Fact of the case: The case involves five explorers who are caved in following a landslide.

They
learn via intermittent radio contact that, without food, they are likely to starve to death before
they can be rescued. They decide to engaged in cannibalism and select one of their number to
be killed and eaten so that the others may survive. They decide who should be killed by
throwing a pair of dice. After the four survivors are rescued, they are charged and found guilty
of the murder of the fifth explorer. If their appeal to the Supreme Court of Newgarth fails, they
face a mandatory death sentence. Although the wording of the statute is clear and
unambiguous, there is intense public pressure for the men to avoid facing the death penalty.
The article offers five possible judicial responses. Each differs in its reasoning and on whether
the survivors should be found guilty of breaching the law. Two judges affirm the convictions,
emphasizing the importance of the separation of powers and literal approach to statutory
interpretation. Two other judges overturn the convictions, one focuses on "common sense" and
the popular will while the other uses arguments drawn from the natural law tradition,
emphasizing the positive approach. A fifth judge who is unable to reach a conclusion, recuses
himself. As the Court's decision is a tie, the original convictions are upheld and the men are
sentenced to death.

Philosophies behind the Judgements

There are many kinds of theories are explicitly connected to the judgments of the Spelucean
Explorers case. In that case there were five judges who had given their judgements and they
argued the reasons behind their judgements. Most commonly their judgements are explicitly
interrelated to different theories. They had followed the statute strictly neither the
philosophies regarding their judgements. So it can be say that the opinions and arguments of
these judges explicitly introduced ourselves about the philosophy behind their judgments.

J. Foster’s judgements and Naturalism

First we have to know that what are the basic components of theory of naturalism. This theory
is based on the two basic theories,

 The state of nature and

 The social contract

The State of Nature: The state of nature means the real or hypothetical situation of human
beings before or without political association. Many social contract theorists, such as Tomas
Hobbes and John Locke, relied on this notion to examine the limits and justifications of political
authority or even the legitimacy of the human society itself. Visions of state of nature differ
sharply to the theorists, although most associated it with the absence of state sovereignty.
Thomas Hobbes defines as the state of nature is characterized by the “war of every man against
every man”. As a constant and violent condition of competition in which each individual has a
natural right to everything except of the others. Existence in the state of nature Hobbes
famously said that is solitary, poor, nasty, brutish, and short.
In absence of a higher authority to adjudicate the dispute, everyone fears and mistrusts
everyone and there can be no justice, commerce no [Link] sustainable conditions come to
an end when individuals agree to relinquish their natural rights to a sovereign authority.
John Locke defines as the state of nature is characterized by the absence of government but not
by the mutual obligations. Beyond self preservation, the law of nature teaches all mankind to
consult each other for being equal and independent. They must not harm another’s life, liberty,
or [Link] believed that mankind are endowed with all kind of rights fir their self
preservation. They are capable of arbitrating their disputes and redressing injuries.
The state of nature Rousseau argued, that could only mean a primitive state proceeding
socialization. It is totally devoid of social traits such as pride envy or even fear of others. The
state of nature is a morally neutral and peaceful condition in which solitary individuals act
according to their basic needs as well as their neutral and peaceful self preservation.

Social Contract Theory: In political philosophy, social contract is an actual, hypothetical

Compact or agreement between the ruled and their rulers as it define the rights and duties of
each. This theory had been developed by Englishmen Thomas Hobbes, John Locke and
Frenchman Rousseau. What distinguished these theories of political obligations from other
doctrines of the period was their attempt to justify political authority on grounds of individuals
self interest and rational consent. They attempted to demonstrate the value and purposes of
organized government by comparing the civil society with the disadvantages of the state of
nature, a hypothetical condition characterized by a complete absence of government authority.
The purpose of this comparison was to show why and under what conditions government is
useful and ought therefore to be accepted by all reasonable people as a voluntary obligation.
This conclusions were then reduced to the form of Social Contract.

