity would be corrected by the legislature before or after
the fact. Whether the legislature would correct the absurdity is an empirical
possibility, and it is no more than that. Even the most alert people have
imperfect powers of foresight, and even the most alert legislature cannot
possibly anticipate all applications of its terms.
I conclude that when the application of general language would produce an
absurd outcome, there is a genuine puzzle for interpretation, and it is
insufficient to invoke the words alone. The time-honored notion that criminal
statutes will be construed leniently to the criminal defendant strengthens this
point. I am therefore unwilling to adopt an approach that would, in all cases,
commit our jurisprudence to taking statutory terms in their ordinary sense.
As I will suggest, the key to this case lies in showing that the best argument
for the defendants is unavailable, because a conviction here would not be
analogous to a conviction in the most extreme or absurd applications of the
statutory terms. But before discussing that point, I pause to deal with some
alternative approaches. Troubled by a conviction in this case, the defendants
and several members of this Court have urged some creative alternatives. It is
suggested, for example, that under the extreme circumstances of the collapse of
the cave opening, the law of civil society was suspended and replaced by some
kind of law of nature. See supra, at 1855 (Foster, J.). To the extent that this
argument is about a choice of law problem, I do not accept it. There is no
legitimate argument that the law of some other jurisdiction applies to this
case, and I do not know what is meant by the idea of the "law of nature." The
admittedly extreme circumstances themselves do not displace the positive law of
this state. Extreme circumstances are the stuff of hard cases, and what makes
for the difficulty is the extreme nature of the circumstances, not anything
geographical. The question is what the relevant law means in such
circumstances, and to say that the law does not "apply" seems to me a dodge.
The view that extreme circumstances remove the law's force is a conclusion, not
Nor is this a case in which a constitutional principle, or a principle with
constitution-like status, justifies an aggressive construction of the statute
so as to make it conform to the rest of the fabric of our law. When a statute
poses a problem of excessive generality, a court may properly avoid an
application that would raise serious problems under the Constitution,
including, for example, the Equal Protection Clause, the First Amendment, or
the Due Process Clause. If a legislature intends to raise those issues, it
should be required to focus on them with some particularity. Though it cuts in
a different direction from the "plain meaning" idea, this principle is also a
close cousin of the void-for-vagueness doctrine, designed to require
legislative, rather than merely judicial, deliberation on the underlying
question. But there is no such question here.
Several members of this Court emphasize the "purpose" of the law. See, e.g.,
supra, at 1857 (Foster, J.). They claim that the defendants should not be
convicted because while their actions fall within the statute's letter, they do
not fall within its purpose. I have considerable sympathy for this general
approach, which is not terribly far from my own, and I do not deny that purpose
can be a helpful guide when statutory terms are ambiguous. Statutes should be
construed reasonably rather than unreasonably, and when we do not know what
statutory terms mean, it is legitimate to obtain a sense of the reasonable
[*1887] goals that can be taken to animate them and to interpret them in this
But there are two problems with making purpose decisive here. First, there is
no ambiguity in the statutory terms; when text is clear, resort to purpose can
be hazardous. Second, the purpose of any statute can be defined in many
different ways and at many levels of generality; and at least in a case of this
kind, it is most unclear which characterization to choose. Is the purpose of
this statute to reach any intentional killing? Any intentional killing without
sufficient justification? Any intentional killing not made necessary by the
circumstances? To reach willful killings while at the same time limiting
judicial discretion? To make the world better on balance? Any answer to these
questions will not come from the statute itself; it is a matter not of
excavating something but of constructing it. Where the statute is not
ambiguous, we do best to follow its terms, at least when the outcome is not
absurd. It is that question to which I now turn.
Thus far, I have urged a particular view of this case: the statute contains no
linguistic ambiguity. At most, the statute raises the distinctive interpretive
problem created by excessive generality. We have long held that self-defense is
available by way of justification. It is unclear whether - and we need not
decide whether - the statute would or should be inapplicable to some other
cases in which a life was taken "willfully" in order to prevent the death of
innocent people. For purposes of analysis let us assume, without deciding, that
the statute would and should not be so applied. The question then is whether
this case is sufficiently like such cases. If it is, then we will have to reach
the difficult question of whether an exemption would be allowed in those
In cases that seem to raise a problem of excessive generality, it is often
useful to proceed by identifying the exemplary or prototypical cases, that is,
the cases that are most clearly covered by the statute. I do not mean to
suggest that a statute's reach is limited to such cases; generally it is not.
But an identification of the prototypical or exemplary cases can help in the
decision whether an application is so far afield as to justify an exemption.
The exemplary or prototypical cases within the purview of this statute include
those of willful killing of an innocent party, motivated by anger, greed, or
self-interest. It is also possible to imagine cases that are at an opposite
pole but that seem covered by the statute's literal language: when a defendant
has killed someone who has jeopardized the defendant's own life, we have a
legally sufficient justification under our law, no matter what the statute
literally says. And why would cases of this kind be at the opposite pole? The
answer is that, in such cases, the victim of the killing is [*1888] himself
an egregious wrongdoer, one whose unlawful, life-threatening misconduct
triggered the very killing in question. In such a case, application of the ban
on willful killing would indeed seem absurd. It is hard to identify a sensible
understanding of the criminal law that holds a defendant criminally liable in
such circumstances. In fact, the law recognizes a legally sufficient
justification in such circumstances, despite the literal language of the
statute. If this case were akin to those at this pole, I have suggested that we
would have an exceedingly hard question.
But - and now I arrive at the crux of the matter - we have here a quite
different situation. The victim was not a wrongdoer, and he did not threaten
innocent persons in any way. His death was necessary only in the sense that it
was necessary to kill an innocent person in order to permit others to live. The
question is not whether we would agree, if we were legislators, to apply the
statute in such situations; to overcome the ordinary meaning of the statutory
terms, the question is whether it would be absurd or palpably unreasonable to
do so. The clear answer is that it is not.
It is hardly absurd to say that there is no legal justification or excuse for a
willful killing in a situation like this one, even if more people on balance
will live (or the killing is otherwise justified by some cost-benefit
calculus). Many people who engage in killing can and do claim that particular
excuse. To be sure, this case is different from the exemplary or prototypical
ones in the sense that the killing was necessary to save lives. But there is
nothing peculiar or absurd about applying the law in such circumstances. People
with diverse views about the criminal law should be able to accept this claim.
Those who believe in retribution and those who believe in deterrence should
agree that the outcome, whether or not correct, is within the domain of the
reasonable. Retributivists and Kantians are unwilling to condemn someone who
has killed a life-threatening wrongdoer. But retributivists and Kantians could
certainly condemn the defendants here, who, to save their own lives, took the
life of a wholly innocent person, one who withheld his consent at the crucial
moment. For the retributivist, those who have killed, in these circumstances,
have plausibly committed a wrongful act, even if that act was necessary to save
a number of lives. It is not unreasonable to say that the victim deserved to be
treated as something other than a means to other people's ends. At the very
least a conviction could not, for a retributivist, be deemed absurd.
For their part, those who believe in deterrence should concede that a verdict
of "innocent" could, in the circumstances of this case, confuse the signal of
the criminal law and hence result in more killings. Many people who willfully
kill believe that the outcome is justified on balance, and we should not
encourage them to indulge that belief. A judgment that N. C. S. A. (n. s.) 12-A
protects all blameless victims [*1889] creates a clear deterrent signal for
those whose independent judgments may not be trustworthy. From the point of
view of deterrence, applying the statute in this instance would, at the least,
not be absurd, which is sufficient to justify my conclusion here.
I would not entirely exclude the possibility that the defendants would have had
a legally sufficient excuse if the unfortunate proceedings had been consensual
at all times. It is conceivable that the absurdity exception would apply in
that event as well. But this case is emphatically not that one, because the
victim's consent was withdrawn before the dice were thrown. At that point, the
victim expressly said that he did not wish to participate in this method of
deciding who would live or who would die. Where, as here, there was no consent
to participate in the process that led to an unconsented-to death, the answer
is clear: Those who killed acted in violation of the statute.
Thus, it should be possible for those with diverse views of the purpose of the
criminal law to agree that there is nothing absurd about following the ordinary
meaning of the statutory text here. Indeed, I do not understand any of those
justices who disagree with my general conclusion to disagree with this
particular point. Their disagreement stems not from a judgment of absurdity,
but from a willingness to disregard the text and to proceed in common law
fashion - a willingness that would, in my view, compromise rule-of-law values.
For example, Justice West urges the need for an individualized hearing, not
because she thinks the conviction absurd, but in order to ensure individualized
justice. See infra, at 1899 (West, J.). Justice Easterbrook thinks this case is
analogous to self-defense, see infra, at 1913 (Easterbrook, J.), but he seems
to take our jurisprudence to mean that courts may make particularized inquiries
into the circumstances of killings. He does not suggest that a conviction would
be absurd. I do not understand Justice Stupidest Housemaid or Justice De Bunker
to find absurdity here. And while I very much agree with Justice De Bunker's
suggestion that criminal statutes should be narrowly construed, see infra, at
1902 (De Bunker, J.), I would apply that suggestion only in cases of genuine
Some members of this Court plainly believe that the killing was morally
excusable, because it was necessary in order to ensure that more people would
live, and because the victim originally designed the plan that led to his
death. See, e.g., infra, at 1916-17 (Easterbrook, J.). But that moral argument
cannot be taken to override the natural meaning of the statutory terms, at
least where the outcome is one that reasonable people could regard as
justified. A serious underlying concern here is that to allow an exception on
the claimed principle would be likely to undermine the statutory prohibition,
either in principle or in practice. In principle, it is at least unclear that
an exemption in this case could be distinguished from a claimed exemption in
other cases in [*1890] which our moral judgments would argue otherwise.
(Consider, for example, a case in which someone shot, in cold blood, a person
whom the killer reasonably believed to be conspiring to kill others.) In
practice, the deterrent value of the law might well be undermined by such an
exemption, and it is at least possible that some people would kill in the
belief or hope that they would be able to claim an exemption. Cost-benefit
analysis has its place, but when a statute forbids "willful killing," we ought
not to allow anything like a cost-benefit exception.
A kind of "meta" cost-benefit analysis may well support this judgment. If
courts engaged in individualized inquiries into the legitimacy of all takings
of life, law would rapidly become very complicated, and the deterrent value of
the statute might start to unravel - especially if prospective killers are at
all attentive to the structure of our jurisprudence. I have considerable
sympathy for Judge Easterbrook's approach to this case; in most ways his
approach tracks my own, and I have been tempted to accept his conclusion as
well. We part company, I think, only because I am more concerned about the
increased uncertainty and muffled signals, for courts and prospective killers
alike, that would come from finding an "exception" here. See id. at 1914-15. I
fear the systemic effects of his (not unreasonable) view about this particular
An implication of my general approach is that the interpretation of statutes,
or rules, has an important analogical dimension. The difference between rule
interpretation and analogical reasoning is far from crisp and clean. In the
interpretation of rules, the ordinary meaning of the terms presumptively
governs; but when the application at hand is entirely different from the
exemplary or prototypical cases, the ordinary meaning may have to yield. In
deciding whether the application is in fact different, we are thinking
analogously. But because it is reasonable to think that this case is analogous
to the exemplary ones - because it involved the taking of an innocent life - we
do best to follow the statutory language.
It is for this reason that I do not believe that we should at this time
consider legal challenges to the death sentence, as opposed to the conviction,
in this case. Justice West has eloquently argued that the death sentence is
constitutionally illegitimate. See infra, at 1897-99 (West, J.). I am not sure
that she is wrong; nor am I sure that she is right. Most of the time, the
Constitution does not permit litigants to "open up" rule-bound law by arguing
that it is unreasonable as applied and asking for an individualized hearing on
its reasonableness as applied to them. A doctrine that would permit frequent
constitutional attacks on rule-bound law would threaten the rule of law itself
- increasing unpredictability, uncertainty, and (because judges are merely
human) threatening to increase error and injustice as well. There can be no
assurance that judges will reach the right outcome once all the facts emerge
for individualized decision. But the death penalty is a distin [*1891] ctive
punishment (to say the least), and the facts of this case are not likely to be
repeated. Perhaps a degree of individualized judgment is constitutionally
required before anyone may be sentenced to death. I would be willing to think
long and hard about a separate challenge to the death sentence as applied; but
I would not decide that issue where, as here, the defendants' challenge is to
the conviction rather than the sentence.
It is my hope that a decision of the case along the lines I am suggesting would
impose some pressure on other institutions to design a statute that makes
reasonable distinctions to which this provision, standing on its own, appears
oblivious. This is in fact a virtue of the species of textualism that I have
endorsed here: the creation of incentives for lawmakers, rather than courts, to
make appropriate judgments about the numerous cases that fall within law's
West, J. * Trapped in a cave, on the verge of starvation, with no credible hope
of timely rescue, five speluncean explorers resolve that their only hope of
survival is to eat one of their own. They determine to do so and to throw dice
to identify who will be the sacrificial lamb. One member then denounces the
plan and withdraws his participation. The group proceeds over his objection,
with his dice being thrown for him by another. The dissenting member, by bad
luck, loses the throw, is killed, and is eaten by his comrades. The group is
soon rescued and hospitalized, but only after the accidental deaths of eight of
the rescuers seeking to secure their release. The survivors are now charged
with murder or, as defined by the relevant statute, with "willfully taking the
life," N. C. S. A. (n. s.) 12-A, of another human being, punishable in all
cases by death.
