Wednesday, 27 July 2016


It's okay to feel sad and lost

It's okay to feel sad and lost once in a while but it is certainly not okay to pity yourself till eternity.
If you are extremely bored of your life, you burn in self pity, see your life to be a rudderless boat with nowhere to go just waiting to sink, if you feel you are living in a world with no humour, hope or song, trust me, you are not alone. Hundreds if not thousands of human beings are passing through this phase  at this precise moment. In the unceasing humdrum of life, in our endless running in a track with ever-moving ever-changing goal posts we are bound to loose our breath once in a while. It's okay. BUT if you end up in ceaseless (and senseless) self pity just because you lost your breath, its certainly not okay.  Accept your failings and your brooding as a necessary part of life and growing up. STOP for a while. Forget the rat race. Do not bother that your neighbour has bought a bigger car.  Take a stock of your life dispassionately. Not just in terms of your assets but on your achievements or your own bucket list of things to do which you had when you started your career or when you were in college. Revive old acquaintances and make new friends. But take care to keep out negative people. Make friends with people who have different interests than you, who are in a different profession than you. Travel. Keep your mind open. Pray. Exercise. Revive an old hobby. Evaluate your future goals (use SWOT if you like).

Remember even this shall pass like everything else, good and bad, has passed. This phase is priceless because it can make us think, help us to make adjustments with reality and 'life', phase out the unnecessary and ponder upon and hold what's precious.

Really speaking, time is the only resource we have. Let us not loose it in endless brooding. If you are in a career you do not enjoy, seriously plan a sabbatical or even a career change. Remember, we spend atleast 50% of our life at work, it better be interesting. But don't pine for a utopia.  If a break is what you are looking for. Go plan and take it. It's your life. Only you can take control of it.

All the best!!

"We are responsible for what we are, and whatever we wish ourselves to be, we have the power to make ourselves" - Swami Vivekananda

Thursday, 7 June 2012

Euthanasia - a passionate plea for allowing it


Dear Readers,

Since sometime I have wanted to write on euthanasia. I won’t go into the legalese of it. It has been discussed threadbare by thinkers and legal experts before me. I want to make a passionate case for permitting euthanasia in India.

Much water has flown since Gian Kaur v. State of Punjab (link http://www.indiankanoon.org/doc/1513502/) in 1996. I sincerely feel that euthanasia should be permitted, both passive and active variants of it. It would be more humane to long sufferers. Dying is a reality of our mortal lives. We all would die one day. (I agree that it is the biggest denial of human life too. We never believe that we would die in our lifetime except when death is imminent. But that is an altogether different discussion. I would save it for future time.) Why not bestow some dignity to the person dying. Imagine a long suffering patient lodged in a hospital for years. None of his body parts are working, only thing working is his heart. The medical fraternity has given up. This patient continues to suffer. His family has more or less accepted his fate. Don’t you think, to force him to live in such circumstances, is actually punishing him. Won’t he be better off, if he is allowed to die. After all, he would “die’ one day, and does his vegetative state amount to a “life”.  The Supreme Court itself says life is more than living in a vegetative state. Of course, medical science may find a magic cure, but aren’t chances for a magic cure slim. Should he be left to suffer and punished for no folly of his.

Of course, I don’t advocate unbridled right to anybody and everybody who would want to die. I agree that euthanasia can be misused. But we can allow euthanasia after a court decides in its favour. And let us make it a time-bound decision. Lets say a 60-day period from date of application. A long winding case, would only strain the patient and his family, physically, mentally and monetarily.

Do think about this. And let me know your views.

Thanks & regards,
Kavita

Friday, 24 February 2012

Read an article today on taxability of capital gains. This article, inter alia speaks of tax avoidance plnning in India. Tax avoidance schemes are prohibited by law in India. (Supreme Court's judgemnet in Mc Dowell's case of 1985; the judgemnet has been quoted in the article). However, under the guise of foreign investment promotion into India, the government has been winking to such blatant activity. The author gives the example of recent Vodafone judgemnet. (The article can be accessed at  http://www.thehindu.com/opinion/lead/article2920912.ece.)

Tuesday, 31 January 2012

The Case Of The Speluncean Explorers – An Analytical Study

The Case of the Speluncean Explorers – A Study

PROLOGUE

Professor L. Fuller was adept in explaining law through allegory. It is said that there is no better way to study law than to read cases. There is no better way to study legal philosophy than to see how various theories clash with each other. The Professor achieved all of these objectives in the brilliantly imagined case that he invented – The Case of the Speluncean Explorers.

