Is Killing to Survive Ever Justified? – a Case of the Speluncean Explorers



While the year 2020 has been quite an eventful one for Hong Kong with the coronavirus and the protests, it just goes to show how resilient and adaptable Hong Kong people are. However, for the students stuck at home with an abundance of time, it is hard not to let the mind wander to what Hong Kong might be like in the future.


While it can be very exciting to think about future technological milestones and how the world will advance, as a law student, there are some issues that are particularly of my concern regarding Hong Kong’s future. Most of the city might know the year 2047 as a turning point for Hong Kong, with the handover and its implications. Though I am sitting here writing this article with a long list of video-recorded lectures to catch up on, I can’t help but wonder what our city would be like if the Chinese legal system was implemented in Hong Kong. Particularly, what would happen if the death penalty was imposed?


Regardless of the death penalty being moral or immoral, I can’t help but imagine what it would be like if my right to live were to be decided in the hands of the judiciary, which is the reality for most countries.


In this little thought bubble, the prospect of a legal yet morally conflicting criminal case came to mind. What does happen if an action, which technically is a crime, has been committed but is seemingly morally justified? My thoughts on this came about when I was reading a text for my legal jurisprudence course named: The Case of the Speluncean Explorers by Lon Fuller.


When you first read the title, you might think ‘what is a “Speluncean’’?. Well, spelunking is the act or hobby of exploring caves, thus a spelunker is a person who participates in the act of spelunking. Fuller wrote this fictional piece in order to explore the different ways a judicial system can react to a morally conflicting criminal case. The text is based on a real criminal case R v Dudley and Stephens, where a group of men were stranded at sea and had to eat their crewmates in order to survive. In that case, the English courts decided that the necessity of staying alive did not provide a defence to the act of murder.


Similarly, but not any less grim, Fuller explores how a judicial system operates and handles a difficult yet delicate subject regarding the legal consequences of men acting on their fundamental primal urge to stay alive.


The Case of the Speluncean Explorers




The story follows a fictional scenario set in the year 4300, whereby a group of spelunkers were trapped in a cave with no food. Luckily, they were able to communicate to the outside world through a radio transmitter. Later, they learned that they would probably die before the rescue team ever reaches them. With dim prospects of survival, the men asked a physician through the radio whether they would survive if they engage in cannibalism. The physician reluctantly replied “yes”.

After learning this, one of the trapped men - Roger Whetmore, used the radio to ask whether or not the men should draw lots to see who should be eaten. Neither a doctor, a judge or a minister chose to reply.


32 days had passed and it had been discovered, much to the dismay of the rescue team, that Whetmore had been eaten. It turned out that the men did in fact decide to draw lots but Whetmore had withdrawn in the moment before the lots were cast. The other men grew angry at Whetmore and decided to draw his lot for him. Before the men did so, they asked Whetmore whether he believed the drawing of his lot would be unfair. Whetmore did not object, and his lot went against him. He was promptly put to death and eaten.


When the men were rescued, they were charged with murder under a law that stated:

“Whoever shall willfully take the life of another should be punished by death”


In the first trial, the men were sentenced to death since the courts simply followed the rule by its plain meaning. However, after the verdict, the jury asked the Chief Executive to commute the sentence from the death penalty to imprisonment. The main exercise of the article, however, is to explore various ways that different jurisprudence would deal with the situation. Each different school of thought is represented by a judge.


Chief Justice Truepenny


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


First, we meet Chief Justice Truepenny. The Chief Justice agreed with the outcome of the first trial, emphasizing that there is no exception applicable to this case. However, Truepenny mentioned that the case could be appealed to the Chief Executive and the men could ask to be excused. This means that the justice system could save the men from the death penalty while staying faithful to the law.


Although this judgment might seem like a good way to have your cake and eat it too, it still faced a fair share of criticism from the other judges. This was mainly because the judiciary should not be concerned with the functions of other government branches. In my opinion, if the Chief Justice did end up relying on the Chief Executive to ‘bail’ the men out of their predicament, it would set a precedent in undermining the purpose of the justice system, which is to assess the situation fairly and impart the appropriate sentence for those who are deemed guilty. It begs the question that if another situation like this were to happen, would we need to ask the Chief Executive to pardon the case again? There would be no end to cop outs and would inevitably compromise the justice system.


Justice Foster


“I believe something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our Commonwealth.”


The second judgment comes from Justice Foster. He stated that the men were not guilty and based his judgement on the following two arguments. The first argument, Foster explained, is that the written law of the nation could not be applicable to the men in that situation. This is because the written law is only able to function in a society where men can coexist with each other. Foster argued that because the men were trapped in a life or death situation, the written law was no longer applicable. The binding force of the law loses its power once men are no longer able to coexist. Therefore, the men did not violate any laws because there were not any laws to violate in the first place. Foster argued that the ability to coexist went out the window because first, they were geographically outside the borders of the nation and second, they were no longer living by the rules of civil man but by the rules of a survivalist.


Foster also put forward that even if the criminal law did apply, the men would still be innocent. This is because written law must be interpreted reasonably in light of its purpose. He brought up the idea of self-defense. If we interpret the law literally, self-defense resulting in death would be a crime. Yet, this is not the case in real life. Foster basically argued that the original law-makers could not have possibly meant for any men in life or death situations to be deemed guilty.