Under our procedural rules, and acting within its discretion, the jury convened
for this case requested that it be relegated only to the role of fact-finder,
leaving this Court to determine the legal conclusions. The jury found the facts
as briefly recounted above, and it is now our obligation to determine whether
the defendants' conduct constitutes murder. If we decide that it does, then the
mandatory punishment under the statute is death, unless commuted to a lesser
penalty by the governor of the state.
The defendants present two novel arguments that require a response. First, they
argue that they were operating beyond the jurisdiction of this or any other
legal system, not for the usual territorial reason, but rather, for a
jurisprudential one: they claim that their very survival in this peculiar
situation demanded a course of action, the morality or legality of which is
beyond the legitimate power of law to judge. The purpose of law, they urge, is
to facilitate cooperative social living and to maximize the fruits of that
cooperation. Law, then, is predicated upon the possibility that cooperation
will not only increase chances of mutual survival, but will also yield
additional benefits to all. Here, cooperation among all would only guarantee
their mutual demise; thus, the logical predicate for law was absent. The
purpose of law could not be to condemn these actions. Rather, it was both legal
and moral for these trapped men to establish their own council and take
whatever actions were necessary to assure the survival of the greatest number
possible. This they did by agreeing to the procedures of the lottery.
Second, the defendants argue that even if our law applies, they are not guilty
of the crime of murder because they acted in their own self-defense. A killing
is in self-defense, the defendants argue, whenever the situation is such that
one life must be taken in order to save one's own. Such killings are basically
non-deterrable, the defendants explain: there is no threat of punishment that
could change the rational decision to kill. The purpose of our criminal laws
against homicide is deterrence, but these acts were non-deterrable; hence, they
were not crimes. There is no point in applying the criminal sanction of the
law, and therefore, the law does not apply.
Are these arguments meritorious? Of course, there is no authority for the
proposition that the "purpose" of either the rule of law or the laws forbidding
murder, whatever those purposes may be, should determine the limits of the
law's reach. Nor is there authority for the narrow proposition that the
self-defense justification should extend as far as the defendants contend. But
that lack of authority is not fatal to the defendants' argument - at most, it
implies that we are not compelled by precedent to follow the course the
defendants urge. We still need to decide, as a matter of first impression,
whether the arguments they have presented have merit. In my view they do not.
The defendants' first claim is powerful, well reasoned, and rests on seemingly
incontrovertible premises. Much of our law - particularly contract and property
law - is indeed based on the assumption that cooperation through legal
mechanisms can increase the benefits of cooperative social living, and hence on
the further, typically unstated, assumption that cooperative social living
increases rather than decreases the chances of mutual survival. It is also true
that a blanket accep [*1893] tance of our laws by the defendants in their
natural cage would have done nothing to increase their chances of survival or
the benefits of cooperation. We might agree that in order to insure the
survival of the majority of them, or for that matter even one of them, they
would have had to break one or more of this jurisdiction's laws. If the purpose
of law is to secure the gains of cooperation, with the most significant gain
being mutual survival, and if law should not extend beyond the limits of its
defining purpose, then it does seem to follow that the defendants were beyond
the law's reach. There is also a good bit of sense in the defendants' claim
that law, or a law, should not extend beyond the limits of its defining
purpose. To do otherwise is capricious and irrational, rather than lawful, and,
in the case of capital crimes, forces the state to engage in acts that are
themselves unjustified killings. That degree of hypocrisy is intolerable.
The problem with the defendants' argument is not the lack of authority for
their bold assertion that the law should not be pressed beyond its purpose, or
with the logic of that assertion itself. The problem is that they have
misidentified the law's driving purpose. The core purpose of law, or of the
rule of law, is not contract, but rather, the protection of rights, the most
important of which is the individual's right to equal respect, and accordingly,
equal protection under the law. The point of law is to protect all, equally,
against the wrongful private aggression of others. Indeed, it is only within
the umbrella of such equal protection and the individual rights that guarantee
it that contractual freedom and contract law yield any benefits at all.
The insistence on the right of each individual to the enjoyment of equal
protection by the state from the private aggression of others - particularly
homicidal aggression - is the essence of what distinguishes a society living
under the rule of law from a society living under the whimsical dictates of a
state of nature. In the state of nature, an individual or group may, for any
number of reasons, decide that its own chances of survival would be well served
by killing, enslaving, or oppressing another person or group, and such a
decision would quickly become a political reality. The point of the rule of law
is essentially to create and then protect the individual's right not to be so
treated and to sanction the conduct of the group or individual who attempts to
The defendants are surely right that contract, and the protection of social
gain that it facilitates, is at the center of a great deal of our law. But that
body of law is only intelligible once the more fundamental right of equal
protection against private assault is secured. An individual may exploit his
natural talents and strengths in whatever way imaginable in securing gains
through contract. What he may not do is exploit his strength - whether the
source of that strength be a natural inheritance, a cultivated talent, or the
strength of numbers - in such a [*1894] way as to violate the rights of
others. The most central of those rights is, unquestionably, the right not to
be killed, consumed, enslaved, or violently attacked for the benefit of his
brothers. The individual has the right to expect the state to protect him
against exactly this form of exploitation.
Much follows from this core purpose regarding the content of our law. For
example, the common prescriptions against contracting oneself into slavery,
contracting for the sale of a body part, or contracting for one's own death can
be understood as stemming from our conviction that these rights to state
protection against private aggression are so fundamental that they cannot even
be voluntarily foresworn. Contract is predicated upon the provision of these
core protections against private violence, and thus, these protections, in
turn, define the limits of contractual freedom.
More important, if less obvious, than the limits on contract that are implied
by the priority of the individual's right to protection against violence, are
the limits this principle places on actions or inactions of the state. A state
may not decide, for good reasons, bad reasons, or no reason, simply to withdraw
its protective shield from the vulnerable lives of some individual or group,
leaving that individual or group to the mercies of his or her stronger
co-citizens. Nor may a state decide not to extend its protection. A state may
not decide, for example, to proceed with the execution of a wrongly accused
criminal defendant out of the belief that such an execution might prompt a
serial killer to stop killing children. Even if such a belief is fully
justified - even if the state knew that the true killer would in fact stop
killing after the execution in order to reinforce the false societal belief
that the correct killer had been identified - such an execution of an innocent
person would nevertheless be an intolerable violation of the accused's right to
equal protection of the law. Nor may a state decide not to protect a particular
group - for example, poor people who live in dangerous neighborhoods - against
private violence and aggression, even for the reason that to provide such
protection threatens an exceedingly high number of policemen's lives. Nor, of
course, may a state decide not to protect a subgroup - a racial or sexual
minority, for example - against violence out of a habitual, unconscious, or
calculated attempt to enable a favored group to secure the exploitative gains
or benefits that might follow from a withdrawal of such protection. Such
scapegoating is inimical to the system of rights that is at the heart of our
rule of law. Indeed, it is no exaggeration to say that the core meaning of the
rule of law is precisely that scapegoating - whether for noble or ignoble
reasons and whether prompted by state or private calculations of benefit and
loss - is paradigmatically illegal. As citizens of a society governed by the
rule of law, we should not deny to any individual or group of individuals the
state's protection against private violence in situations in which that
violence is intended to secure benefits to - [*1895] or even the survival of
- the favored. All individuals have the right to be protected against violence,
including violence that is premised upon the moral calculation that the
sacrifice will save more lives than it will take.
It is thus apparent that the defendants' actions in this case are not merely
within the scope of the rule of law, as defined by its purpose, but rather, are
at the very heart of it. There are indeed different degrees of moral
culpability in the motives that prompt different murders. Some such motives are
more or less reprehensible than others. But from the perspective of the virtues
and values central to the ideal of the rule of law, the defendants'
jurisprudential and jurisdictional challenge only raises differences in degrees
of moral culpability that are ultimately inconsequential: the violation of the
individual's right to equal respect and regard, and accordingly his right to
equal protection of the law, is not lessened by the strength of the
justification for the killing. That he cannot be so sacrificed is precisely
what it means to have a right: a right, virtually by definition, cannot be
outweighed by individual or group-based calculations of moral or economic gain,
even when the gain is measurable in lives saved. The right to equal protection
of the law against private violence is violated when the state allows,
promotes, or acquiesces in such calculations, and does nothing to prevent or
deter the violence to which it leads.
This conclusion, it may be necessary to add, is not undercut by the victim's
ambivalence regarding his own participation in the scheme that eventually took
his life. Even had the victim's participation been consistently voluntary and
enthusiastic, the killing would nevertheless have been a murder for the reasons
given above. Our well established prescriptions against assisted suicide,
suicide pacts, and mutual contracts of self-destruction make clear that our
fundamental right to the state's protection against the assaultive conduct of
others takes priority over schemes that waive that protection, even with our
full consent. The facts here, however, do not even present us with the
admittedly more difficult question of whether the ban on assisted suicide can
be reconciled with our strong traditions of individual autonomy. The victim in
this case initially was supportive of the plan and did concede the fairness of
the procedures governing the throwing of the dice. Nevertheless, the victim
clearly withdrew his support from the overall plan. This is not, then, a
question of assisted suicide. There was no suicide. This victim was killed
against his will and without his consent.
The defendants' second argument is more modest, but if accepted, would also
challenge some of our most defining legal ideals. The defendants argue that the
recognized excuse of self-defense should be extended to include all killings in
which the victim, if dead, could supply biological matter that could
potentially save the defendant's life - rather than confine the defense, as we
presently do, to those killings in which the victim himself aggresses against
the perpetrator. But this [*1896] we cannot do without inviting a lethal
social chaos. Private violence, or even private ordering, cannot be given full
sway whenever there are conditions of relative scarcity, rather than the
conditions of abundance we have become accustomed to enjoying. To do so invites
a slide to state-of-nature conditions, precisely when the need for law is
Contrary to the defendants' representations, we do not already accept such a
limit on the criminal sanction, nor are the conditions or circumstances that
might give rise to such a claim quite so rare or infrequent as the defendants
suggest. For example, there are currently a sizable number of citizens in this
country awaiting organ donations, bone marrow replacements, and blood
transfusions. The profound scarcity of such organs, bone marrow, and
non-contaminated rare blood types is the sad reality that all such patients (as
well as those of us who may at any point become such a patient) are forced to
endure. That scarcity prompts incomparable anguish among the needy donees, and
tortured decisions by medical personnel. Clearly, some percentage of the total
number of hopeful donees could conceivably identify potential donors whose
organs, marrow, or blood might save their lives. If three, four, or five of
those individuals could, in turn, identify the same potential donor - someone
with the healthy liver, the matching bone marrow, or the requisite rare blood
type - what is to prevent them, under the principle urged by the defendants
here, from taking those organs by force, even at the cost of the donor's life?
If we do not allow and should not allow such pillaging of another's organs in
this not so fanciful scenario, why should we allow it here? The objective need
for some body part is the same, whether the need is for the marrow within the
bone or the flesh on the outside of it. The moral calculation is the same and
comparably motivated: if one life is sacrificed, then a greater number will be
saved. One could even imagine the killing in the medical transplant case being
preceded by agreement, which was later withdrawn by the victim-donee, as was
the case here. In both cases, nothing can excuse the subsequent murder. The
broader principle, governing both the speluncean and the organ transfer cases,
is simply this: that perpetrators require a part of a victim's body for the
perpetrators' own survival does not make the killing that is so motivated one
of "self-defense." No act of aggression is being defended. Rather, there is
only a tragic dilemma of incompatible needs and scarce resources.
Nor is this action justified by the related doctrine of "moral necessity." The
invasive, assaultive taking of the life or body parts of one individual is
never "morally necessary," even if such body parts may be necessary to secure a
greater number of lives of those in need. Even such an innocent creature as a
full-term fetus, or, as some believe, an unborn child, is not permitted to
pillage the bodily fluids and organs of the mother when the fetus's actions,
although utterly involuntary, threaten the mother's life. The pregnant woman is
not expected to [*1897] sacrifice her life to promote the well-being of the
fetus inside her who needs her body when that need is at the expense of her own
life and the sacrifice is against her desires. Rather, it is in precisely these
circumstances (and perhaps only in these circumstances) in the contested and
difficult area of reproduction law that we have achieved a sort of societal
consensus that the mother (not the fetus) has the right to defend herself
against the needy and life-threatening fetus within her by expelling the fetus,
even at the cost of the fetus's life.
This consensus is not surprising: surely if a born child - for example, an
adult - who needed a parent's bone marrow, attempted to secure it from a
non-consenting parent, the state would presumably help protect that parent
against the child's aggression; the state would not grant the "moral necessity"
of the child's action. Nothing here distinguishes the sacrificed speluncean
from the pregnant woman whose life is threatened by the needs of the invasive
fetus, or from the parent whose life is threatened by the child; indeed, the
lack of a parent-child or mother-fetal relationship from which one might
arguably infer a duty on the part of the parent or pregnant woman makes the
spelunceans' predicament a much weaker case. In all three cases, the
sacrificial life is biologically necessary for the aggressor's survival, but in
none of them does that fact make the killing (or the letting die, in the case
of the pregnant woman) morally necessary. The defendants' actions in the cave,
in short, were neither taken in self-defense against unwarranted aggression,
nor were they morally necessary. The killing was not justified.