Professor Lon L. Fuller's Case of the Speluncean Explorers is said to be the greatest fictitious legal case of all time. That is saying a lot, for it has some stiff competition. While its competitors may outdo it in courtroom drama, character development, or investigative suspense, none matches it in legal depth or dialectical agility. It doesn't show what makes some lawyer's caseload interesting, but what makes law itself interesting.[1] His story of Rex is another interesting allegory[2] which speaks about the characteristics which a law shouldn’t have. The following statement by Fuller in his book Morality of Law outlines his philosophy:
The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort.[3]

ABOUT THE AUTHOR
Fuller (1902-78) is a representative of the school of legal thought known as ‘purposive jurisprudence’[4]. This is a kind of jurisprudence which sees the activities of the courts as reflecting the very purposes of the law, which turn upon the subjecting of the human conduct to the control of ‘rules’. Law and morality are intertwined and, according to Fuller a law which is completely divorced from morality, ceases to be law.
Fuller was an American, a Texan to be precise. He served as professor of Law at Harvard University for many years, and is noted in American law for his contributions to the law of contracts. His debate with H.L.A. Hart in the Harvard Law Review (Vol. 71) was of significant importance for framing the modern conflict between legal positivism and natural law. Fuller was an important influence on Ronald Dworkin, who was one of his students at Harvard Law.[5] He is regarded as one of the greatest legal philosophers of the 20th century. He had a profound effect on American jurisprudence.

Fuller’s The Morality of Law, first published in 1964, is his most famous and, perhaps, his most controversial work. At a time when legal positivism still dominated jurisprudence, the suggestion that law and morality were not only connected but connected intimately was such an affront to scientific thinking that it brought repeated charges of “axe grinding” from one reviewer.[6]

CASE OF SPELUNCEAN EXPLORERS
This famous fictitious legal case was created by Lon L. Fuller in his article, "The Case of the Speluncean Explorers," Harvard Law Review, vol. 62, no. 4 (1949) pp. 616-645. The case tells the story of a group of spelunkers (cave-explorers) in the Commonwealth of Newgarth, trapped in a cave by a landslide. As they approach the point of starvation, they make radio contact with the rescue team. Engineers on the team estimate that the rescue will take another 10 days. The men describe their physical condition to physicians at the rescue camp and ask whether they can survive another 10 days without food. The physicians think this very unlikely. Then the spelunkers ask whether they could survive another 10 days if they killed and ate a member of their party. The physicians reluctantly answer that they would. Finally, the men ask whether they ought to hold a lottery to determine whom to kill and eat. No one at the rescue camp is willing to answer this question. The men turn off their radio, and some time later hold a lottery, kill the loser, and eat him. When they are rescued, they are prosecuted for murder, which in Newgarth carries a mandatory death penalty. Fuller wrote five Supreme Court opinions on the case which explore the facts from the perspectives of profoundly different legal principles.
The result was a focused and concrete illustration of the range of Anglo-American legal philosophy at mid-century- THE SPELUNCEAN EXPLORERS CASE.

It is generally believed that Fuller’s case is based on two real cases, namely
Ø      U.S. v. Holmes (1842) and
Ø       Regina v. Dudley & Stephens (1884).
These two U.S cases can be called as life boat cases in which disaster at sea was followed by homicide and prosecution. In the Holmes case, the homicides were to lighten a badly overloaded lifeboat. In Dudley & Stephens, the homicide was to create a meal for the starving survivors.[7]

One can easily see the uncanny similarities between the facts of these two cases and that of Fuller. Fuller borrowed from these cases for his own: extremities of desperation, lotteries, cannibalism, popular sympathy for the defendants, politically difficult prosecutions, defenses of stark necessity, jury convictions and the possibility of pardons. Even small details, like the jury's special verdict in Dudley & Stephens, comes up again in Fuller's case. But an inventory of these borrowed elements only brings into relief the extent of Fuller's creativity. He moved the accident from the high seas to a cave within Newgarth.