Justice Tatting


“As I analyze the opinion just rendered by my brother Foster, I find that it is shot through with contradictions and fallacies.”


After first reading Foster’s judgment, it seemed convenient that there were so many loopholes within his judgment, but I could not quite put my finger on why. That was until I read Justice Tatting’s judgment, my favourite of the judges, in which Tatting proceeded to completely scrutinize Foster’s judgment.


Tatting attacks Foster’s opinion, asking when exactly had the men transition from a civil society to a state of nature? Was it when they were first trapped? When they drew lots? When they started to feel hungry? Tatting points out these uncertainties and ambiguities in Foster’s argument and criticizes them.


He also moved on to attack Foster’s second argument. While we may prioritize the purpose of the law over the words itself, what do we do when the law has multiple purposes?

He attacks the idea of self-defence by explaining the fallacy of allowing exceptions and the resulting inability to draw a line?


Tatting pokes more holes into Foster’s judgment, bringing up further examples of situations where Foster’s argument would result in ambiguous conclusions. What if Whetmore had refused to participate from the beginning, would his lot still have counted? What if Whetmore was the only religious man? If he was then he would believe in an afterlife, while the other men didn’t, which should justify why Whetmore should die since he would go to heaven? These gaps in his logic would serve to prove the unreliability of Foster’s argument.


The most amusing part is that after all this deliberation, Tatting ends up withdrawing and not putting forward a statement on whether or not the men should be charged guilty. I believe the reason for his withdrawal is to illustrate that while judges might be portrayed as all-knowing or all-just, the reality is that they are still human. It makes sense to me that while one person may see the flaws in another’s argument, it does not necessarily mean that they have the solution themselves. Tatting’s withdrawal serves as a reflection on certain realities in a justice system – sometimes people just don’t really know what to do.


Justice Keen


“A hard decision is never a popular decision”.


The next judgment is from Justice Keen. To sum up, he asked what does the law say and what does it mean? It means anyone who willfully takes the life of another should be put to death. Did the men do that? Yes. Therefore, they should be put to death. Book closed. End of story. Keen brings to light the fact that the other judges are morally conflicted with this decision but affirms that guilty is the right verdict. Keen also states that a clear-cut decision is best in the long run because if we resort to any purpose-based interpretation of the law, the justice system would have troubles deciding the next morally conflicting case. To me, this is one of the classic and most traditional ways of interpreting the situation. It is a very by-the-book ruling, which introduces a sense of stability and certainty into any justice system. Just imagine what the legal system would look like should every judge try to find loopholes and create imaginative principles in order to arrive at a result that they see as just - our legal system would collapse.


Justice Handy


“When the case is approached in this light, it becomes, I think, one of the easiest to decide that has ever been argued before this Court”.


Lastly, Justice Handy expressed amazement towards his fellow judges’ in their tormented analysis of the case. Handy simply puts forward the argument that the people should decide what happens to the men. This is because public interest plays an important role in places such as the jury and the election of men. Handy emphasizes the importance of giving the common people what they want or risking the credibility of the government. People are ruled by people. A good ruler listens and understands the will of the people. I believe that Handy’s judgment is one that reflects a true democratic society. It is one where we can put trust in the public and their opinions in tricky situations such as this one. However, this does give rise to the possibility of discrimination against the minority. It gives rise to the question of how we can listen to the people if the majority thinks one way, while the minority thinks in another way? It would be hard to see this implemented in a realistic society, such as one as diverse as Hong Kong, with many people coming from different backgrounds and beliefs.


Handy’s verdict: not guilty.


What now?


The Case of the Speluncean Explorers showcases the different methods and schools of thought that many legal philosophers follow. Whilst a situation like this may not pop up in real life anytime soon, we must not forget that it had and that it might.


As indicated from the text, legal philosophy is widely subjective. Most of the responses from the judges, while fictional, are based on each individual’s personal beliefs and values. With one hand - strictly upholding the letter of the law to the prioritization of justice to the other - the human predisposition to empathy, it is hard to determine which of judgments and its implications are objectively correct. The Case of the Speluncean Explorers strives, and might I say succeeds, to showcase the intricacies and inferences a single judgment may have.


This text, to many of my classmates, may just be final exam material. However, to me, it reminded me that while judges might be presented as decisive and impartial, in reality, they are just humans. Should our legal system adopt China’s in 2047, this seemingly fanciful situation may possibly come to light. The delicate relationship between the death penalty and treading the line of morality and legality is put under the spotlight through Lon Fuller’s The Case of the Speluncean Explorers. Personally speaking, I am quite fond of Justice Handy’s argument. The government and the nation are built on people. From elections to court juries, the common person is the building block of our civic society. Having said that, the feasibility of implementing this judiciary ideal in Hong Kong is questionable, given that democracy is the cornerstone of this type of society and due to the fact that Hong Kong is filled with people from many different backgrounds who may have conflicting opinions.

Now I would like to pose a question to you. If you were a judge, how would you decide?


Citations:

https://pennstatelaw.psu.edu/_file/TheCaseOfTheSpelunceanExplorers.pdf

http://www.e-lawresources.co.uk/cases/R-v-Dudley-and-Stephens.php