So If we analysis the judgement of Justice Foster gave his arguments on the

basis of Naturalist Theory as following:
 The defendants were in a state of nature not a state of society. So Newgrath's normal
law did not apply to them, the law of nature would help them to agree to sacrifice one's
life to save the other four.
 If the laws of Newgrath do apply, then a purposive action must be taken to the statute.
Judge can find an exception to the law by implications. As in terms of self defense.
In his arguments Justice Foster mainly focused on the naturalist theory. In state of nature,
according to Hobbes, which is totally solitude, nasty, poor, brutish and short. In absence of the
higher authority everyone must fight for saving their existence. So, on that ground J. Foster
apply naturalist theory.
The five explorer had gave their mutual consent for lottery system and Whetmore gave the
proposal. so according to John Locke's definition of state of nature J. Foster's argument is
connected to the naturalist theory as in the state of nature in absence of government, the law
of nature teaches mutual consent for their self preservation.
J. Foster's arguments and Social Contract Theory:
According to social contract theory, the government can put obligations to the citizen when the
citizen are in a civil society as the people submit their some of rights to the government
because the government provides essential needs and protection. So, government can’t put
any obligation or give punishment in the state of nature. J. Foster argued that Newgrath’s law
had not this jurisdiction.
J. Handy's Judgment and legal Realism
Legal realism: View of nature of law that legal rules are based on judicial decisions given
in interest of the larger society and public policy, and not any dogma or supernatural
authority. It defines ‘legal rights' and ‘legal duties' as whatever the court says they are.
This view results in absurdity because a judge pondering what rights an accused has.
Justice Handy's theory was one of legal realism. He stated that public opinion polls
showed that ninety percent of the public would vote to acquit the defendants. He argued
that every judges need to act on common sense.
Chief J. Truepenny and J. Keen's judgements and positivism
Chief J. Truepenny and J. Keen were positivist. They only followed the statute of
Newgrath.
Legal positivism: Legal positivism is a philosophy of law that emphasis the
conventional nature of law that is socially constructed. According to legal positivism, law
is synonymous with positive norms, as law made by the legislator is considered as the
common law or case law. It does not imply ethical justification fir a content of the law
nor a decisions for or against the obedience of law.
In legal positivism there is no connection between law and morality, it is the Supreme
Command of the sovereign.
Jeromy Bentham and John Austin regarded as the philosophers of modern
positivism.
In Spelucean Explorers case, Chief J. Truepenny and J. Keen support legal
positivism while giving their judgements on that case.

Chief J. Truepenny argued that,

 The defendants clearly violated the law.
 The court can not take any decision against the existing law.
 The power of clemency is not in the jurisdiction of court.

J. keen argued that,

 The judge should simply apply the words enacted by the legislatives.
 The defendants violated the law.
 A judge can not allow his personal feelings in a judgement.
In this case, legal positivism had clearly been reflected by their [Link] there is
no relation between law and morality. So. Chief J. Truepenny and J. Keen implemented
the concept of legal positivism in their judgments.

Utilitarianism
It is a normative ethics, developed by English philosophers and economists Jeromy
Bentham and John Stuart Mill according to which an action is right if it tends to
promote happiness and wrong if it tends to produce the reverse of happiness. Not only
the performer enjoy happiness by his action but also for his action everyone will be
affected. According to that theory a few people’s need can be affected in order to ensure
the needs of a large numbers of people’s.
So if we relate this philosophy in judgment of J. Foster he argued in terms of self
defense. So according to the utilitarianism theory, the four explorers can eat one
explorers for their utility of being alieved.
As the utility of being alieved of the four Explorers is a greater pleasure than the pain
of one Explorer.

Consequentialism
The doctrine that actions should be judged right or wrong on the basis of their
consequences. The simplest form of consequentialism is classical utilitarianism which
asserts that an action is right or wrong according to whether it maximizes the net
balance of pleasure over pain in the universe.
As the consequentialist believed that individuals action must be judge on the basis of
consequence of their acts.
So in Spelucean Explorers case, the four Explorers saved their lives killing one Explorer.
So according to this philosophy the ratio of pleasure over pain is 4:1

Categorical Imperatives
This concept rely on the social norms that men are naturally introduced to the act which
is right or wrong and for wrong doing they have to be punished.
German philosopher Immanuel Kant argued that the supreme principle of morality is a
standard of rationality that he dubbed the “Categorical Imperative” . Kant characterized it as an
objective, rationally necessary and unconditional principle that we must always follow despite
any natural desires or inclinations we may have to the contrary. All specific moral requirements
are justified by this principle, which means that all immoral actions are irrational because they
violate this.
So the five Explorers can be punishable as the violate the categorical imperative despite the
other four Explorers are known that they are committing a crime.

Citations
1. Harvard Law Review, The case of Spelucean Explorers.
2. Harvard Jurisprudence Lectures # YouTube
3. [Link]/ Introduction to jurisprudence, The Spelucean
Explorers case, Positivism and Naturalist Theory.
4. [Link]
5. [Link]
6. [Link]