In this paper, the parts have been sub-divided as follows:
1.      Allegory
2.      Opinion of Chief Justice Truepenny.
3.      Opinion of Justice Foster.
4.      Opinion of Justice Tatting.
5.      Opinion of Justice Keen.
6.      Opinion of Justice Handy.
7.      Conclusion and Findings

PART I: THE ALLEGORY/STORY
Lon L. Fuller’s the case of Speluncean Explorers was first published in 1949 in the Harvard Law Review.[8] Fuller wrote this story in order to illustrate a number of different theories about the nature of law and legal reasoning. The various opinions are written by fictional judges who represent different theories, and thus each opinion illustrates one or more of those theories.
In the case of Speluncean Explorers, Fuller’s lesson is that the law’s basic integrity is to be found within the very processes which are utilized ‘in the attainment of its proclaimed goals’. When Lon Fuller had put together his Speluncean Explorers hypothetical in the 1949, there were only two significant jurisprudential philosophies in the air: natural law and positivism. The former had largely been discredited, but was revived in the hypothetical by Justice Foster[9], who claimed that the trapped explorers were in a moral, if not geographical "state of nature."
This case is set in a mythical future, 4300 A.D. Fuller did not choose the date in random, he estimated that in 1949[10], ‘the centuries which separate us from the year 4300 are roughly equal to those that have passed since the Age of Pericles. The case is heard in the Court of General Instances of the County of Stowfield in the Commonwealth of Newgarth, which has a charter of government drawn up originally by the survivors of a past catastrophe (the Great Spiral). The case is based on a statute N.C.S.A (N.S.) which states in specific terms in Section 12-A that whoever lawfully takes the life of another shall be punished by death.’

The facts of the case are outlined as follows:
The four defendants and Roger Whetmore were members of a Speluncean Society in the Commonwealth of Newgarth. This society encouraged 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.[11] While exploring the cave, when they were in a position remote from the mouth of the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave, and therefore, they were all trapped within the cavern. The five men were carrying scant resources with them. On their non-return the families of the explorers informed the Society which in turn informed the State. A rescue party was promptly dispatched for their rescue. In the rescue operations, 10 workmen lost their lives in fresh landslides. A great expense was also incurred to rescue the trapped men.

It was found that one of the explorers has a portable radio set capable of sending and receiving messages. Therefore, contact was established by the rescue team with the trapped men. The five trapped men, after learning that it would be at least ten more days until they were rescued, sought a professional medical opinion as to whether or not they could possibly survive this duration. Upon being informed that they would not, they deliberated for eight hours after which they sought counsel first from the physician, then from a government official, and finally from a minister as to whether or not it would be advisable to cast lots and kill and consume one of their members so that the others may survive. None of the three parties were willing to answer. None of them answered in the affirmative or negative. With their question unanswered, the men severed radio contact with the people outside.

On their eventual release, it became apparent that some twenty three days after their entry into the cave, the defendants had killed and eaten Whetmore. In evidence, it was indicated that Whetmore had suggested that the group’s survival would be impossible without nutrient, and that this would necessitate the eating of flesh of a member of the group. It was also said that Whetmore himself had suggested the casting of lots by dice to choose such unfortunate member. However, Whetmore after reflection withdrew from the offer terming it frightful and odious. He was accused by the defendants of breach of faith and they proceeded to cast dice. Whetmore also declared that he had no objection to one of the defendants casting the dice on his behalf. The throw of the dice was unfortunately against Whetmore. The other group members therefore killed him after which they ate his flesh.
After the defendants had been rescued from the cave and their suitable treatment, they were indicted for the murder of Whetmore in the Court of General Instances, the County of Stowfield. The court found all of them guilty and were sentenced to death by hanging.
Following the discharge of the jury, its members joined in communicating with the state’s Chief Executive and requesting that the death sentence be commuted to imprisonment for a period of six months. Similar action was taken by the Trial judge. The defendants brought a petition of error to the Supreme Court of Newgarth. The court issued its opinions in the year 4300.
In the trial that ensued, the five judge bench gave differing opinions and profoundly different ratios for the same. Fuller wrote these five opinions as representing different schools of thought.
PART II OPINION OF CHIEF JUSTICE TRUEPENNY
In his argument Chief Justice Truepenny[12] after stating the facts as mentioned in Part I of this paper ruled in favour for strictly applying the letter of the law rather than interpreting the law. According to him 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. He however also proposed to his colleagues that they follow the example of the jury and trial judge by joining in the communications they have addressed to the Chief Executive of the State for clemency for the defendants.
Chief justice Truepenny appears to be an Advocate of Textualism or Institutionalism. He represented the Positivist[13] perspective. According to this school law should be given a literal interpretation. Law is what it is rather than what it ought to be. That is, it is free from moral considerations once it is enacted by a sovereign authority.
VERDICT: He affirmed the decision of the trial court but however requested clemency also.
ANALYSIS
The main thrust of this argument presented by Chief Justice Truepenny is that the statue under scrutiny is not ambiguous and is plainly stated for applying the law rather than interpreting the law. And, as the statue states, “Whoever shall willfully take the life of another shall be punished by death”, he said the defendants should be hanged till death. However, Truepenny’s argument has much strength which, at face value, can be applied to this case in question. Arguably, first, the language of the statue applies directly to what the defendants did to Roger Whetmore. Therefore, there is no argument not to punish defendants following the existing law. Also, there is no question into the matter that the men on trial “willfully” took the life of Whetmore. It is an admitted fat that they did.
However, there is another aspect of this peculiar case. As has been stated in the testimony of the defendants that Whetmore was in concurrence with the decision to cast lots to determine his own fate. Now, therefore, the question is, does all accountability of Roger Whetmore’s death reside in the defendants alone, or should Whetmore be held partly responsible as well for the crime.
Therefore, it is submitted here that it would be impractical to merely apply the statue on the grounds of the text and ignoring the basic foundation of why law has become law. There should be utilization of prudence in decision of cases and each case should be decided on its merits. What law requires is intelligent obedience, not idiotic adherence.