Having rejected the defendants' contentions, it is nevertheless clear to me
that these men should not be executed and that to carry out the executions
would constitute an injustice - indeed, a killing perhaps as unjustified,
ultimately, as the one they committed. The action they took was criminal, and
the crime was murder. But does it follow that the punishment must be death by
hanging? These defendants have not been given a chance to show this Court -
either the jury or the justices - that their actions, although not justified,
might be partially or totally excused by the harshness of their circumstances,
or alternatively, that the harshness of the penalty applied should be mitigated
by a judicial recognition of the extraordinary conditions of hardship under
which they struggled. Nor has this Court - again either jury or judge - been
permitted to make such a determination. We have not heard the mitigating
evidence - whether about the men themselves, their character, the conditions in
the cave, the altered states of consciousness those conditions might have
brought on, or the feel or the force of the natural imperative of survival to
which they eventually acquiesced. This evidence might prompt the Court to
recognize the [*1898] unique horror that gripped these defendants and
consequently impose a penalty that might be less severe than death for the
all-too-human actions they took in response to that horror. But such an
exploration - and possibly a recognition - seems to be precisely what this case
requires for its just resolution. These men were in desperate circumstances and
took desperate measures to survive. It is not obvious that any of us would have
responded differently. Even though their action was a criminal homicide, it
does not follow that the punishment of death is warranted.
These defendants are no threat to the survival of the state or the safety of
the community. They have already suffered tremendously. Although not so unique
as to remove them from the jurisdiction of our courts, their situation was
surely peculiar - so much so that their execution would provide little in the
way of general deterrence. Why kill them? Can it really be true that justice
requires such a harsh conclusion, without even a hearing of facts or argument
that might mitigate it?
Our criminal law, as presently constituted in 4300 A.D., seems to require as
much. The judge and jury, according to theory, apply the law to the facts
toward the end of justice; the Chief Executive, pursuing radically inapposite
principles of mercy, can mitigate the punishment by reference to all that the
Court, in its pursuit of justice, cannot hear: the stories of these defendants'
lives, of their travails, of the pressures upon them, of their remorse, and of
their fears and hopes for their future. But this bifurcation of justice and
mercy, of "law" and mitigation, of the Court's province and the Chief
Executive's office - so reminiscent of the antiquated split between law and
equity, long ago abandoned in our civil jurisprudence - serves no one well. It
forces defendants to make specious arguments. It forces the Court to make
formalistic conclusions, and it tempts judges to make decisions for unstated
reasons - an unstated hope, prayer, or expectation that the Chief Executive
will or will not act in a certain way; an unsound argument accepted in defense
of an action, when it is, in fact, a judge's imagined full accounting of the
events in question that constitutes the real grounds of decision. The statute
that seemingly requires this woodenness is classically and flagrantly
overinclusive: it includes within its sweep acts and defendants whose
differentiating circumstances are such that they ought to be treated
differently. It also forces the ultimate decision of life or death upon an
elected official who may or may not have the requisite popular support, and
thereby the political power, to forego executions, even should he think it the
morally right course of action. The statute puts the lives of these defendants
at the dubious "mercy" of an elected official whose own political survival is
beholden to the whims of majoritarian politics. In short, it makes our law
unmerciful and the Executive's mercy lawless. The quality of [*1899] our law
and the quality of the Executive's mercy both suffer when we pretend that
justice and mercy can be severed.
For these reasons, I hold that the provision of the murder statute that
requires death by hanging as the punishment for the intentional taking of
another human life, without any possibility for the judicial mitigation of the
punishment, is an unconstitutional deprivation of the defendants' right not to
have their lives taken from them without due process of law, and a deprivation
of their right to a rational application of law. Just as the victim of criminal
violence has a fundamental right to the protection of law, the charged
defendant in a criminal case has a right to an individualized determination of
an appropriate punishment that reflects the degree of his culpability. In a
rights-based system of law such as ours, we can no more neglect a defendant's
right to be individually judged than a victim's right to be included in the
community and under the law's protection. The choices that the unconstitutional
provision now presents us - a judicial finding of guilt, followed by execution;
a judicial finding of guilt followed by an Executive's decision to decrease the
punishment to six months; or an acquittal on dubious grounds - are too stark.
The statute prevents the Court from pursuing merciful justice, and it deprives
the defendants of precious constitutional rights. These defendants should be
given the opportunity to present their own story in their own defense and in
mitigation of the punishment for their criminal action, and this Court should
be given the opportunity to so decide. We need to hold a hearing to determine
the appropriate sentence. Accordingly, the provision of the statute that denies
such an opportunity should be struck, to allow this case to proceed to a fully
merciful - and hence more just - resolution.
DE BUNKER, J. *
This case raises disturbing questions about the continuing influence of such
anachronistic concepts as "natural law," "inalienable rights," and other legal
fictions of ages past. We have yet to reject these irrational residues of the
past even in the present fifth millennium (a system of dating which itself is
based on what we now recognize to be a religious myth).
As is well known from the history disks, shortly after the beginning of the
third millennium, the world became engulfed in religious warfare among
fundamentalist Christians, Muslims, Jews, and others. Apocalyptic religious
extremists obtained access to weapons of mass [*1900] destruction. The result
was the cataclysmic decimation of human life in the name of the various "gods"
under whose symbols - crosses, crescents, and stars - the slaughters were
implemented. The survivors of this apocalypse began to realize that the
religious myths surrounding such deities as "the Holy Spirit," "Allah," and
"Jehovah" were indistinguishable from those that had surrounded the gods of
ancient Egypt, Greece, and Rome. Gradually, a new consensus emerged, at first
questioning the existence of any supernatural god (the Agnostic Epoch or AGEP),
and then, in the current age, disclaiming any such belief in deities (the
Atheistic Epoch or ATEP). n1 Just as the Christian, Muslim, and Jewish
primitives of the first and second millennia regarded the Greek and Roman myths
of divinity, so too, our enlightened age regards the myths of the so-called
monotheistic religions - myths such as the divine origin of the Bible, the
divine paternity of Jesus, and the claim that Mohammed was a messenger of God.
n2 We appreciate the poetry and occasional insights of the Bible and the often
wonderful teachings of the so-called Hebrew prophets, Jesus, and Mohammed -
much as the monotheists of the first and second millennia appreciated the
religious art and literature of their polytheistic forebears - but we now know
for certain that they are entirely of human origin.
We know, too, that the world has no "purpose," at least as imposed by some
external superior force. Human beings are the product of es [*1901] sentially
random processes, such as evolution, genetic mutations, or other largely
We have long understood these self-evident truths, and we apply them to most
areas of our lives, such as science, education, and literature. But when it
comes to law, we have stubbornly resisted the necessary process of rooting out
of our current legal system the anachronistic remnants of the divine
mythologies of our past. We persist in speaking about "natural law," as if the
physical "laws" of nature carried with them any normative corollaries. We
continue to invoke "inalienable rights," as if we believed that they derived
from some preexisting, supernatural, non-human source.
Because this case raises questions that challenge the very basis of our laws, I
see it as an appropriate vehicle for considering the meaning of such concepts
as "natural law" and "inalienable rights" in a world free of superstitions
about divine beings, supernatural forces, and purposive creation.
I am convinced that in such a world - in our world - there can be no such
meaningful concepts as natural law or inalienable rights. Natural law
presupposes a view of nature - of the nature of human beings and of the world -
that is demonstrably false. The nature of human beings is so diverse - ranging
from the most amoral and predatory to the most moral and self-sacrificing -
that all or no normative conclusions can be drawn from its descriptive
diversity. n3 Inalienable rights presuppose an externally imposed hierarchy
that makes no sense in the absence of an external law-giver. We must now ac
[*1902] knowledge that all law must be positive law and all rights must merely
be strongly held preferences that we or our predecessors have agreed to elevate
over other positive law. This elevated status of particular laws - such as the
guarantee of free speech - can be the result of a constitution (written or
oral), an entrenched tradition, or another form of super-positive law. It
cannot come from any claim of supernatural or natural forces external to the
human processes of lawmaking. Thus, the only basis for preferring one set of
laws or rights over another is human persuasion and advocacy.
In this opinion, I will try to persuade others to accept my approach, not by
reference to some natural or supernatural authority, but rather exclusively by
reference to human reason and agreed-upon principles. These principles may take
the form of preferred imperatives, such as those proposed by ancient
philosophers including Immanuel Kant, or they may take the form of preferred
situational rules, such as those proposed by Jeremy Bentham and others. But
they are all merely human preferences, even if often articulated in the
language of natural law and inalienable rights. n4
How then should a supreme court, unencumbered by concepts of natural law or
inalienable rights, evaluate the actions that form the basis of this case?
First, some preliminary observations are necessary: a civilized society could
reasonably legislate either result advocated by my judicial colleagues. The
legislature could have, if it had anticipated the current problem, written a
clear, positive law explicitly prohibiting starving people from killing one of
their number in order to save the rest. The arguments in favor of and in
opposition to such a rule are fairly obvious and have been made over the ages.
n5 Yet our legislature has never explicitly resolved this millennia-old debate
by enacting legislation either prohibiting or permitting such life-saving
killings. My preference in this situation is for the following rule of law:
when a tragic choice is sufficiently recurring so that it can be anticipated,
and when reasonable people over time have disagreed over whether a given choice
should be permissible, the onus must be on the legislature to prohibit that
choice by the enactment of positive law if it wishes to do so.
For those who argue that such a positive law would be ineffective because it is
against the self-preservatory nature of human beings, there is a simple answer:
legislate creative punishments that will be ef [*1903] fective. Such
punishments might include posthumous shame, n6 deprivation of inheritance
rights for offspring, or enhanced painful punishments for survivors. The point
is that this is largely an empirical, rather than a moral, objection to
prohibiting the eating of one starving human to save others. n7
A civilized society could also legislate a positive law permitting (even
requiring) the sacrifice of one starving innocent person to save several
others. The arguments in support of such a law are also obvious and long
standing. As Oliver Wendall Holmes reportedly wrote, "All society has rested on
the death of men and must rest on that or on the prevention of the lives of a
good many." Objections, such as the slippery slope, are also commonplace.
The point is that neither approach is more "natural" than the other. Nor can
the case be resolved by reference to any inalienable right, such as the "right
to life." Both approaches claim to be natural and to further the right to life.
Both also have considerable moral and empirical advantages and disadvantages,
and no one in our society is inherently better suited to choose one over the
other than anyone else. n8 Yet a choice must be made. Accordingly, we move the
argument from the level of substance to the level of process: who shall be
authorized to make such decisions, on what bases shall they be made, and if
there are gaps in the primary decisionmaking, who shall be authorized to fill
the gaps in particular cases? These issues must also be matters of preference
The problem presented by this case has existed since the beginning of recorded
history. There are examples - at differing levels of abstraction - in numerous
works of history, religion, and literature. Why then did the representative
body that was authorized to enact general laws not specifically address this
recurring issue? To be sure, the issue does not occur with the frequency of
self-defense, but it is widely enough known to be capable of specific inclusion
in any modern code governing homicide. Indeed, one of the most ancient of legal
[*1904] codes - the Talmud - did include specific discussions of this and
related questions. n9 Philosophers and legal scholars have also considered
these issues over the years. Yet few, if any, criminal codes explicitly tell
starving cave explorers, sailors, or space travelers what they may, should, or
must do if they find themselves in the unenviable position in which these
defendants found themselves. It is to be noted that this case is not unlike one
that occurred in the ninth century of the second millennium in a nation then
known as Great Britain. See Regina v. Dudley and Stephens, 14 Q.B.D. 273
(1884). Yet even after the divided court in that case expressed considerable
difficulty in arriving at a principled decision based upon those facts, the
legislature did not enact a positive law to resolve the issue definitively. Nor
can the legislature's silence in the face of the nominal affirmance of that
conviction be deemed evidence of its intent to demand conviction in this case.
The vast majority of comparable cases - both before and after that decision -
resulted in acquittal or decisions not to prosecute, and the English case
produced a pardon. The law is more than the isolated decisions of a small
number of appellate courts.
What does this long history of legislative abdication of responsibility tell us
about how we, a court, should resolve this case? It tells us that the people do
not seem to want this issue resolved in the abstract by legislation. Our
elected representatives apparently prefer not to legislate general approval or
disapproval of the course of action undertaken by the defendants here. Our
citizens cannot bring themselves to say that eating one's neighbor in the
tragic situation presented here is morally just. Nor can they bring themselves
to say it is unjust. They would prefer to leave the decision, as an initial
matter, to the people in the cave (at least as long as they make it on some
rational and fair basis). Then they would have a prosecutor decide whether to
prosecute, a jury whether to convict, a court whether to affirm, and an
executive whether to pardon or commute. That is the unwieldy process, composed
of layers of decisionmakers, they seem to have chosen.
The question still remains: by what criteria should we, the Supreme Court,
decide whether to affirm the jury's conviction (and recommendation for
clemency)? The answer seems relatively obvious to me, and [*1905] I will try
to persuade others to agree with the preferences on which it is based. I begin
with my strong preference - a preference which I believe and hope is now widely
shared - for a society in which any act that is not specifically prohibited is
implicitly permitted, rather than for a society in which any act that is not
specifically permitted is implicitly prohibited. As Johann Christoph Friedrich
von Schiller similarly expressed, "Whatever is not forbidden is permitted." n10
The lessons of history have demonstrated why the former is to be preferred over
A general preference for freedom of action in the absence of specific
prohibition does, however, raise some troubling problems. Innovative harm-doers
often find ways to do mischief between the interstices of positive law, and old
laws have difficulty keeping up with new technologies. Accordingly, this
preference occasionally results in the failure to punish the initial group of
creative criminals in any particular genre. Still, I would argue for a strong
presumption in favor of freedom in the absence of a specific prohibition - even
at the cost of letting some guilty go free.
