By Paul Mark Sandler
BridgeTower Media Newswires
The year is 4300. Defendants on appeal are convicted of murder, sentenced to hang. They seek reversal from the Supreme Court of Newgarth. (“The Case of the Speluncean Explorers,” Lon Fuller, Vol. 62, Harvard Law Review 616 (1949).)
Consider yourself the sixth judge deciding the case. Let’s review the facts:
Five men are trapped in a catastrophic mine cave-in. All appreciate their lives are at risk by starvation. They have no food. Their rescue is beyond the time of their life expectancies without food. This is according to the people on the outside above ground with whom they have spoken via radio. They are desperate.
One of the cave explorers, Roger Whetmore, suggests they obtain food to survive by drawing lots to determine which of them will be sacrificed to be consumed by the others. They had been advised via radio it was doubtful they could be rescued before they would perish from starvation.
After discussion, they agree to use dice, but before the dice are cast, Whetmore withdraws from the arrangement. When it is Whetmore’s turn to throw the dice, one of the defendants does so for him. The throw goes against Whetmore. His life is sacrificed.
His friends survived, but not for long unless the Supreme Court reverses the death penalty for the murder of Roger Whetmore. Sentence was imposed by the lower court on the basis that the applicable statute provides: “Whoever shall willfully take the life of another shall be punished by death.” The statute does not allow for any exceptions.
Your colleagues weigh in, expressing views reflecting mid-20th-century legal philosophy, e.g., natural law, legal positivism and legal realism. One of the five justices withdraws, with the vote to affirm or reverse even at 2-2. You are now the deciding vote. Here is a summary of what each justice opines:
Chief Justice Truepenny, a legal positivist, explains that the statute is clear and unambiguous. There is no option but to affirm the conviction. But he does suggest that the spelunceans seek clemency from the executive branch of the government, and the court should join in the petition.
Justice Foster, a believer in natural law, votes to reverse, taking the view that the “… positive law is inapplicable to this case, and that the case is governed instead by what the ancient writers … called the law of nature … e.g., self-defense.” (He concludes that the spelunceans were not in a state of a civil society, but in a state of nature. Here defendants acted willfully with determination.)
Justice Keen, leaning toward legal positivism, affirms the conviction. He points out that the moral issue of whether what the men did was right or wrong is not pertinent to deciding the case. The statute is clear: They are guilty. The fact that colleagues do not like the law is irrelevant.
Although Justice Tatting withdrew from deciding the case due to competing rationales, articulating that he cannot resolve the doubts he has about the law of the case, he does, however, criticize the views of his colleagues. He points out that a person who acts to kill another in self-defense does not act willfully. Rather, he or she acts in response to an impulse in human nature.
Justice Handy is “amazed” at the opinions of his colleagues and their references to positive law and the law of nature. Instead, public support for the men as well as common sense lead him to vote for acquittal based on realism.
He rejects the thinking of his colleagues, and advocates using common sense and the popular will, as evidenced by a poll showing that 90% of the people want to let the defendants off with little or no punishment. He suggests achieving this result by using whatever legalistic device seems most adaptable to the occasion. (Perhaps Oliver Wendell Holmes’ comment that the life of the law is not logic but the felt necessities of the time is what is in his mind.)
Before making your decision, which will be determinative, you should be aware that there are actual cases and incidents in legal history involving cannibalism. The overarching issue in these cases that proceeded to trial is whether necessity beyond self-defense under the law is a valid defense to murder.
See, for example, the English case Regina v. Dudley and Stephens (1884) in which the defendants were on a lifeboat with no hope of survival. They killed the sick cabin boy for food and survived. They were tried and convicted of murder on the basis that necessity was not a defense to murder. Subsequently, they were pardoned.
Consider also the 19th century sinking of the ship Essex by a great whale. Survivors resorted to cannibalism. The terrible incident inspired Melville to write “Moby Dick.”
So, what is your decision?
Paul Mark Sandler, trial attorney and author, can be reached at [email protected]