To conclude, Chief Justice Truepenny's legal analysis was short. He recommended a plea for clemency to the Chief Executive because he felt the statute was clearly against the conspirators. But there is no reflection or consideration of the statute itself; it is assumed to speak against the defendants. The appeal for clemency seemed as an abandonment of the judicial role, a sort of "cop out," or an admission that the legal system was not really able to handle the complexities of the issue.

OPINION OF JUSTICE FOSTER
Judge Foster it is said represents the alter-ego of Fuller. He represents the natural school[14] of jurisprudence. His opinion is the best written one of the five.
Justice Foster expressed shock at hearing of Chief Justice Truepenny’s opinion. He argued that the Law of the Commonwealth is at stake if we try to textually apply the law in this case. According to him, the defendants when trapped in the cave were outside the jurisdiction of Commonwealth of Newgarth.

VERDICT: In his verdict, he set aside the verdict of the Trial court and held that purposive construction should be given to the statutes.

ANALYSIS
Justice Foster did not believe that the law compels the monstrous conclusion that the defendants were murderers. On the contrary, he said it declares them to be innocent of any crime. He rested this conclusion on two independent grounds. He said the defendants are not guilty on both of these grounds independently of each other.
The first of these grounds is that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is governed instead by what ancient writers in Europe and America called "the law of nature." When a situation arises in which the coexistence of men becomes impossible, then a condition that underlies all of judicial precedents and statutes has ceased to exist. He says, when that condition disappears, then the force of our positive law disappears with it. It is similar to a situation in which a crime is committed outside the territorial jurisdiction of the State. This has the consequences 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. He therefore said applying this principle the defendants were not guilty of any crime.
He says that positive law is inherently territorial. Therefore, when a person is outside its scope, the rules of law would not apply to him. Applying this principle in the instant case, he says that the defendants were separated from the State by rock walls. Within them the State was not even able to supply them with succour. He adds that the State was created by a social contract to provide peace, order and succour to all.

The second ground that he takes is that 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. According to him every proposition of positive law should be interpreted reasonably, in the light of its evident purpose. In the judgment, Judge Foster says – “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. But the exception in favor of self-defense is not out of the words of the statute, but out of its purpose. 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.” That is, he argues that self-preservation is the most basic of all human tendencies. In the instant case, the defendants did not kill Whetmore out of mala fides but because they wanted to give succour to their starving bodies. Therefore, this was a killing in self defence.
He further sites the case[15] of Commonwealth v. Staymore wherein it was held that a person cannot be held guilty for anything which was beyond his control. It is here submitted that arguably, when a man made law is enacted or enforced, there is always a reason why the law was constructed in the first place. And therefore, law should be construed within its purpose.
Further, he adds that if the State could sacrifice 10 lives to save one, why cannot one life be sacrificed to save four.