In any event, the problem outlined above does not describe the situation we
face. The actions committed by these defendants were not part of some
technological innovation unknowable to the drafters of our positive law. Our
drafters could easily have legislated against what the defendants did here.
They did not. Why they did not - laziness, thoughtlessness, cowardice,
superstition, or an unwillingness to resolve an intractable moral dilemma - is
in the realm of speculation. That they did not is not fairly open to doubt.
Some may argue, of course, that the general prohibition against willful killing
is enough to cover the conduct at issue here because this killing was willful.
n11 But I do not believe that it can be reasonably maintained that the absence
of an explicit exception to the broad prohibition against killing contained in
the positive law must be interpreted as an implicit prohibition against the
kind of killing done here. That mode of reasoning would substantially
compromise the principle that what is not specifically prohibited is implicitly
permitted, especially in the context of a widely reported and debated
historical genre of alleged crime such as the killing under consideration here.
Moreover, the law has long recognized justifications for taking actions
expressly prohibited by the letter of the law when such actions are "necessary"
to prevent a "greater harm." This principle has been [*1906] summarized by the
quip, "Necessity knows no law." n12 It is a mischaracterization, however,
because there is a well-developed, if imprecise, law of necessity that permits
the choice of a lesser harm to prevent a greater harm. n13 Throughout history,
philosophers and jurists have debated cases - both hypothetical and real - that
tested this difficult principle. During the Nazi holocaust of the second
millennium, a group of Jews who were hiding from Nazi killers smothered a
crying baby in order to prevent the Nazis from discovering their hiding places
and killing them all. When that terrible dilemma - which occurred in slightly
differing contexts throughout the holocaust - was presented to distinguished
religious leaders, the consensus was that the conduct could not be condemned.
See Marilyn Finkelman, Self-defense and Defense of Others in Jewish Law: The
Rodef Defense, 33 Wayne L. Rev. 1257, 1278-80 (1987). Nor do I believe that a
secular court would have found these desperate people guilty of murder even if
they willfully, deliberately, and with premeditation killed the innocent baby.
Necessity as a general defense to crime "seems clearly to have standing as a
common law defense." n15 Model Penal Code 3.02 commentary at 10 (1962). Nearly
all jurisdictions recognize the necessity [*1907] defense for crimes that are
short of killing. n16 Thus, if our defendants had found a locked food-storage
box in the cave with a sign saying "private, personal property, do not open
under any circumstances," and they had broken open the lock and eaten the food,
no one would deny they were acting lawfully. I doubt that any of my colleagues
would convict such defendants of theft even if the words of the theft statute
provided for no exception. The general law of necessity provides the requisite
exception in cases in which theft is a lesser evil than multiple deaths.
However, some jurisdictions have explicitly refused to extend the necessity
defense to the killing of an innocent person that is necessary to prevent the
deaths of several innocent people. n17 Other jurisdictions have not limited the
necessity defense to non-killings. n18 Academic opinion is divided, and the
weight of the American Law Institute is on the side of not limiting the defense
as long as the killing is necessary and results in the saving of more innocent
lives than are taken. "The principle of necessity is one of general validity
... It would be particularly unfortunate to exclude homicidal conduct from the
scope of the defense." n19 Model Penal Code 3.02 commentary at [*1908] 14.
The reason that judicial decisions about this issue are "rare," see id. at 10,
is that prosecutors almost never bring charges against people who have chosen
the lesser evil of taking one life to save many others.
Our jurisdiction has not resolved this debate or even confronted this issue.
Our own common law of necessity is thus written in terms as general as our
murder statute: "Anyone who commits an act that would otherwise be a crime
under circumstances in which it is necessary to prevent a greater evil shall
not be guilty." The issue before us, therefore, is whether the legislative
silence should be interpreted as acceptance or rejection of the limitation
adopted by some jurisdictions and rejected by others. Compounding the
complexity of the problem is the fact that in the absence of legislative
resolution, these defendants sought authoritative guidance from various sources
before deciding what to do - the best they could do under the circumstances.
They were denied any such guidance. To hold them criminally liable is to
convict them of guessing wrongly regarding what the unpredictable vote of this
Court would be. Moreover, to convict them under these circumstances -
especially in the face of our legislature's refusal to resolve the debate over
the limits of the necessity defense - would be to prefer a rule of judicial
interpretation that resolves doubts in favor of expanding the criminal law
rather than of resolving "ambiguity concerning the ambit of criminal statutes
... in favor of lenity." United States v. Bass, 404 U.S. 336, 347 (1971)
(quoting Rewis v. United States, 401 U.S. 808, 812 (1971)) (internal quotation
marks omitted). n20 The same rule of lenity must apply, as well, in construing
the common law of crime. See Bouie v. City of Columbia, 378 U.S. 347, 352-54
(1964). Where does our Supreme Court get the authority to narrow the law of
necessity and thereby to make criminal what the legislature has declined
explicitly to proscribe? My brothers and sisters do not answer this question.
[*1909] Of course, if the legislature had explicitly considered the "choice
of evils" presented by the case and expressly foreclosed the action taken, the
necessity defense would not be available. But as I have shown, our legislature
has not explicitly spoken to this specific problem, despite its prominent place
in legal and philosophical discourse. n21 Accordingly, applying the salutary
rule placing the onus on the legislature to prohibit questionable conduct by
specific, targeted language, it follows that these defendants may not lawfully
III. The Views of My Colleagues
Several of my colleagues point to the plain language of the statute, while
acknowledging that there must be exceptions, such as self-defense and
executions, that are recognized from time to time at common law. But necessity
also has been recognized from time to time, and there has been a great debate
over the millennia regarding whether necessity can excuse a killing done to
prevent greater harm, such as multiple deaths. Renowned authorities have come
down on different sides of this debate, and our legislature has refused to
resolve it explicitly. It is in this context that the words included in, and
omitted from, the statute must be interpreted. That process can be undertaken
in different ways.
[*1910] One of my colleagues, Justice Kozinski, proposes an absolute rule of
inclusion: unless there is an express exception, the literal words of the
statute must apply, regardless of how absurd the result may appear to us. See
supra, at 1876 (Kozinski, J.). Taken to its logical conclusion, this rule would
punish the proper use of deadly force by policemen because the statute does not
explicitly exclude such killings.
It is important to recognize that the legislation at issue here is an example
of a "common law statute," prohibiting a general category of conduct - in this
instance, willful killing - in the broadest of terms, while anticipating
judicial narrowing. It cannot rationally be argued that the legislature
intended the judiciary to recognize certain exceptions, such as self-defense,
while precluding it from recognizing other defenses, such as necessity, that
are accepted by numerous jurisdictions. Once it is agreed that this Court has
the power to decide whether the defense of necessity is part of our law, it
surely must follow that it has the power to define its parameters. It is
plainly preferable to leave such decisions to the reasoned judgment of
disinterested courts than to the unarticulated discretion of adversarial
I am not suggesting that every possible category of crime be specifically
mentioned in the statute, but rather that widely recognized defenses, such as
necessity, cannot be deemed to have been abrogated by legislative silence,
especially when the statute seems to invite inclusion of some recognized
defenses that are not explicitly mentioned.
Another of my colleagues, Justice Sunstein, proposes an "absurdity exception"
to the otherwise absolute rule of plain meaning. See supra, at 1883-84
(Sunstein, J.). This would permit prosecution in the following case: A train
loses its brakes and heads in the direction of a fork. If the conductor does
nothing, the train will hit a school bus full of children. If he takes the
fork, it will hit a drunk sleeping on the track. There is no third alternative.
He takes the fork, thus killing the drunk. Convicting him would be wrong
because his beneficent purpose was to save lives, but it would not be "absurd"
because he intended to kill the drunk. n23 Yet another of my colleagues tells
us that all statutes must be interpreted by reference to a "right" whose source
is nowhere identified, namely that "all individuals have the right to be
protected against violence, including violence that is premised upon the moral
calculation that the sacrifice will save more lives than it will take." Supra,
at 1895 (West, J.). This rule would permit prosecution not only of the train
conductor, but also of the hiding Jews who killed [*1911] the baby in order
to prevent their apprehension and murder by the Nazis. Would my colleagues
really support their preferred rules in the face of these testing cases?
Justice West also poses a provocative hypothetical case, which should be
troubling to any thoughtful judge or legislator. She asks whether a reversal of
this conviction would require the conclusion that a group of people in need of
organs to live may properly kill one person in order to harvest his organs so
that all in the group might live. See id. at 1896. It is a good question. One
must begin with the conclusion that any general rule of law that would
routinely permit the killing of a human being for his organs is a rule of law
that should not be accepted by a civilized society. That certainly would be my
strong preference. Our case can be distinguished from this one on several
grounds. First, there is a universal consensus that killing for organs should
be deemed unacceptable. I am aware of no dissent to this proposition in all of
jurisprudence, philosophy, or even ancient religion. n24 There is considerable
disagreement, however, concerning the speluncean case and its sister case
involving the crying baby during the Nazi Holocaust. This difference in the
level of agreement alone may distinguish the speluncean case from the organ
case, though the reasons underlying it may bolster the difference in outcome. A
second distinction between the organ donor case and this case is that in this
case the victim would have died within days even if the defendants had not
killed him. In the organ donor case, the murdered organ donee could have lived
out his life. Thus, the issue in the instant case is not whether the victim
would have died, but only whether he was to die at the time he was killed so
that others could live or whether he would die a few days later in which case
no one would have lived. Quite a difference! Third, among the most powerful
reasons why we universally reject killing to harvest organs is that organ
shortages are a widespread and continuing problem, as Justice West
acknowledges. n25 See id. Were we to approve the killing of a potential organ
donor, no one would be safe. Everyone with a healthy life-saving organ would be
placed at risk by such a rule. The situation is quite different with our
explorers or the crying baby. Although these rare situations recur throughout
history, they are unlikely to be experienced more than once [*1912] in a long
period of time. Whatever we decide in these unusual cases will have little or
no impact on the future actions of the infinitesimally tiny number of people
who may find themselves in the unexpected situation faced by our explorers or
the Jews hiding from the Nazis. These are sui generis cases, about which, in
the absence of explicit legislative resolution, we can afford to provide pure
retrospective justice, without fear of establishing a dangerous precedent. To
be sure, every case contributes to the corpus of precedents, and if the
legislature disapproves of our decision, it may announce a rule of law that
forbids killing in these situations. The reason the legislature has not
explicitly done so for organ-donor killing, is that no one has ever tried - or,
likely, would ever try - to raise a defense of necessity in such circumstances.
Such a result would be "absurd," to paraphrase another of my colleagues, and
legislators need not explicitly reject every "absurd" defense, especially when
no one has ever tried to use it. The defense raised in our case, however, is
not absurd and it has been raised and even accepted. See Kadish & Schulhofer,
supra, at 877-78. These are the differences. Does Judge West believe that
smothering the crying baby and killing the person for his organs are really the
same case? If not, is not the instant case closer to the former than to the
I believe that those who would punish the conduct at issue here have the burden
of acting to prohibit it explicitly and provide for the appropriate punishment.
n26 That burden has not been satisfied by the inaction here.
Accordingly, I conclude that the principles expressed above require the
conclusion that the killing committed by the defendants in this case cannot be
deemed unlawful. The people in the cave could not look to the law for guidance.
The statute was not explicit. The precedents cut both ways. They made every
reasonable effort to obtain advance guidance from authoritative sources. In the
end they had to decide for themselves. They did the best they could under the
circumstances, selecting a process which was rational and fair. The end result
was a net saving of lives. I cannot find it in my heart - and, more important,
I cannot find it in the law - to condemn what they did. If there is
disagreement with the preferences stated herein or with the conclusions derived
therefrom, let the debate begin. I have [*1913] an open mind, untrammeled by
the "natural" and "supernatural" myths of the past.
Easterbrook, J. * "Whoever shall willfully take the life of another shall be
punished by death." N. C. S. A. (n. s.) 12-A. Defendants killed and ate Roger
Whetmore; they did this willfully (and with premeditation, too). Were the
language of the statute the end of matters, the right judgment would be
straightforward, as Justices Keen and Kozinski conclude. See supra, at 1864
(Keen, J.); supra, at 1876 (Kozinski, J.). Then when the hangman had finished
implementing the judgment, he too would be doomed, for the executioner takes
life willfully; likewise we would condemn to death the police officer who shot
and killed a terrorist just about to hurl a bomb into a crowd. Yet throughout
the history of Newgarth such officers have been treated as heroes, not as
murderers - and not just because the Executive declines to prosecute.
Language takes meaning from its linguistic context, but historical and
governmental contexts also matter. Recall the text: "Whoever shall willfully
take the life of another shall be punished by death." "Willfully take the life
of another," not "be convicted of willfully taking the life of another." Yet
the latter reading is one that all would adopt: in our political system guilt
is determined in court, not by the arresting officer or the mob. The statute is
addressed in part to would-be killers and in part to judges, who in
adjudicating a charge apply the complex rules of evidence that may make it
impossible to prove beyond a reasonable doubt the guilt of someone who actually
committed a murder. No one believes that N. C. S. A. (n. s.) 12-A overrides the
rules of evidence, the elevated burden of persuasion, the jury, and other
elements of the legal system that influence whether a person who committed a
killing will be adjudicated a murderer. Like other criminal statutes, N. C. S.
A. (n. s.) 12-A calls for decision according to the legal system's accepted
procedures, evidentiary rules, burdens of persuasion - and defenses.
