The paper is written by Lon L. Fuller in 1949.
Background:
- The 4 accused were trapped in a cave along with Roger Whitemore, without food, while rescue efforts were underway. Medical experts advised that there was a little possibility for the five to survive 10 additional days without food. Roger Whetmore initially suggested that they should kill and eat one of the members of their group for survival.
- No rescuer, doctor, judge, member of government or priest offered advice when Whetmore asked how to decide who should be killed. They decided on throwing dice. However, Whetmore backed out and the others threw the dice for him.
- The four accused killed and ate Roger Whetmore.
More facts:
- During rescue efforts, 10 rescuers were killed by landslides.
- Explorers were rescued on the 32nd day and Whetmore was killed on the 23rd day.
- It seems all might have survived if they had not cannibalized Whetmore.
Law:
- Whosoever shall willfully take the life of another shall be punished by death.
Schools of thought:
- natural law theory
- consequentialists
- right theorists
- feminists
- positivists
- textualists
- purposivists
- realists
- pragmatists
- contextualists
- critical race theorists
- minimal & process theorists
Trials: The 4 defendants were sentenced to death, but they appealed to the higher court.
Chief Justice Truepenny – guilty, because “law to be law”. Positivist. Law must be followed through, but the Chief Executive can give clemency. Law is self-contained.
Chief Justice Foster – acquittal. Natural law theorist. 1) We have laws for a reason and if that reason disappears, the law disappears. The law is used to justify something else. 2) Also, if it is not wrong for the rescue workers, 10 died, to attempt to save 5 lives, why is it wrong for 4 explorers to carry out an arrangement which would have saved four lives at the cost of 1? 3) lastly, this is a self-preservation case where the 4 had no choice but to kill 1 in order to survive.
Chief Justice Tatting – recuse himself from the case, but he is critical of Justice Foster’s natural law position. 1) Justice Tatting argues that if self-preservation exists in the 4 explorers, then how does it not exist in Whetmore when he was approached by the 4? In other words, if the 4 explorers can claim self-preservation, then Whetmore would not be able to claim self-defense had him killed one of the 4 explorers. 2) in the case of Commonwealth v. Valjean, if hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man? 3) self-preservation is an impulse to protect yourself in the case of danger. But in this case, the defendants acted willfully and with great deliberation after discussing the matter, therefore, it is not self-preservation.
Chief Justice Keen – Positivist. Law and morals should be separated. Guilty and is critical of directing the case to Chief Executive for clemency. 1) Justice Keen is also critical of Justice Foster’s self-preservation because the scope of self-preservation is applicable in cases of resisting an existential threat to the party’s own life whereas Whetmore post no threat to the other explorers.
Chief Justice Hardy – pardoned the defendants because he takes into account polling data as per which 90% of the people believed that the men on trial should be pardoned.
Verdict
- 2 acquited, 2 convicted, 1 recused. The original court decision of conviction is upheld.
Further proceedings:
- Professor Wun does not favor clemency. In order to increase their own possibility of staying alive, the 4 murdered Whetmore willfully out of self-interest because they included Whetmore into the game when Whetmore has opted out.
- Professor Tieu favors clemency. He argues that the law is not an absolute order. If the four explorers are put to death after the court’s original decision to be upheld, then the executioner should also be guilty by violating the statute “whosoever shall willfully take the life of another shall be punished by death”. He argues there are rare instances where the law does not apply.
- Professor Thri recommends sentencing the defendants to years of compulsory service in a medical facility where they can save lives. He believes the defendants are neither guilty or innocent.
Contemporary Proceedings (presents 7 additional views):
- Justice Naomi R Cahn and Justice Mary Coombe, both feminists, suggest retrial and jury verdict.
- Justice Calmore, a critical race theorist condemns death penalty
- Justice Green confirms the conviction because he believes in the case of Commonwealth v. Valijean, the impoverished defendant was convicted of the crime, then the 4 explorers, who are in the upper class, must also be applied with the same law and be found guilty.
- Justice Miller, Justice Paul and Justice W stein reverse the conviction. The first on moral grounds. The second doesn’t believe a crime is committed. The third by an appeal to moral intuition and failure of the judiciary to have given an opinion when the defendants were in dilemma.
- Consequentialists – the consequence is that sacrificing one person’s life can save four people’s lives. This is more beneficial to the whole group.
- Legal Realism – should not just look at the case alone. Must consider its effects on society. If all rapists are sentenced to death, then there will be more murder cases than rapes. The principle of modesty is to use the minimum sentence to exchange for a better outcome in society.
Nine New Opinions – by Peter Suber’s (9 more views)
- this is a case of preventive killing
- one should die, not kill
- maintaining a dichotomy between law and morals
- a feminist legal theory arguing for acquittal, probably we would have acted like the defendants did
The case Revisited – A fiftieth Anniversary Symposium (6 more views)
- Cass Sunstein, a textualist, supports conviction by noticing no absurdity will result to read the statute as such
- Alan M Dershowitz argues “whatever is not forbidden” is permitted. He would acquit the accused.
Things to take away
- Natural Law Theory – To pursue justice in nature. Law must comply with morals.
- Legal Positivism – Law procedures must be followed and obeyed. Morals do not influence law.
- Legal Realism – The outcome is the group is greater than from an individual. Law is to serve society.
Benc Tan 