To conclude, Justice Foster based his justification on the following. He says when we consider a case which has taken place a mile beyond territorial limits of a state; no one would pretend that the law of the state would be applicable to the case. This means that law is not absolute, and that the 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 ceases to exist. When that condition disappears that the force of our positive law disappears with it, then the law of nature works. Self-defense is a right not out of the words of a penal statute (like the one in this case), but out of its purpose. Even though there is nothing in the wording of the statute that suggests self-defense, the exception of self-defense is accepted.

OPINION OF JUSTICE TATTING.
Judge Tatting had a complete opposite view of that of Judge Foster. He said he cannot accept any of the latter’s opinions, more so the first part of it. According to Tatting J. law of contract cannot be more powerful than law of murder. Secondly he asked a very fundamental question – when exactly did the 5-member company move from a ‘state of civil society’ to a ‘state of nature’. Was it when the party entered the cave, or when the landslide occurred or when the party crossed the threshold of starvation? Further, he asked the Supreme Court of Newgarth was created out of a positive law. From where does the court arrive its authority to decide a dispute on law of nature rather than law of the State?
Verdict: He withdrew from the case.
ANALYSIS
Tatting J. also represented the positivist school.
Tatting J. argues that 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. He also argued that law of retribution is equally important if not more than law of deterrence[16] in criminal law. He quoted the case of Commonwealth v. Scape wherein it was held that the one of the objects of law is also to provide outlet for retribution. It has also been said that its object is the rehabilitation of the wrongdoer as in Commonwealth v. Makeover.
He also said that the there is no doubt that the defendants have committed murder. Citing Commonwealth v. Valjean[17], he said if a person cannot be pardoned for stealing a loaf of bread, how can one be forgiven for killing a person out of starvation.[18] Further, he says assuming that we must interpret a statue in the light of its purpose, what are we to do when it has many purposes or when its purposes are disputed? The familiar explanation for the excuse of self-defense cannot be applied by analogy to the facts of this case. These men acted not only "willfully" but also with great deliberation and after hours of discussion what they should do.
He however gave credence to Foster J. for his theory of purposive construction of a statute. He added that it is a matter of regret that the Prosecutor saw fit to ask for an indictment of 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 not to have indicted them at all.
Further, it seems from the allegory that Judge Tatting believed in the power of judicial precedents. He was confused as to what effect this precedent [19] would have on future cases before the courts.
Since He was wholly unable to resolve the doubts that beset him about the law of this case, He declared his withdrawal from the case
From the allegory, it can be said that Judge Tatting ultimately withdrew from the case because of the overwhelming dissonance he felt after thinking through the issues. He disagreed with Foster on the state of nature issue, but he agreed with Foster that there is precedential value in his theory of self-defense. He however, did not see statutes as having just one purpose, and according to him there are other explanations of self-defense stressing the importance of "non-willful" conduct. But the conspirators acted "willfully." And that is the reason for his confusion. He sees that both perspectives (acquittal and conviction) have equally strong arguments and he cannot decide.
OPINION OF JUSTICE KEEN
At the outset of his opinion, Judge Keen says Executive clemency is a question for the Chief Executive, not for the judges to direct the Chief Executive. He therefore disapproved of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to what he should do in this case.
He said while deciding whether what these men did was "right" or “wrong" "wicked" or "good’ is not for a judge to decide. He should not apply his conceptions of morality, but the law of the land. The sole question before us, therefore, he said, 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. On this count, any candid observer would concede at once that these defendants did "willfully take the life" of Roger Whetmore.  He then proceeded to acknowledge that hard decisions are never popular, but that hard decision may even have a certain moral value by bringing home to the people their own responsibilities toward the law that is ultimately their creation and by reminding them that there is no principle of personal grace that can relieve the mistakes of their representatives, i.e. the legislators.
VERDICT: He found the defendants guilty.
ANALYSIS
Keen J too belonged to the positivist school. He appears to be an advocate of Textualism. He stressed that asking for executive clemency is improper for judges, although they may do so in their capacity as private citizens. He said that the major problem in the case is the failure of others to separate law and morality. Once this is done, one realizes that statutes are not necessarily embodiments of moral thoughts and a decision is much easier.
He said there was a time in the Commonwealth when the judges did in fact legislate very freely. But 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 in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice. Here, he outlines the principle of strict adherence to separation of powers of the three chief organs of government.
Then, he goes into the history of the community, stressing that judicial activism or indeterminacy of interpretation actually was a factor in precipitating a civil war.[20] He also declines to accept the theory that there is only one purpose for a statute. It really is impossible for a judge to divine legislative "purpose." Finally, a hard and harsh decision here is probably good, for it forces the legislature to reconsider the statute. He says it is for the people to remind the Legislature of his mistake and not for the judiciary. The scope of the exception in favor of self-defense as it has been applied by the 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 these defendants
To conclude, it can be said that according to him a law in the form of a law can be enforced if it is a good law or a bad one. And lawyer should think of the letter of the law not personal moral. And the process of the judicial reform requires steps on the part of the Legislature/executive.
OPINION OF JUSTICE HANDY.
Justice Handy believed that law should be what the public wants. He disproved of what he called his colleagues' ability to throw an obscuring curtain of legalisms about every issue presented to them for decision. Judges should not go into positivism or natural law, right or wrong. According to him, since by a poll it was said that the majority populace wanted the defendants to be let off with a token punishment, the judges should comply with this popular opinion.   
According to him government is a human affair, and that men are ruled, not by words on paper or by abstract theories, but by other men. They are ruled well when their rulers understand the feelings and conceptions of the masses. They are ruled badly when that understanding is lacking. Judges need to be in tune with popular opinion. He disapproved of the practice of the courts. He observed- “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.”
According to him, the case before the court was a question of practical wisdom, to be exercised in context, not of abstract theory, but of human realities. He said the most obvious advantage of treating forms and abstract concepts as instruments is that it permits one to go about one’s daily tasks with efficiency and common sense. When these conceptions are applied to the case before the courts, decision becomes perfectly easy. He further added that this case has aroused enormous public interest. In one widely read newspaper chain’s poll, on the question, "what do you think the Supreme Court should do with the Speluncean explorer?” about 90% 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. And this is the decision the judges should give.”
VERDICT: He set aside the verdict and said that the court should follow public opinion.