For thousands of years, and in many jurisdictions, criminal statutes have been
understood to operate only when the acts were unjustified. The agent who kills
a would-be assassin of the Chief Executive is justified, though the killing be
willful; so too with the person who kills to save his own life. Only the latter
is self-defense; the case of the agent shows that self-defense is just one
member of a larger set of justifications. All three branches of government
historically have been entitled to assess claims of justification - the
legislature by specifying the [*1914] prohibition and allowing exceptions, the
executive by declining to prosecute (or by pardon after conviction), and the
judiciary by developing defenses. As a result, criminal punishment is meted out
only when all three branches (plus a jury representing private citizens) concur
that public force may be used against the individual. The legislature might
curtail the role of the judiciary by enacting a closed list of defenses to
criminal charges, but it has not done so. New statutes fit into the normal
operation of the legal system unless the political branches provide otherwise.
N. C. S. A. (n. s.) 12-A does not provide otherwise. Our legislature could
write a law as simple as N. C. S. A. (n. s.) 12-A precisely because it knew
that courts entertain claims of justification. The process is cooperative:
norms of interpretation and defense, like agreement on grammar and diction,
make it easier to legislate at the same time as they promote the statutory aim
of saving life. The terrorist example proves the point.
"Necessity" is the justification offered by our four defendants. After the
first landslide, all five explorers were in great peril, and the rescuers
outside the cave confirmed that all were likely to starve by the time help
came. The choice was stark: kill one deliberately to save four, or allow all
five to die. The death of one was a lesser evil than the death of five, and it
was therefore the path that the law of justification encouraged. Military
commanders throughout time have understood this equation and have sent squads
and platoons on missions from which they were not expected to return, so that a
greater number might be saved.
Like all of the lesser-evil justifications, necessity is openly utilitarian.
Self-defense may reflect uncertainty about the ability of the law to affect
conduct by those in imminent fear of death, as Justice Tatting supposes, see
supra, at 1862 (Tatting, J.) - though if this is so one wonders why the force
used must be the least necessary to defeat the aggression, a restriction that
makes sense only if the object of aggression is capable of rational thought and
susceptible to influence of legal subtleties. But other lines of justification
assume that the actor (our police officer, for example) is calculating and
alert. The question is: what shall the law lead him to include or exclude from
Allowing a defense of necessity creates a risk that people may act
precipitately, before the necessity is genuine. Thus if the law allows a
starving mountaineer to break into a remote cabin as a last resort to obtain
food - if, in other words, necessity is a defense to a charge of theft - it
creates a risk that wanderers will break doors whenever they become hungry,
even though starvation is far in the future. The parallel risk is that a hungry
and poor person surrounded by food may decide to bypass the market and help
himself to sustenance. These risks are addressed by the rule that the evil must
be imminent and the means, well, necessary; the departure from the legal norm
must be (as [*1915] with self-defense) the very least that will avert the
evil. United States v. Bailey, 444 U.S. 394 (1980), employs this understanding
to conclude that a prisoner under threat of (unlawful) torture by the guards
may defend against a charge of escape by asserting that the escape was
necessary to avert a greater evil, but the prisoner loses that defense if he
does not immediately surrender to a peace officer who will keep him in safe
Allowing a defense of necessity creates a second hazard: the very existence of
the defense invites extensions by analogy to situations in which criminal
liability should not be defeated. That risk is met by the rule that all lawful
or less hazardous options must first be exhausted. A prisoner must report his
fears to the warden before escaping; and if the warden does nothing, the
prisoner must escape rather than harm the guard. United States v. Haynes, 143
F.3d 1089 (7th Cir. 1998), which held that a prisoner who poured boiling oil
over his tormentor rather than trying to flee could not assert a defense of
necessity, illustrates this approach. The difference between the mountaineer
case, in which breaking into a cabin is permitted, and Commonwealth v. Valjean,
which held that a poor person may not steal a loaf of bread from a grocer, is
that the poor person could negotiate with the grocer, or get a job, or seek
public or private charity. A mountaineer who lacks other options to find food,
and cannot negotiate with the cabin's (missing) owner, may break into the cabin
because that is the last resource; theft is a lesser evil than death, though
not a lesser evil than working.
Negotiation, actual or potential, offers a good framework with which to assess
defenses based on utility. If a defense actually promotes public welfare, then
people who are not yet exposed to the peril would agree that the defense should
be entertained. Suppose the five speluncean explorers had stopped on the way
into the cave to discuss what to do in the event they became trapped. Doubtless
they would have undertaken to wait as long as possible for rescue; and it does
not stretch the imagination to think that they would have further agreed that
if starvation appeared before rescuers did, they would sacrifice one of their
number to save the rest. Each would prefer a one-fifth chance of death, if
calamity happened, to a certainty of death. Although they might find the
prospect so revolting that they would abandon their journey rather than reach
such an agreement, the alternative - entering the cave under a set of rules
that required all five to starve if any did - would be even worse in prospect.
We know that they did enter the cave, and did so under a legal regimen that
some members of this Court believe condemned all to starve; it follows that
they would have preferred an agreement in which each reduced that risk by
Hypothetical contracts are easy to devise; perhaps this accounts for endless
philosophical debate about how people negotiate behind a veil [*1916] of
ignorance. Judges should subject these speculations to a reality check. What do
actual contracts for risk-bearing provide? I refer not to agreements reached
after a disaster (such as the explorers' initial plan to cast dice on the
twenty-third day, a plan that Whetmore later abjured in favor of waiting some
more), but to agreements made before the fateful venture begins - agreements
that encompass all of the relevant options, including the option of avoiding
the risk altogether.
Before going underground, spelunkers, like their above-ground comrades the rock
climbers, agree to rope themselves together when scaling or descending walls
and chimneys. If one loses his grip, the rope may save a life by stopping the
fall - but the rope also creates a risk, for the falling climber may take the
others down with him. By agreeing to rope up, each member of the group exposes
himself to a chance of death because of someone else's error or misfortune. In
exchange he receives protection against his own errors or misfortunes. Each
accepts a risk of death to reduce the total risk the team faces, and thus his
portion of the aggregate risk. Each agrees, if only implicitly, that if one
person's fall threatens to bring all down, the rope may be cut and the others
saved. What happened in the cave after the landslide was functionally the same:
one was sacrificed that the others could live. That Whetmore turned out to be
that one is irrelevant; the case for criminal culpability would have been
equally strong (or weak) had any of the others been chosen. The explorers' ex
ante agreement did not cover the precise form that the risk would take, or the
precise way in which total loss would be curtailed, but it established the
principle of mutual protection by individual sacrifice. Securing the
reciprocity of advantage ex ante justifies the fatal outcome ex post for an
individual team member. Society should recognize this agreement, and the way in
which it promotes social welfare, through the vehicle of the necessity defense.
To reject the defense is to reject the agreement itself, and to increase future
To accept the necessity defense (that is, the risk-sharing agreement) in
principle is not necessarily to accept that a given death is within its scope.
Rock climbers who cut a dangling comrade's rope prematurely, without exhausting
the options to save all, commit murder. Cicero opined that if two sailors were
cast adrift on a plank adequate to support only one until rescue came, each
could try to be the survivor without criminal liability. But what if they were
mistaken, and the plank would support two for long enough? What if all five
explorers could have survived until rescue (on day thirty-two), or could have
found another exit by further exploration rather than encamping near the cave
mouth? Ancient mariners consented to the practice of survival cannibalism in
principle, but a broad defense of necessity would have led them to kill a
comrade too quickly. Reports were remarkably consistent in relating that the
youngest or most corpulent survivor drew the short straw. See A.W. Brian
Simpson, Cannibalism and the [*1917] Common Law 124, 131 (1984). To prevent a
lesser-evil defense from becoming a license to perpetrate evil, the necessity
must be powerful and imminent - again following the self-defense model. But the
prosecutor did not argue that the speluncean explorers should have looked for
another exit from the caverns, and the jury found that a committee of medical
experts had informed the men trapped in the cave that if they did not eat, then
there was "little possibility" of their survival until day thirty. The danger
that a necessity defense would lead people to magnify (in their own minds) the
risk they are facing, and to overreact, did not come to pass. On the facts the
jury found, all five very likely would have died had they passively awaited
rescue. They acted; four lived. Putting these four survivors to death would be
a gratuitous cruelty and mock Whetmore's sacrifice. The judgment of conviction
must be reversed.
STUPIDEST HOUSEMAID, J. *
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.
Supra, at 1858-59 (Foster, J.)
I. The Truth
"O'yeah, O'yeah, O'yeah." Now comes the "stupidest housemaid" to clean up the
mess the white folks have made. Of course the convictions should be reversed.
The stupidest housemaid don't know nothin' 'bout the rule of law. Of all the
pretty things she's seen in the Big House she ain't never run cross that. But
she knows what she thinks is right. That is the basis of her judgment. As it is
the basis of all the other judgments as well. The housemaid the onliest one
stupid enough to admit it. Maybe 'cause she got the least to lose.
They call these things opinions for a reason. In the stupidest housemaid's
opinion, the government should not stand a person on a platform, tie a rope
around his neck, and then kick the platform out from under him. And invite
guests to watch him vomit blood. In the first place, who but the stupidest
housemaid gone be left to scrub the blood out the city square? She good at
cleaning up white folks' ugly messes, but it hard work and it take a long time.
[*1918] Second, what the point? The government should kill people to prove
that killing people is wrong? It don't make no sense to the stupidest
housemaid. She know she sposed to separate the punishment from the crime but
she cain't. She shouldn't. And most importantly she don't have to. Because, for
once, she the judge! And so she won't. The conviction is reversed because the
stupidest housemaid think the death penalty is wrong. It so ordered.
But it ain't over. Doing day work in the courthouse the stupidest housemaid
watches the judges in their chambers. She know they reach they decisions
exactly the same way that she just did. They decide what result they want. Then
they "interpret" the law to get that outcome. They "opinion" ain't nothing but
a big fantasy to explain they climax. But the stupidest housemaid different:
she a squirrel that go right to the nut. So she gone tell the truth about her
decisionmaking process. She reverse the conviction cause she do not feel what
the defendants did was wrong. Maybe if she did she could "interpret" an excuse
for the government to break necks.
But she sposed to write an opinion! So maybe the stupidest housemaid try that
analysis foreplay and see if it get good to her. Her fantasies good as
anybody's. Look here.
II. The Analysis
First of all, the stupidest housemaid would like to thank God, without Whom
none of this would be possible. A "crime" is an expression of the moral
condemnation of the community, or at least the jury, or, at least in this case,
the judge. On her knees the stupidest housemaid prayed to God. God answered "I
find nothing to condemn. Haven't you read Exodus? I told Pharaoh to let my
people go. When he would not, I killed all the firstborn sons in the land. That
changed Pharaoh's mind right quick. So when I consider these spelunceans and
how they dealt with the obstacle they encountered on the way to their own
promised land, all I can say is you gotta do what you gotta do. If life is holy
- and it is - it is better that one person died rather than five."
Having determined no moral culpability in the defendants' actions, the
stupidest housemaid finds no practical reason to punish them either. Certainly
there is no justification from deterrence. People who believe that they are
going to die immediately will not be prevented from saving they own lives by
the threat of dying ultimately. The stupidest housemaid knows that if she found
herself in the position that the spelunceans encountered she would have grabbed
a butcher knife and commenced to stabbing with the quickness. Most anybody
would. In Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884), Lord Coleridge,
considering a similar case, voted for conviction saying, "We are often
compelled to set up standards we cannot reach ourselves, and [*1919] to lay
down rules which we could not ourselves satisfy." How very traditional, to
support a law with which one has no intention of complying. The stupidest
housemaid says "later for that bullshit."
The remaining justification of punishment - incapacitation - fails as well.
There is no need to incapacitate these men because hopefully they will have
more sense than to go poking around caves again without taking the appropriate
precautions. And if they do, they will assume the risk that they might meet the
same demise as their lost brother Whetmore. The stupidest housemaid knows that
the law cannot stop a billionaire from trying to fly around the world in a hot
air balloon. Rich men gone do what they want to do, regardless of the
consequences. And when they finally reach they goal, they gone be lauded as
Regardless of the losses. Were it up to her, the stupidest housemaid would
forbid the government from sending workmen to rescue any explorers who find
themselves lost due to their own folly. Here's a killing that would make a nice
prosecution. Her brothers were among the ten who died to rescue the four who
survived. And everybody having fits and conniptions about whether the four
explorers should be punished for the death of the fifth speluncean. Ain't
nobody uttering a damn word about whether the law should avenge the killing of
the workmen. Oh the government sent the families a plaque commemorating the
sacrifice of true and faithful servants. But the prosecutor explained the law
didn't fit right around the concept of crime and punishment for their deaths.
Seemed to the stupidest housemaid like the criminal law was made to protect the
spelunceans, not the workmen.
There was, hundreds of years ago, another justification of punishment:
rehabilitation. This justification died in the last part of the twentieth
century, in part because of the Negroes: they were difficult and expensive to
rehabilitate and it was pleasurable to punish them. Accordingly, there is no
need to consider here whether rehabilitation would be an appropriate reason to
punish the speluncean defendants because no jurisdiction, including Newgarth,
now recognizes rehabilitation as an appropriate justification.
All right, how they end it? What is the magical incantation you supposed to put
at the conclusion? Oh yeah, here it go: "For the foregoing reasons, the
convictions must be reversed."
III. The Whole Truth
Whee! That was fun! Habit forming, even. The stupidest housemaid start to like
the smell of her own shit. But for real, even her own words just a bunch of
sound and fury, signifying nothing. Leastways they do not signal a rule of law.
