[2.1.3.] The Opinion of Justice Truepenny.

 

·         The jury found that if the defendants killing Whetmore under the described conditions meant that they are guilty, then they are guilty. The judge then found them to be guilty.

·         In making these findings the jury and judge followed “the only course that was open to them under the law,” and what they did was both “fair and wise.” The relevant statute (“Whoever shall willfully take the life of another shall be punished by death”) leaves room for “no exceptions applicable to this case.” [If read strictly, it permits of no exceptions whatsoever.]

·         Whatever emotional responses we might have to the case are irrelevant.

·         The principle of executive clemency, by which the chief executive can commute or reduce the sentence of a convicted criminal, is “admirably suited to mitigate the rigors of this case.” Judge Truepenny proposed that the court “follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive.”

·         He also says that it is likely that the chief executive will give the convicted clemency, and says: “If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.” (52)

 

Truepenny upholds the ruling of the trial judge: the spelunkers are guilty.

 

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Justice Truepenny seems to adopt legal positivism. His very last comment indicates that he believes that the law can be followed to the letter without it resulting in justice.

 

He also seems to behave as described by legal formalism. He seems to think that the defendants’ guilt follows straightaway from the statute as it is formulated and that the emotional responses of the jury and judge should play no role in their decisions.

 

Is turning over the responsibility to the chief executive a cop-out?

 

 

[2.1.4.] The Opinion of Justice Foster.

 

The law itself is on trial in this case. If it is found that these men are guilty under the law, then this will show that there is something wrong with the law itself. “For us to assert that the law ... compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate justice.” (52, emphasis added)

 

But the men should not be found guilty under the law, for two reasons.

 

·         Reason one: the positive law [i.e., the law exactly as it has been enacted, including case law and statutes] does not apply to this case.

 

When the killing occurred, the men were not within the jurisdiction of positive law. This is because “our 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 has ceased to exist.” (53)

 

The defendants were not in a “state of civil society” but rather in a “state of nature.”

 

There is a law that is applicable to them, but it’s not the positive law. It is the “law” that they enacted for themselves when they all agreed to participate in a lottery.

 

Foster is clearly a social contract theorist (like Socrates, Hobbes, Kant and Rawls). But his social contract theory is not based on a thought-experiment about a hypothetical contract. He points out that, in their Commonwealth, there is an actual historical agreement into which their forebears entered to create their society. That agreement was no longer in effect in the cave, but the defendants entered into a new contract, one that was just as binding on them.

 

“If we can find no higher source for our legal order, what higher source should we expect these starving unfortunates to find for the order they adopted for themselves?” (53)

 

·         Reason two: even if reason one is completely wrong, and the defendants were still subject to the positive law, still, they did not break that law.

 

Clearly, the men violated the positive law if that law is understood literally. However, “...a man may break the letter of the law without breaking the law itself.” (54)

 

So how do you know whether someone who has broken the letter of the law has also broken the law itself? “Every proposition of positive law, whether contained in a statute or a judicial precedent, is to be interpreted reasonably, in the light of its evident purpose.” (54)

 

E.g., the statute in question has been interpreted so as not to include killing in self-defense, even though there is nothing in the wording of the statute that would allow this. This exception “cannot be reconciled with the words of the statute, but only with its purpose.” (54)

 

One of the main purposes of the statute forbidding murder is to deter people from committing crime. A law which outlaws killing in self-defense would not perform this function, because people would still act to repel attackers, no matter what the law were to say. “Looking therefore to the broad purposes of criminal legislation, we may safely declare that this statute was not intended to apply to cases of self-defense.” (54, emphasis added)

 

The same reasoning applies to cases like that of the speluncean explorers. So, read “intelligently,” the statute does not apply to this case.

 

Foster concludes by writing that the decision of the trial judge should be overturned: the spelunkers are innocent!

 

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Judge Foster seems to assume natural law theory. His view in reason 1 seems to be that the positive law ceases to be law for the men in the cave, because, in that situation, the facts change the moral standard against which positive law is judged to be law.

 

He seems to adopt legal realism, or at least to reject legal formalism. In interpreting the law he takes into account the purpose behind the framing of the law, going well beyond the law as it is actually stated.

 

 

[2.1.5.] The Opinion of Justice Tatting.

 

Tatting begins by implying that he wishes he could decide the case as a legal formalist says judges ought to, by putting aside his emotions (which include both sympathy and abhorrence) and issue a ruling based on “a convincing and logical demonstration of the result demanded by our law.” (55)

 

Unfortunately, he says, he was not able to do this. [Does this suggest that legal formalism sets a standard that, at least in some cases, it is impossible for a judge to live up to?]

 

Despite this beginning, Tatting’s opinion does not provide an alternative, positive view to those of his colleagues. Rather, it serves primarily to criticize Foster’s view. He makes the following criticisms:

 

1. Foster’s opinion raises many questions for which there are no answers.

 

For example,

·         exactly why are the men in a state of nature? (thickness of the rock? hunger?)

·         exactly when did they enter that state?

These questions suggest the more general question: how do we know when a positive law has ceased to function as law? It’s one thing to say that positive law must meet some moral standard in order to be law at all; it’s another to say in general terms what that moral standard is.

 

2. If Foster is right, then this court has no authority over what happened in the cave.

 

Even if the defendants were operating under a “law of nature,” this court could not rule about it, since it has no authority under such a law (Tatting says: “Certainly we are not in a state of nature.” p.55)

 

3. The law of nature that Foster assumes is “topsy-turvy and odious.”

 

It is a code in which the law of contracts is more fundamental than the law of murder. It is a code under which a man may make a valid agreement empowering his fellows to eat his own body. Under the provisions of this code, furthermore, such an agreement once made is irrevocable, and if one of the parties attempts to withdraw, the others may take the law into their own hands and enforce the contract by violence—for though my brother passes over in convenient silence the effect of Whetmore’s withdrawal, this is the necessary implication of this argument. (55)

 

Foster’s view also implies that had Whetmore killed the others in self-defense, he would be the murderer, not them. Whetmore’s self-defense would not be justified under the natural law that Foster assumes, since his companions’ attempt to kill him was justified.

 

Tatting ends by refusing to issue a decision and withdrawing from the case.

 

 

 

[2.1.6.] The Opinion of Justice Handy.

 

Handy makes the following points (quotations from p.56):

 

·         “The problem before us is what we, as officers of the government, ought to do with these defendants. That is a question of practical wisdom, to be exercised in a context, not of abstract theory, but of human realities.” This, as well as all of the following points, constitute a fairly straightforward example of legal realism.

·         “[G]overnment is a human affair ... 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 should “treat forms and abstract concepts as instruments. We should take as our model the good administrator, who accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited to reach the proper result.”

·         It is important that a judge do his or her job with “efficiency and common sense,” and the method just described permits this.

·         Judges should take into account not only public sentiment, but facts about what will happen as a result of their rulings. E.g., we should take account of the fact that the chief executive (because he’s elderly and “of stiff notions”) will almost certainly refuse to commute the sentence if the justices uphold the guilty verdict.

 

Judge Handy’s conclusion is the same as Fosters: the defendants are not guilty of the crime of murder.

 

 

 

Stopping point for Monday February 5th. Next time will be a review of all the material we’ve covered so far. Your first test is Friday.