ANALYSIS
Judge Handy is the judge of practical/popular wisdom.[21] In the allegory, he echoed the views of sociological school of jurisprudence. Practical wisdom is a significant category for Aristotle in his Nicomachean Ethics and refers to the skill needed in life to deliberate and reach decisions (in contrast to theoretical knowledge or practical skill).[22] This judge is very solicitous of public opinion, believing that the legitimacy of the judicial enterprise is because it reflects the will of the people. This aspect has practical implications in our media-driven society. Many a times we see that popular media has had an effect on judges.[23] Further, trial by media has been an issue of hot debate in legal as well as popular circles since some time now.

This was the last of the five opinions. The Supreme Court being equally divided, the conviction and the sentence of the Court of General Instances was affirmed. The defendants were ordered to be hanged.
CONCLUSION AND FINDINGS
Fuller’s case looks at separation of powers issue (through the notion of recommending clemency to the Chief Executive), natural law theory, positivism, statutory interpretation (whether there are "gaps" in statutes and how to "fill" them), the purpose(s) of statutes, the role of precedents and how to use them, the relationship of law and morality, judging as the manifestation of practical reason, various theories of self-defense. All in all it deals with almost all the issues that could be contemplated in mid-20th century.
As said earlier, it is widely believed that Fuller based his case on two real cases. A brief gist of the cases is produced below for the benefit of the reader.
U.S. vs. Holmes (1842)[24]
FACTS:  In 1841, the U.S. immigrant ship William Brown sailing from Liverpool to Philadelphia, sank after hitting an iceberg. 42 people, including the mate and several sailors, found themselves on one of the life boats; after a day or so it began to spring leaks and was sinking. Crewmen, including the defendant Alexander William Holmes, believed that their overloaded lifeboat was in danger of itself sinking and put 14 or 16 passengers overboard to their inevitable deaths in the frigid water. On his return to Philadelphia, Holmes was arrested and charged with murder. However, the grand jury rejected the indictment and substituted manslaughter. The judge in the United States circuit court for the Eastern District of Pennsylvania instructed the jury that necessity might be a complete defence but that "before the protection of the law of necessity can be invoked, a case of necessity must exist, the slayer must be faultless, he must owe no duty to the victim." The jury convicted Holmes and the principle of necessity was not tested by any higher court.
·         Holmes was found guilty and sentenced to six months in prison and a fine of $20; he served the time but did not have to pay the fine, because he was eventually pardoned by President John Tyler.