Because the stupidest housemaid knows that the rule of law is a myth, something
rich white folks made [*1920] up to keep everybody else from taking they
stuff. Poor and colored folks sposed to shut up when the law tells them they
cain't have what rich people have. They sposed to believe it ain't the rich
folks making up shit - it's the rule of law.
But the law can often be argued every which way but up. And when a judge
decides a hard case all he doing is choosing the argument he like the best. Or
sometimes choosing his own argument instead. If he chooses another result, that
would suit the law just as well. So in any case it ain't no "neutral"
decisionmaking. The judge chooses, not interprets, and he chooses based on the
result he wants. And the Supreme Court of Newgarth ain't never gone choose law
to favor the poor and colored folks - at least not to the point that the rich
white folks' richness and whiteness is threatened. They might, if they feeling
expansive, put a stupid housemaid on the Supreme Court. But rich white folks
gone handle they business. They gone protect their interests.
So that why it works out well for some people that there just ain't no rule of
law. But even if folks wanted to follow one rule to get justice in every case,
they couldn't. Laws made by human beings ain't that smart. Including the
Newgarth murder statute. The stupidest housemaid don't care what All Knowing
Bell Curve Topping white man thought them up, thirteen words ain't gone hold
the just answer to every case, and nobody can believe that they do. For
example, soon as the stupidest housemaid read the words, "Whoever shall
willfully take the life of another shall be punished by death," she think, "Oh
good. Now some of these trigger happy cops riding 'round shooting black and
Hispanic folks in the line of duty gone get they just deserts." Then come to
find out that ain't what the law means. The stupidest housemaid asks, "ain't
that what it say?" "Yeah," rule of law shout back, "but that ain't what it
Oh. So how you sposed to know what it mean? That old cracker Justice Foster say
even the stupidest housemaid know how to read between the lines. Sometimes Miss
Ann say fetch me B when she mean fetch me C. You bring her B, your ass gone get
whipped, and what Miss Ann actually said ain't gone make a damn bit of
difference. So old man Foster right about one thing: when you the servant on
the bottom, you better learn how to read the mind of the master on the top.
It's a survival skill. And knowing what the stupidest housemaid know, ain't one
police officer who kills in the line of duty ever gone be hanged by the
government, even though that what the law call for. 'Cause the law don't mean
what its words say it mean. It mean what the judge say it mean. And Hallelujah,
Stupidest Housemaid the judge right now!
She not the only judge, however. The stupidest housemaid ain't got too much to
say about the opinions of the other judges, 'cause, for real, they opinions
don't matter any more than hers. Onliest thing [*1921] that matters is they
votes. So what we got? Two judges say the government should break necks, and
four say the government should not, leastways not no speluncean necks. The
non-breakers of necks prevail.
It funny though - all these masters of the legal universe and they couldn't
agree on whether shit stinks. But they all write so pretty. They all persuade
the stupidest housemaid. They all right about the law. They all wrong about it
Justice Kozinski onliest one say follow the words of the statute, 'cause they
"clear." See supra, at 1876 (Kozinski, J.). Okay, so after he kill the
speluncean, he gone kill the executioner? He gone kill the police officer who
shoots in the line of duty? He gone kill the self-defender? 'Cause the law tell
him to? He imply he will, but the stupidest housewife say that's a damn lie.
Justice Sunstein say follow the law less the outcome so "peculiar and unjust"
it seem "absurd." Supra, at 1884 (Sunstein, J.). Just how you sposed to know
what is "peculiar" and "unjust" and "absurd" the good Justice don't directly
say. He do say if you kill a terrorist to save the "innocent" that's cool, but
if you kill a speluncean to save your ownself you go directly to jail. See id.
at 1885, 1888. Ok. But then he add if you kill a speluncean as part of a plan
that the speluncean agreed upon, then you don't go to jail. See id. at 1889.
Well he say you might not. He say that punishment in that case "conceivably"
would be absurd. See id. I guess it depend on what the judge decides. That's
cute, but what it got to do with the rule of law?
Justice West be making up stuff also. She go on and on 'bout the beauty of the
rule of law and how in this case it means those spelunceans should be
convicted. See supra, at 1893-95 (West, J.). Then she have the nerve to add,
"having rejected the defendants' contentions, it is nevertheless clear" to her
that the spelunceans should not be executed. Id. at 1897. She pick and choose
the parts of the rule of law she like. So to hang the defendants would be
"unjust." Apparently we ain't sposed to measure justice by what the legislature
decided - we sposed to have a hearing about "mercy." The stupidest housemaid
feels Justice West's pain, but sisterfriend, let's be real: you doing politics
and religion here, not law. So take a deep breath and put that rule of law
baggage down - it will set you free.
Justice Easterbrook done discovered some contract the speluncean made to share
risk. See supra, at 1916 (Easterbrook, J.). The stupidest housemaid looked all
over the Newgarth law books, but she ain't found no contract exception to the
murder law. Even so, Easterbrook say killing the spelunceans would be
"gratuitously cruel[ ]." Id. at 1917. So I guess he calling his boys Kozinski
and Sunstein - who voted to break the spelunceans' necks - "gratuitously
cruel." Ironic thing is Easterbrook is the main one claim to be applying
science to [*1922] reach his result. So it seem if Easterbrook gone talk
about his boys, he should call them stupid, not cruel. But he right. Kozinski
and Sunstein ain't dumb - they just mean. And when Easterbrook call them cruel,
he simply proves the stupidest housemaid's point and does what all the other
justices do: religion, not science. They use words like "absurd" and "unjust"
and "cruel" as an excuse to do as they damn well please.
The stupidest housemaid could trash her own opinion just as well. She claim she
totally opposed to the death penalty but then she cite God's offing the
Egyptians to prove that killing ain't necessarily wrong. She claim she don't
like the Newgarth punishment for murder, but she also say she tried to get it
applied to the people responsible for her brothers' deaths. Stupidest Housemaid
re-read her opinion and she think she out to lunch when she wrote that shit.
But at least she open about her purpose. She never claimed she was doing
anything but politics.
IV. Nothing But the Truth
So what it all mean? Two things about the law: it can be argued both ways in
hard cases; and, in the hands of rich white men, it can be a real bitch. Take
the Declaration of Independence and the Constitution of the United States.
You want to see a rebuke to the principle of rule of law, just look right
there. Declaration of Independence say "all men are created equal," The
Declaration of Independence para. 2 (U.S. 1776), and Constitution say bring in
all the niggers you want as slaves until 1808. Then stop and just breed them.
See U.S. Const. art. I, 9, cl. 1. Thomas Jefferson is writing about freedom and
liberty and fucking his slave and selling their children. There are schools
named after this man where they teach you about the rule of law. The Fourteenth
Amendment say every citizen has the right to equal protection of law, see U.S.
Const. amend. XIV, 1, and in McCleskey v. Kemp, 481 U.S. 279 (1987), the
Supreme Court say if some citizens receive the death penalty cause they black,
what the hell can we do? Shit happens. See id. at 314-19.
It scare the stupidest housemaid, but she can look at the Fourteenth Amendment
and read Plessy v. Ferguson, 163 U.S. 537 (1896), and think that opinion is
rightly decided. It seems correct. The rationale make sense. Hell, Chief
Justice Rehnquist said the same thing when he was a law clerk. But then to the
relief of the stupidest housemaid, the Brown v. Board of Education, 347 U.S.
483 (1954), opinion make sense too. It seems right also. So much for the rule
of law. And that scare her too.
Why? Because it is true that it would be useful for the rule of law to exist.
It may even be true that the servant needs a rule of law more [*1923] than the
master. But the stupidest housemaid knows that her needs and the way the world
works are two different things. As necessary as it might be, the rule of law
does not exist. Don't take it out on the stupidest housemaid. It ain't her
radical assault on truth, it's the truth itself. When Pythagoras announced that
the world is round, people fussed at him too. They said the world was easier to
navigate if it was flat.
The pitifulest thing is that the main ones believing in the rule of law are the
ones getting screwed by the myth of it the most. The stupidest housemaid finds
those jurors who surrendered their power to this Court might be just a little
more stupid than she. What this Court know any better than they? Why should its
"opinion" be more respected? If you on the bottom, and you get a little bit of
power, you ought to have more sense than to give it right back.
The stupidest housemaid laughs, considering how the chickens have come home to
roost. White folks been sacrificing the lives of people of color for centuries
- for the white folks' greater good. First they put them in ships and now they
put them in cages. Reservations. Detention Centers. Send them back to Mexico,
or the greedy killing fields. But when white folks sacrifice white lives for
the greater good, it's a big confusing problem.
n1. Unlike several of the writers of the opinions that follow, I cannot resist
the temptation to use footnotes (in moderation, of course). The purpose of this
footnote is to suggest to the reader that you may well prefer, as I do, to read
a foreword, if at all, only after you have read all that follows. This practice
not only tends to make the foreword more readable, but also eliminates any
chance that the views expressed in the foreword will affect your reactions to
what follows. Thus, you are in a better position to assess the merits and
defects of the foreword itself. But if you must, read on.
n2. Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of
Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953).
n3. Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616
(1949). The article is reproduced below, see infra, at 1851-75, and for ease of
reference, citations will be to the article as it appears in this issue.
n4. This saying is a Shakespearean phrase I learned from Paul Freund and have
always treasured because it is so obscure. In olden times, a branch of ivy (a
bush) was hung outside a tavern to indicate wine for sale.
n5. Hart's Dialogue was reproduced in the third edition of Paul M. Bator,
Daniel J. Meltzer, Paul J. Mishkin & David L. Shapiro, Hart and Wechsler's The
Federal Courts and the Federal System (3d ed. 1988), but was replete with
footnotes bringing aspects of the text up to date. See id. at 393-423. Because
this burden had become increasingly heavy, we decided, as editors of the fourth
edition, to discuss and quote liberally from the article but not to reproduce
it. See Richard H. Fallon, Daniel J. Meltzer & David L. Shapiro, Hart and
Wechsler's The Federal Courts and the Federal System 366-67 (4th ed. 1996).
n6. See Hart, supra note , at 1395. At this point, Hart was complaining that
under then-current Supreme Court doctrine, an alien who had entered the country
illegally had all the protections afforded by the guarantees of due process,
while a resident alien who goes abroad to visit a dying parent and seeks to
return with a duly issued passport and visa appeared to have none.
Now, we live in an era when - perhaps as a reaction to earlier times - one can
be accused of a racial slur and lose one's job (at least for a while) for using
"niggardly," a word of Scandinavian origin, see Jonathan Chait, Doubletalk, New
Republic, Feb. 22, 1999, at 50, 50, and when "he" is no longer a politically
acceptable generic pronoun. We are all caught up in our times.
n7. That all the justices are male is evident from the internal references by
the justices themselves to their colleagues. Their other characteristics are
matters of conjecture, and indeed assumptions about those characteristics can
only be based on a guess about how people in the late 1940s thought about the
judiciary, and on the failure of any of the justices to make a point about his
race, nationality, or background. To quote Professor Eskridge in his 1993
discussion of Fuller's piece, "There is no explicit clue of any sort to the
race of any participant. That is, itself, an implicit clue. In the 1940s, it
went without saying that you were white if your race was not noted." William N.
Eskridge, Jr., The Case of the Speluncean Explorers: Twentieth-Century
Statutory Interpretation in a Nutshell, 61 Geo. Wash. L. Rev. 1731, 1750 n.111
(1993). (Is this assertion - that a black writer in the 1940s, writing in any
context, would always refer to his race - supported by empirical data?)
Eskridge goes on to say, "The affluence of the Speluncean world is suggested by
the preppy, upper-class context of the hypothetical: the hobby is the rarefied,
relatively expensive one of cave-exploring. Moreover, [the case ends] up as a
battleground of Newgarth's political elites (the Chief Executive and the
Court)." Id. at 1750-51 n.112 (citation omitted). (Was Fuller's move - from the
real-life seafaring cases cited below, see infra note , to a case involving
explorers - made in order to change the social class of the accused or because
the cave situation was more pliable in terms of the facts he wanted to develop?
And is the institutional issue he wanted to present - the issue of
institutional role in a system of law - properly characterized, in terms of
either its significance or the author's purpose, as a "battleground" of
n8. Fuller, infra, at 1859 (Foster, J.). To quote Professor Eskridge again,
"The only appearances of nonwealthy people in the case are demeaning... Most
revealing is the snide reference by Justice Foster - the "nice' Justice - to
the "stupidest housemaid.'" Eskridge, supra note 7, at 1751 n.112. This point
is made the capstone of Professor Paul Butler's opinion on this issue. See
infra, at 1917 (Stupidest Housemaid, J.).
n9. See Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884) (involving
defendants, who, after twenty days on a lifeboat, killed and then ate the
youngest person on the boat - evidently without any agreed-upon procedure for
determining the one to be sacrificed - and who were ultimately convicted of
murder but had their death sentences commuted); United States v. Holmes, 26 F.
