Further Speluncean Thoughts
Bill Long 8/31/05
Professor D'Amato's Three Law Profs
When Lon Fuller 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." I think the reason 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 (discussed by Professor Thri) to any effort that wants to separate law from morality. Justice Keen is the exponent of positivism in the hypothetical.
In the intervening generation between Fuller's hypothetical and D'Amato's "Further Proceedings," a major voice emerged in our jurisprudence: Ronald Dworkin (b. 1933). He was dissatisfied both with a pure natural law approach (which would link law and morality) and positivism, and so he developed what he referred to as his "rights" approach. Unlike the positivists, Dworkin believed that judges should seek solutions that were both morally and legally correct but, unlike the natural law theoreticians, God or the state of nature had nothing to do with it. The purpose of the judge is to weigh the tradition, the facts of the case, the law of the people, and like Hercules, come up with the "right" answer. This search for the "right" answer, rather than fidelity to the statute or divining of original intent, is therefore of paramount importance.
Professor D'Amato's Professors
All three professors composing the panel giving clemency recommendations to the governor were influenced by Dworkin's approach, but each of them joins it with other points, too. For example, Professor Wun declares his/her belief "that matters of right cannot be separated from matters of law." This would historically have been consistent with a natural law approach, though Professor Wun makes no mention of God of or a social contract. Wun streses that the explorers had no right to kill Whetmore because they couldn't force him either to participate in the lottery or to abide by its results. Yet, s/he goes on to suggest that if a neutral instrument of killing was available (pills, for example) and less than all of them decided to participate in such a lottery to determine who would die, none of the survivors would be culpable of the loser's death. When Whetmore withdrew, the chances of each other explorer's death went up 5% if they all decided to participate in the lottery, but he should not be criticized for this decision. The central legal principle for Wun is that property rights are far different from "life rights;" i.e., whereas you might forcibly be able to take food from one of the participants to sustain life if he was hording it from the others, under no circumstances would forcible taking of life to sustain others' lives be either moral or legal. He tries to distinguish and explain the Valjean case--a bit of a stretch, in my judgment. A question arises: Would it be murder if no pills were available, all agreed to participate in the lottery, one of the explorers "lost" the lottery and he was killed by the others? Wun's reasoning is unclear here, in my judgment.
Professors Thieu and Thri
Both Thieu and Thri focus on an aspect of the case ignored by Wun, and that is the enterprise of the explorers as a group. Paraphrasing Aristotle's famous dictum that "man is a political animal," Thieu takes guidance from nature to suggest that the thing most prized and most necessary to protect in animal or human groups is the group existence itself. Groups arrange their activities to make sure that survival of the group is possible in the next generation. Thus, it is not so much that any of us has the "warner" or the "leader" gene within; what matters is that these roles are willingly taken up by members of the group when a warner or leader is necessary.
Thieu then briefly takes up an argument that has been a staple of jurisprudential thinking since David Hume (18th century), that an "is" doesn't imply an "ought." Hume meant by this that nothing in the state of affairs as described carried with it a moral obligation to do anything. There is a distinction between a descriptive and a normative statement, and, for Hume, you can't logically get from the former to the latter. Thieu would argue that since human life exists it ought to exist--deriving the ought of continued existence from the is of current existence (even though he argues in the alternative if "ought" cannot be derived from "is"). His ultimate "moral imperative" is that "one may not destroy the possibility of reproduction." Hence, any decision to kill a member of the group, arrived at in any way, was legitimate, as long as it contributed to the perpetuation of the group's existence.
Professor Thri takes issue with both Wun and Thieu, characterizing them as "utilitarian" approaches. This is a philosophy associated with Jeremy Bentham ("the greatest good for the greatest number"), and suggests, as Thri points out, that if something benefits the "greatest number" of people, it can and ought to be done, regardless of whether it might or might not be "just" according to another calculus. S/he does agree, however, that the group is the decisive factor here. Though everyone could be forced to participate in the lottery (by simply joining the group you "buy into" such a participation), they could not be put to death by the others, because putting to death exceeds the authority of others. But then Thri points to an inconsistency with Wun: if Whetmore withdrew and then one of the others was killed, he still would have a claim on the food provided by the dead body, since the body would not be a "life" anymore; it would be "property," and property may always be taken to sustain a life.
And so ends our hypothetical, where we encounter natural law, positivism, problems of separation of powers, issues of statutory interpretation, the role of history, the precedential value of cases, and the nature of the "right" decision to be made in this case. It is a good start for our endeavors.
Copyright © 2004-2007 William R. Long