Regina vs. Dudley & Stephens (1884)[25]
There was another case in 1884 (Queen v. Dudley) which resembles the Speluncean Case even more closely, insofar as it too involved cannibalism, albeit cannibalism on the high seas. The facts of the case are as follows:
·         A yacht sailing from Essex, England to Sydney, Australia sank, leaving four crew members in a 13-foot lifeboat: the captain (Dudley) and the mate (Stephens), and two seamen, Brooks and Parker. Parker was 17 years old and already weak. After several days without food and water, Dudley suggested to Stephens that they conduct a lottery to choose one person to be killed and eaten by the others. Stephens refused. Later Dudley convinced Stephens that they should kill Parker, who was already ill and without family, and eat him. They did so and consumed about half of Parker over the next few days, at which point they were rescued by a German Boat.  The boat put in at Falmouth, England on its way back to Germany. There the men were charged with murder.  The public was on the side of the defendants, so the judge asked the jury for a special verdict: not a finding of guilt or innocence, but simply a finding on the facts.
·       Based on the facts found by the jury, the judge found the men guilty and sentenced them to hang. They were pardoned by Queen Victoria.
As said earlier, when Lon Fuller had put together his Speluncean Explorers hypothetical in the 1940s, there really were only two significant jurisprudential philosophies in the air: natural law and positivism. The former had largely been discredited, but was revived in the hypothetical by Justice Foster, who claimed that the trapped explorers were in a moral, if not geographical "state of nature." It seems that Fuller included a natural law argument in the hypothetical was that the one of the underlying real cases was US v. Holmes, where the defendant's attorneys unsuccessfully tried to argue such a defense for Holmes. Positivism, the other theory, was all the rage in the 1940s. Positivism is a "big umbrella" word, which covers all things from the utilitarianism of Jeremy Bentham to any effort that wants to separate law from morality. Justice Keen is the exponent of positivism in the hypothetical.

Through this allegory, Fuller is seeking consideration of the purposes for which law exists. The varying nature of judgements of the Supreme Court are used to illustrate a variety of approaches to law. The opinion of the Chief Justice seems to be based upon a belief in the significance of executive clemency in appeals against conviction and sentence. Foster J (who accepts Fuller’s own views) draws attention to the importance of the spirit of the law rather than the letter. Tatting J. evades responsibility by declaring his inability to reach a decision. Keen J. follows the philosophy of positivism in separating matters of law and morality. Handy J. advocates a decision which he believes to be administratively convenient and popular.
Through the decision of Foster J., Fuller affirms his belief in the need for intertwining of law, morality and reason in deciding legal questions. Each strand of the process is necessary. Positivism provides a distorted view of law, which is seen as a ‘one-way projection of authority’ – the law is set out and it is the duty of the citizen to obey its letter.
Fuller’s own postscript to the case is of particular significance. The case, he notes, was constructed for the sole purpose of bringing into a common focus certain divergent philosophies of law and government, philosophies which have existed since the time of the ancient Greeks. Even after we have sought solutions to the problems raised in earlier times, the debates will continue. He ends with saying that if there is any element of prediction in the case, it does not go beyond a suggestion that the questions raised here are permanent questions before the human race. This statement, it is submitted here is particularly true. Debates on judicial accountability, judicial activism, separation of powers, role of media, retributive theory of punishment v. reformative theory of punishment are still constant topics of debate and discussions even after 60 years of this allegory. And it seems unlikely that these debates will be settled soon.
It is also pertinent to mention here that D'Amato's "Further Proceedings,”[26] added further proceedings. The author in his article imagines that the decision of the Court was given over to a Committee of three professors’ for review. His article deals with the opinion of these professors. It would not be wrong to mention here the reasons for the article as mentioned by the author himself in its first paragraph
“……………is a classic in jurisprudence. Set in the Supreme Court of Newgarth in the year 4300 the case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Professor Fuller in 1949 are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point- the "rights thesis" as advanced by Professor Dworkin and others. Simply stated, the rights thesis holds that there is a "right" answer, and only one right answer, in every case. The litigants have a "right" to that and finally-to add one more shade of meaning to the comprehensive term "right"-the answer thus arrived at is dictated by general requirements of justice. Since justice is a branch of morality, the "right" answer is not only correct but also right in a moral sense.”