Cas. 360 (C.C.E.D. Pa. 1842) (No. 15,383) (involving a defendant who was a
member of the crew of a ship that sank and who was convicted of manslaughter
and sentenced to six months imprisonment for throwing several passengers out of
a long-boat so that he and the others in the boat might survive).
n10. Some think that to deal with a case fairly and fully, we must be able to
explore in depth every aspect of the context in which it arises. Cf., e.g.,
John T. Noonan, Jr., Persons and Masks of the Law 111-51 (1976) (discussing the
context of Palsgraf v. Long Island Railroad, 162 N.E. 99 (N.Y. 1928)). Of
course, no hypothetical can meet such a demanding standard, though Fuller has
clearly gone beyond the standard A, B, and C of the law school classroom, and
made a concerted effort to provide enough information for full debate of the
issues he wanted to raise.
n11. Fuller, infra, at 1853 (Truepenny, C.J.).
n12. See id. at 1853-54.
n13. Eskridge suggests that they are, and I agree. See Eskridge, supra note 7,
n14. Fuller, infra, at 1855 (Foster, J.).
n15. See id. at 1858.
n16. See id.
n17. See Fuller, infra, at 1859-61 (Tatting, J.).
n18. See id. at 1863.
n19. See Fuller, infra, at 1864 (Keen, J.).
n20. See id. at 1868.
n21. See Fuller, infra, at 1868, 1870 (Handy, J.). In a delightful passage in
which Fuller perhaps gets carried away, Justice Handy dismisses the likelihood
of executive clemency on the basis of his knowledge of the Chief Executive's
character - knowledge acquired because, as it happens, "my wife's niece is an
intimate friend of his secretary." Id. at 1872.
n22. See id. at 1870.
n23. See Eskridge, supra note , at 1737 n.38 (citing Lon L. Fuller, The Law in
Quest of Itself (1940); Lon L. Fuller, American Legal Philosophy at
Mid-Century, 6 J. Legal Educ. 457 (1954); and Lon L. Fuller, Reason and Fiat in
Case Law, 59 Harv. L. Rev. 376 (1946).
n24. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process:Basic Problems
in the Making and Application of Law 1111-1380 (William N. Eskridge, Jr. &
Philip P. Frickey eds., Foundation Press 1994) (1958).
n25. Eskridge, supra note .
n26. Naomi R. Cahn, John O. Calmore, Mary I. Coombs, Dwight L. Greene, Geoffrey
C. Miller, Jeremy Paul & Laura W. Stein, The Case of the Speluncean Explorers:
Contemporary Proceedings, 61 Geo. Wash. L. Rev. 1754 (1993) [hereinafter
n27. Eskridge, supra note , at 1732.
n28. Id. at 1743.
n29. Id. at 1750-51.
n30. This is my reading of the conclusions reached, but in some instances, the
authors might disagree with that reading.
n31. See Eskridge, supra note , at 1751-52.
n32. See Contemporary Proceedings, supra note , at 1800 ("We have both the
right and the responsibility to interpret statutes in such a way as to serve
the apparent legislative purpose - indistinct as that may be ....") (opinion of
Professor Geoffrey C. Miller).
n33. See id. at 1801-07 (opinion of Professor Jeremy Paul). Paul rejects
Justice Handy's reliance on the views of "the common man." Id. at 1806. But in
reaching his conclusion that it would be "monstrous ... to put these defendants
to death for actions we can't even agree constitute a crime," id. at 1807, Paul
confesses his "inability to announce an overarching principle that compels
reversal," along with his lack of concern that this is so, id. at 1805.
n34. Id. at 1763 (opinion of Professor Naomi R. Cahn).
n35. See id. at 1785, 1787, 1789 (opinion of Professor Mary I. Coombs). In
Fuller's hypothetical, the jury foreman asked that the question of guilt be
determined by the court on the facts as found, and we are told that "counsel
for the defendants" accepted the procedure. Fuller, infra, at 1853 (Truepenny,
n36. Contemporary Proceedings, supra note , at 1811 (opinion of Professor Laura
W. Stein). Chief Justice Truepenny's summary of the facts states only that
Whetmore (speaking from inside the cave and just before communications were cut
off) "asked if there were among the party [outside the cave] a judge or other
official" who would tell them whether it "would be advisable" to cast lots to
determine who should be eaten, but "none of those attached to the rescue camp
was willing to assume the role of advisor in this matter." Fuller, infra, at
1852 (Truepenny, C.J.). Thus, we are not told whether any judges or other
authorities on the law were present at all.
n37. Contemporary Proceedings, supra note , at 1766 (opinion of Professor John
n38. Id. at 1790-91 (opinion of Professor Dwight L. Greene).
n39. Fuller does not tell us whether Newgarth has a constitutional guarantee of
jury trial like ours or whether it has a constitution at all. Indeed, I am sure
he wanted his readers to think about these issues free from whatever
constraints a constitution might impose. Moreover, Professor Coombs seemed
determined to jam a jury trial down the defendants' throats whether they wanted
one or not - an idea squarely at odds with our own constitutional precedent,
see Patton v. United States, 281 U.S. 276 (1930).
n40. My count assumes that Professor Butler would reverse the conviction in its
entirety. If he would reverse only on the issue of the appropriate sentence,
then the vote to affirm would be 4-2.
n41. Infra, at 1878 (Kozinski, J.). Since I first set down my thoughts on the
initial drafts of the contributors to this revisiting of Fuller's case, several
of those contributors have supplemented their opinions with insightful
critiques of the approaches of their colleagues. Perhaps the most complete of
these critiques is Kozinski's, whose comments sometimes overlap, sometimes
improve on, and sometimes considerably surpass, my own. But having invested the
initial effort in collecting my own thoughts, I am unwilling to forgo the
opportunity to voice them now.
n42. See id.
n43. Id. at 1879.
n44. In this example, Kozinski asks whether it would be appropriate for a court
to remedy a "legislative oversight" or fill in what may or may not have been an
inadvertent gap in the statute, by applying the law to the killing of a dog.
Id. at 1878.
n45. See Eskridge, supra note , at 1798 (opinion of Professor Geoffrey C.
Miller) ("There are many contexts in which "another' can mean an animal. True,
we naturally read the qualification "human being' after the word "another,' but
that is only because execution for killing an animal seems excessive.").
n46. See, e.g., Cass R. Sunstein, The Supreme Court, 1996 Term - Foreword:
Leaving Things Undecided, 110 Harv. L. Rev. 6, 20-21 (1996).
n47. See infra, at 1884-85 (Sunstein, J.).
n48. See Fuller, infra, at 1860-62 (Tatting, J.), 1864-67 (Keen, J.).
n49. See Fuller, infra, at 1861 (Tatting, J.) (noting the impulsive character
of resisting an aggressive threat to one's life).
n50. See id. at 1862 (questioning whether it would have mattered if Whetmore
had refused from the beginning to participate in the plan).
n51. See infra, at 1895-97 (West, J.).
n52. See id. at 1896-97.
n53. See id. at 1899.
n54. See id. at 1898.
n55. See Fuller, infra, at 1870-73 (Handy, J.).
n56. The history of the Supreme Court's struggle with the constitutional
problems presented by capital punishment is remarkable, with respect to both
the changes in the Court's approach over time and the deep divisions within the
Court at any particular time. For several decades, the Court has grappled with
a steady series of cases involving the permissible circumstances in which
capital punishment may be imposed, as well as the considerations that may, may
not, or must be taken into account. See Carol S. Steiker & Jordan M. Steiker,
Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation
of Capital Punishment, 109 Harv. L. Rev. 355 (1995) (describing and critiquing
the Supreme Court's treatment of these issues since 1972 and concluding that
"the death penalty is, perversely, both over- and under-regulated").
n57. See supra note .
n58. Cf. David L. Shapiro, Continuity and Change in Statutory Interpretation,
67 N.Y.U. L. Rev. 921 (1992) (making a similar argument about the role of
courts in dealing with statutes).
n59. See infra, at 1915 (Easterbrook, J.).
n60. See id. at 1915-16.
n61. In a previous article, Easterbrook more fully discusses this distinction,
emphasizing, inter alia, the difference between a statute that enacts a code of
rules, on the one hand, and a statute that delegates a kind of common law
interpretive function to the courts on the other. See Frank H. Easterbrook,
Statutes' Domains, 50 U. Chi. L. Rev. 533 (1983).
n62. Fuller, infra at 1856-57 (Foster, J.).
n63. See infra, at 1893 (West, J.).
n64. See infra, at 1914 (Easterbrook, J.).
n65. Who turns out to be a "gay woman of color." Infra, at 1901 n.3 (De Bunker,
n66. See id. at 1899-1900.
n67. See id. at 1904-05.
n68. See United States v. Holmes, 26 F. Cas. 360, 369 (C.C.E.D. Pa. 1842) (No.
15,383); Regina v. Dudley & Stephens, 14 Q.B.D. 273, 288 (1884).
n69. Citing what is surely the more famous of these cases - Regina v. Dudley
and Stephens, 14 Q.B.D. 273 (1884) - in support of his argument, Dershowitz
notes that the Dudley court was divided, that the result was followed by
executive clemency, and that in any event, "the vast majority of comparable
cases - both before and after that decision - resulted in acquittal or
decisions not to prosecute ...." Infra, at 1904 (De Bunker, J.). The first two
of these points strike me as furnishing little support for Dershowitz's
argument. Few controversial decisions are unanimous; what is critical is that
neither the British nor the Newgarth legislature opted to reject the result.
And as for the subsequent commutation, it resembles what Chief Justice
Truepenny urged in voting to affirm; such extraordinary cases, he contended,
are not appropriate for rules promulgated by courts without any legislative
authorization, but rather, they call for the case-by-case exercise of executive
discretion focused on the particular circumstances. See infra, at 1853-54
Finally, I am puzzled by the reference to "the vast majority of comparable
cases." There is no citation of supporting authority, and I did not know that
the practice of cannibalism in these circumstances is so common that it is
possible to speak of the cases in terms of a vast majority. (Perhaps my notion
of what cases are comparable is a less expansive one.) There may be a large
iceberg under the few appellate cases on the subject, but I am unaware of any
empirical studies to support its existence.
n70. Kozinski's examples in support of this point, see infra, at 1880
(Kozinski, J.), are a delight.
n71. See infra, at 1905-09 (De Bunker, J.).
n72. Id. at 1909.
n73. See Paul Butler, Racially Based Jury Nullification: Black Power in the
Criminal Justice System, 105 Yale L.J. 677 (1995).
n74. Fuller, infra, at 1859 (Foster, J.).
n75. Infra, at 1918 (Stupidest Housemaid, J.).
n76. Id. at 1919.
n77. See id. at 1918.
n78. See id.
n79. Id. at 1920.
n80. Id. at 1923.
n81. See Fuller, infra, at 1862 (Tatting, J.).
n82. "The majestic equality of the law ... forbids the rich as well as the poor
to sleep under bridges, to beg in the streets, and to steal bread." Anatole
France, Le Lys Rouge 111-23 (1894), quoted in The Oxford Dictionary of
Quotations 292 (Angela Partington ed., 4th ed. 1992).
n83. I must admit that in spite of myself, I couldn't help smiling at Butler's
Handy-like trashing of the opinions of the other new justices, as well as of
his own, and at the allusion (advertent, I'm sure) to Henny Youngman's most
n84. See Fuller, infra, at 1870 (Handy, J.).
n1. The presumption in favor of plain meaning and the void-for-vagueness
doctrine are cousins because both are designed to promote rule of law values
and, in particular, to give the legislature an incentive to speak clearly.
n1. It is to be regretted perhaps, though understood, that many atheists
remained whetted to prior tribal groups. There were Jewish atheists, Catholic
atheists, Protestant atheists, Muslim atheists, and other smaller groupings,
arguing vigorously over which God not to believe in.
Even prior to the great apocalypse, many thoughtful people understood that
their religious "beliefs" and practices were based on myths similar to those of
their polytheistic predecessors. But they also saw that religion was important
to the lives of many of their friends and that it produced much good - like a
placebo taken by one who believes it to be a potent medicine. They were content
to regard religion as a pious and harmless fraud. But the great apocalypse
demonstrated how dangerous such myths had become, and most citizens began to
demand that religion be treated like other irrational belief systems such as
astrology, tarot cards, and voodoo. Soon it became as unfashionable to believe
in the supernatural doctrines of formal religion as it was to believe that the
earth was flat.
Even prior to the Great Fundamentalist Wars of the third millenium, some
courageous intellectuals began to challenge monotheistic dogma, but they had
considerable difficulties in persuading the masses. Part of the reason for
their hardship was that certain evil totalitarian regimes had forced atheism on
their citizens, thereby associating disbelief in God with tyranny. It became
voguish for prudent intellectuals to argue that science (empirical truth) and
faith (belief) must be kept separate and that matters of faith should not be
judged by scientific criteria. This, too, however, was a myth because many of
the claims of faith - for example, that Moses parted the Red Sea, that Jesus
walked on water, and that Mohammed ascended to heaven on a horse - are
empirical and historical: they either happened or they were made up. Following
the wars, more people began to insist on proof of such claims and concluded
that they were fictional.
n2. Contemporary historians still cannot solve the intellectual puzzle of why,
for more than 2,000 years, so many people concluded that belief in one
supernatural being (monotheism) was regarded as an "advance" over belief in
many supernatural beings (polytheism).
n3. To illustrate the point that principles of "natural law" can cut in
different directions, consider the principle that every human life is of equal
value. Justice West employs a variation on that principle to demand conviction
in this case. Yet the American Law Institute cites precisely the same principle
to justify the killing of one innocent person to save the lives of many: "The
life of every individual must be taken in such a case to be of equal value and
the numerical preponderance in the lives saved compared to those sacrificed
surely should establish legal justification for the act." Model Penal Code 3.02
commentary at 14-15 (1962).