BIBLIOGRAPHY

  1. Bodenheimer, Edgar; “Jurisprudence –the Philosophy and Method of Law”, Universal Book Traders, New Delhi, 1974.
  2. Curzon, L. B; “Q & A Series Jurisprudence”, Cavendish Publishing Limited, London 2005, Third Edition.
  3. Dias, R. W. M.; “Jurisprudence” 3rd Edition, London Butterworths 1970.






[1] From the introduction to Peter Suber, The Case of the Speluncean Explorers: Nine New Opinions, Routledge, 1998, excerpted online at http://www.earlham.edu/~peters/writing/csepref.htm
[2] An allegory is a story with multiple layers of meaning underneath the primary surface story will be found a secondary layer of more profound meaning. Essentially, an allegory seeks to teach a lesson.
[3] Lon L. Fuller, The Morality of Law, New Haven and London: Yale University Press, 1969; [1964]): p. 106
[4] E.g. if there is a statute which says vehicles are prohibited in parks. Fuller would say that the interpretation of the term ‘vehicle’ would depend on the purpose for banning vehicles from the park. For example, if the purpose were to prevent noise pollution, a bicycle would not be a vehicle for the purposes of the law. Because of this focus on purpose instead of meaning, a judge using a natural law interpretation of statutes relies much more heavily on legislative history.
[5] Source –en.wikipedia.com/lonfuller
[6] Views expressed by some authors. Sourced from http://www.libertarian.co.uk/lapubs/legan/legan022.pdf accessed on 7/4/2009.
[7] These cases shall be some detail in the last part of this paper.
[8] Harvard Law Review, vol. 62, no. 4 (1949) pp. 616-645
[9] A judge in the 5-Member Bench of the Supreme Court in the hypothetical. Refer subsequent pages.
[10] The year when the story appeared in Harvard Law Review.
[11] In the words of Fuller himself in the case published I Harvard law Review 1949.
[12] According to him- The language of the relevant statute was well known and it permitted of no exceptions applicable to this case. But sympathies may incline us to make allowances for the tragic situation in which the defendants found themselves. In such a case, the principle of executive clemency seemed ‘admirably suited to mitigate the rigors of the law’. The Chief Justice then proposed that his colleagues should join him in following the example of the trial judge and jury by joining in their communication to the Chief Executive, asking for clemency. He presumed that some form of clemency would be shown to the defendants and, if this were done, then justice would have been accomplished without impairing either the spirit or the letter of the statute and without offering any encouragement for the disregard the law.
[13] Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p. 157)
The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.
Positivists believe in a separation between the law as it is and the law as it should be. They believe law is what it is. And it should be strictly applied.
[14] The natural law view believes that the creation of law should be based on natural laws or common morals. Laws are viewed based on purpose, not on meaning of the words.
[15] Hypothetical. Created by Fuller.
[16] In his judgement, Judge Foster speaks of deterrence, that law of murder is created on law of deterrence. Self-defense being a basic tendency of all beings, therefore cannot be governed under this deterrent rule.
[17] ‘Valjean’ seems to have similarity with the protagonist by the same name of a German novel. There in the novel, protagonist is a 7year old orphan boy. One day out of starvation, he steals a loaf of bread from a shop. He is caught and put on trial. On trial he is found guilty
[18] The important point in Justice Tatting's analogy is that a man is not innocent if he steals bread from a store because he is starving to death, and similar manner these four cannot be said that they were innocent and they killed Whetmore just to save four lives. There is one problem with the argument. It is submitted here that one should use prudence as a form of reasoning, and this analogy has many problems.
[19] He shows two opinions on this case. He seems to agree that the defendants being in the peculiar condition that they were cannot be charged with murder.
[20] Here, it seems Fuller could foretell the possible turf war between judiciary and executive over judicial activism/interference in executive and legislative functions. There is a fire brewing in many countries including India on this count.
[21] He however conceded that there are a few fundamental rules of the game that must be accepted if the game is to go on at all. These include the rules relating to the conduct of elections, the appointment of public officials, and the term during which an office is held. Here he says rules on discretion and dispensation, form, dos and don’ts are essential.
[23] It is widely believed that popular opinion had a big role to play in the convictions in Jessica Lall and Nitish Katara cases. The popular media, TV, print and all played a pivotal role in mass mobilization.
[24] U.S. v. Holmes (1842) 1 26 Fed. Cas. 360
[25] (1884) 14 QBD 273 DC
[26] The Speluncean Explorers-Further Proceedings by Anthony D'Amato, 32 Stanford Law Review 467 (1980) Code A80