As a gay woman of color, I am particularly skeptical of deriving moral laws
from the nature of human beings because history has shown that most such laws
have been derived from the purported nature of "man" - in the past, usually a
white, heterosexual man of the dominant group. I am also skeptical of
inalienable rights because, for centuries, such rights did not include those of
women, gays, or racial minorities. Today, of course, whites are the racial
minority in most nations, including our own. The principle, however, remains
the same. Of course, positive laws - such as those enacted in Nazi Germany in
the second millenium - have been used to subordinate (and worse) many human
beings, but natural law has been likewise abused. These are all powerful
arguments for why we should prefer laws that entrench certain basic rights,
such as equality, freedom of conscience and expression, due process, and other
protections against the tyranny of positive, natural, or other kinds of law and
I also prefer a system that assures both religious freedom for those few
dissidents who continue to insist that there is a god - who gave Moses the
Torah, is Jesus's father, and inspired Mohammed - and the freedom to believe in
and practice other irrational superstitions, so long as such practices do not
interfere with the rights of the vast majority of rational people to base our
lives on principles of human reason. Efforts to impose atheism by law have
failed, as have efforts to impose religion by law. The marketplace of ideas and
beliefs has proved to be the better option.
n4. I, too, believe that certain rights should be accepted by agreement as
inalienable, or at least as not subject to abrogation by a simple majority.
This is my preference, and I hope to persuade others to agree with it.
n5. As the ancient Talmud rhetorically asked: "Who knows that your blood is
redder?" Sanhedrin 74a in The Babylonian Talmud 503 (I. Epstein ed. & H.
Freedman trans., 1935).
n6. In the old days, the prospect of punishment in the afterlife - eternity in
hell - could be threatened. Today, of course, few believe in such irrational
"ghost stories." Even in the past ages of religions it is doubtful whether many
people actually believed in heaven and hell because so many sins were committed
by "believers." The threat of eternal punishment and reward did not dispense
with the need for earthly punishments to deter crimes that were also sins.
n7. There may, of course, be moral objections if the penalties necessary to
deter the conduct are too harsh or fall too heavily on innocent third parties.
See, e.g., supra, at 1897-99 (West, J.) (appearing to make such an argument in
her rejection of the death penalty as a punishment for the defendants, although
she does believe they are guilty under the statute).
n8. It could be argued that elite philosophers or jurists are better suited
because of their intellect and education to make such decisions. Many millennia
ago, a Greek philosopher named Plato proposed such an elitist theory of
decisionmaking. Most democracies have rejected it, concluding instead that
representative decisionmaking is preferable. Choosing who should decide the
law, too, is ultimately a matter of preference and persuasion. However, the
advocates of representative decisionmaking have generally prevailed over time.
n9. See, e.g., David Daube, Collaboration with Tyranny in Rabbinic Law (1965);
Marilyn Finkelman, Self-defense and Defense of Others in Jewish Law: The Rodef
Defense, 33 Wayne L. Rev. 1257 (1987). Among the cases - some actual, others
hypothetical - considered in the Talmud are the following: an enemy general
surrounds a walled city and threatens to kill all of its inhabitants unless
they turn over one individual for execution; two people are dying of thirst in
the desert with enough water between them to save one but not both; a child,
below the age of legal responsibility and thus deemed innocent, threatens the
life of another innocent person and can be prevented from killing only by being
killed (the filmmaker Alfred Hitchcock presented a variation on this theme in
an episode from his television program); and a fetus endangers the life of a
pregnant mother who can be saved only by killing the fetus (a variation is that
during delivery, the baby endangers the life of the mother who can be saved
only by killing the partially delivered baby).
n10. Johann Christoph Friedrich von Schiller, Wallenstein's Camp, sc. 4 (1798),
quoted in Bartlett's Familiar Quotations 365 (John Bartlett & Justin Kaplan
eds., 16th ed. 1992).
n11. The killing was also premeditated, as are all judicial executions. The
official death certificate in a famous death penalty case during the last
century of the second millennium - the Sacco and Vanzetti case, Commonwealth v.
Sacco, 151 N.E. 839 (Mass. 1926) - listed the cause of death of the defendants
as "electric shock judicial homicide." Certificate of Death of Bartolomeo
Vanzetti (1927) (on file with the Harvard Law School Library).
n12. One of my judicial colleagues, whom I will not name, is sometimes referred
to as "Necessity," because he too "knows no law."
n13. See Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and its
Processes: Cases and Materials 860-80 (6th ed. 1995). Surely the death of
several people is a greater harm than the death of one person. But see Nezikin
5, in The Babylonian Talmud (I. Epstein ed. & H. Freedman trans., 1935)
("Whosoever preserves a single soul of Israel [it is] as though he had
preserved a complete world.").
n14. Perhaps this decision would be influenced by the tragic reality that so
many of those who created the dilemma - the Nazi murderers - got away with it.
n15. The necessity defense has been "anciently woven into the fabric of our
culture." J. Hall, General Principles of Criminal Law 416 (2d ed. 1960), cited
in Laura J. Schulkind, Note, Applying the Necessity Defense to Civil
Disobedience Cases, 64 N.Y.U. L. Rev. 79, 83 n.20 (1989). It can be found in
caselaw dating as far back as 1551 in Reniger v. Fogossa, 75 Eng. Rep. 1 (K.B.
1551). Arguing that a captain who docked his ship to avoid a storm would not
have to forfeit his goods as the statute would have required, the Court
[A] man may break the words of the law, and yet not break the law itself ...
And therefore the words of the law ... will yield and give way to some acts and
things done against the words of the same laws, and that is, where the words of
them are broken to avoid greater inconvenience, or through necessity ...
Id. at 29. The Reniger court reached even further back to the New Testament
example in Matthew 12:3-4 of eating sacred bread or taking another's corn
through necessity of hunger. See id. at 29-30; see also Edward B. Arnolds &
Norman F. Garland, The Defense of Necessity in Criminal Law: The Right to
Choose the Lesser Evil, 65 J. Crim. L. & Criminology 289, 291 n.27 (1974)
(citing Reniger). Arnolds and Garland enumerate many other older, see Arnolds &
Garland, supra, at 291 nn.29-34, and modern, see id. at 291-92 nn.35-37,
English cases that "recognize the general principle of necessity," id. at 291,
as well as both federal, see id. at 292 nn.38-44, and state, see id. at 292
nn.45-50, cases in the United States. The court system's recognition of the
necessity defense is also acknowledged in casebooks. See, e.g., Sanford H.
Kadish & Stephen J. Schulhofer, Criminal Law and Its Processes 860-80 (6th ed.
n16. The necessity defense is part of the Model Penal Code, see Model Penal
Code 3.02, and has been incorporated into many state criminal codes, see
Lawrence P. Tiffany & Carl A. Anderson, Legislating the Necessity Defense in
Criminal Law, 52 Denv. L.J. 839 (1975) (examining how many states included the
necessity defense when they recodified their criminal statutes).
n17. See, e.g., Ky. Rev. Stat. Ann. 503.030 (Michie 1985) (stating that "no
justification can exist ... for an intentional homicide"); Mo. Rev. Stat.
563.026 (1994) (stating that "conduct which would otherwise constitute any
crime other than a class A felony or murder is justifiable and not criminal
when it is necessary as an emergency measure to avoid an imminent public or
private injury"); Wis. Stat. Ann. 939.47 (West 1997-98) (stating that necessity
"is a defense to a prosecution ... except that if the prosecution is for
first-degree intentional homicide, the degree of the crime is reduced to
2nd-degree intentional homicide"); Regina v. Pommell, 2 Crim. App. 607, 608
(1995) (stating that the necessity defense does not apply to murder and
attempted murder), cited in Alan Reed, Duress and Provocation as Excuses to
Murder: Salutary Lessons from Recent Anglo-American Jurisprudence, 6 J.
Transnat'l L. & Pol'y 51, 68 n.20 (1996).
Those jurisdictions that limit the necessity defense to crimes other than
killing face the following conundrum: A person who was provoked into killing by
seeing his wife in bed with another man can have the charges reduced from
murder to manslaughter if he is deemed to have acted as a reasonable man would
have acted under a similar provocation. But a man who kills one person to save
multiple lives faces conviction for first-degree murder. Such cases and
statutes also contradict the general principle found in the Model Penal Code
commentaries that the defense is available [when] a person intentionally kills
one person in order save two or more." 1 Wayne R. LaFave & Austin W. Scott,
Jr., Substantive Criminal Law 5.4, at 632 (1986).
n18. As Tiffany and Anderson conclude:
The common law rejection [in Dudley] of the defense when the intentional
killing of an innocent person was involved, appears now to be almost
universally rejected itself. The most common statutory approach is to provide,
merely, that if the other conditions of the defense are all satisfied, the
actor's "conduct" is justified.
Tiffany & Anderson, supra, at 860 (footnotes omitted).
n19. The American Law Institute continued:
For, recognizing that the sanctity of life has a supreme place in the hierarchy
of values, it is nonetheless true that conduct that results in taking life may
promote the very value sought to be protected by the law of homicide. Suppose,
for example, that the actor makes a breach in a dike, knowing that this will
inundate a farm, but taking the only course available to save a whole town. If
he is charged with homicide of the inhabitants of the farm house, he can
rightly point out that the object of the law of homicide is to save life, and
that by his conduct he has effected a net saving of innocent lives. The life of
every individual must be taken in such a case to be of equal value and the
numerical preponderance in the lives saved compared to those sacrificed surely
should establish legal justification for the act. So too, a mountaineer, roped
to a companion who has fallen over a precipice, who holds on as long as
possible but eventually cuts the rope, must certainly be granted the defense
that he accelerated one death slightly but avoided the only alternative, the
certain death of both. Although the view is not universally held that it is
ethically preferable to take one innocent life than to have many lives lost,
most persons probably think a net saving of lives is ethically warranted if the
choice among lives to be saved is not unfair. Certainly the law should permit
such a choice.
Kadish & Schulhofer, supra, at 877-78 (quoting Model Penal Code 3.02 commentary
at 14-15 (1985)).
n20. See also United States v. Lanier, 520 U.S. 259, 266 (1997) ("The canon of
strict construction of criminal statutes, or rule of lenity, ensures fair
warning by so resolving ambiguity in a criminal statute as to apply it only to
conduct clearly covered."); Staples v. United States, 511 U.S. 600, 619 (1994)
(noting that under the rule of lenity, an "ambiguous criminal statute" should
be "construed in favor of the accused").
n21. Indeed, it is fair to say that few lawyers get through law school without
discussing this conundrum and its numerous variations. Most law students read
Dudley and Stephens and United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa.
1842) (No. 15,383). Many also study the writings of the great twentieth-century
philosopher Robert Nozick, who, in 1974, constructed the following prescient
If someone picks up a third party and throws him at you down at the bottom of a
deep well, the third party is innocent and a threat; had he chosen to launch
himself at you in that trajectory he would be an aggressor. Even though the
falling person would survive his fall onto you, may you use your ray gun to
disintegrate the falling body before it crushes and kills you? Libertarian
prohibitions are usually formulated so as to forbid using violence on innocent
persons. But innocent threats, I think, are another matter to which different
principles must apply. Thus, a full theory in this area also must formulate the
different constraints on response to innocent threats. Further complications
concern innocent shields of threats, those innocent persons who themselves are
nonthreats but who are so situated that they will be damaged by the only means
available for stopping the threat. Innocent persons strapped onto the front of
the tanks of aggressors so that the tanks cannot be hit without also hitting
them are innocent shields of threats. (Some uses of force on people to get at
an aggressor do not act upon innocent shields of threats; for example, an
aggressor's innocent child who is tortured in order to get the aggressor to
stop wasn't shielding the parent.) May one knowingly injure innocent shields?
If one may attack an aggressor and injure an innocent shield, may the innocent
shield fight back in self-defense (supposing that he cannot move against or
fight the aggressor)? Do we get two persons battling each other in
self-defense? Similarly, if you use force against an innocent threat to you, do
you thereby become an innocent threat to him, so that he may now justifiably
use additional force against you (supposing that he can do this, yet cannot
prevent his original threateningness)?
Robert Nozick, Anarchy, State, and Utopia 34-35 (1974). Students have also
debated the following hypothetical case: A doctor is experimenting with a
deadly virus; the virus begins to spread (through no fault of the doctor); the
only way to prevent the spread of the virus is to seal the room from which the
doctor is trying to flee, thus dooming him.
n22. Justice Easterbrook premises his decision largely on the assumption that
these defendants implicitly consented to the decision ultimately taken and the
conclusion that "society should recognize that agreement." See infra, at 1916
(Easterbrook, J.). The problem is that consent, even when explicit, has not
always been accepted as a defense to willful killing, as evidenced by the
ancient case of People v. Kevorkian, 527 N.W.2d 714 (Mich. 1994).
n23. Indeed, under governing case law, his homicide was even premeditated
because premeditation can occur in an instant.
n24. There are, however, some who justify using organs of prisoners condemned
to death, despite the reality that this might result in more executions for the
sole purpose of using the prisoner's organs to save others' lives.
n25. As Justice West states:
There are currently a sizable number of citizens in this country awaiting organ
donations, bone marrow replacements, and blood transfusions. The profound
scarcity of such organs, bone marrow, and non-contaminated rare blood types is
the sad reality that all such patients (as well as those of us who may at any
point become such a patient) are forced to endure. That scarcity prompts
incomparable anguish among the needy donees, and tortured decisions by medical
Supra, at 1896 (West, J.).
n26. Another important indicium that our legislature did not intend to include
the type of necessity killing under the general prohibition against murder is
that it failed to specify an appropriate punishment for this kind of
tragic-choice killing. Surely it would be wrong for a judge to be empowered to
punish our defendants as severely as a defendant who killed for profit, thrill,
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