Rechtsfilosofie A / Legal Philosophy A
Alle aantekeningen – alle colleges
,Legal Philosophy A – HC 1
Course Content
Legal philosophy: thinking about law
- Standpoint: judges’ law?
- Interpretation: just law? (rechtvaardig)
Legal v. illegal
- Relevance: without law?
Module A – Case of the Speluncean Explorers – Lon Fuller
- ‘The case was constructed for the sole purpose of bringing certain divergent
philosophies into a common focus of law and government. … (These philosophies
presented men with live questions of choice in the days of Plato and Aristotle.
Perhaps they will continue to do so when our era has had its say about them.) …
If there is any element of prediction in the case, it does not go beyond a suggestion
that the questions involved are among the permanent problems of the human race.’
- Case is about 4 people (explorers) who get stuck in a deep cave after a landslide,
when they run out of food they decide to kill one of their members (Whetmore) and
eat/drink him and his resources. They are finally rescued and are then put before a
judge and are charged for murder
- Cannibalism easy end: should be punished by death
However, much more difficult: after all they killed him to stay alive they had no
choice (not wilful, so they cannot be punished?)
- The Judges [Supreme Court]
Truepenny (Chief Justice) – verdict affirmed
Foster – verdict set aside
Tatting – withdraws (refuses = crime)
Keen – verdict affirmed
Handy – verdict set aside
- How would you decide if you were the judge?
Relevant law: ‘Whoever shall wilfully take the life of another shall be punished by
death’ [par. 12-A N.C.S.A]
- Divided Court:
2 judges (Truepenny & Keen) in favour of conviction
2 judges (Foster & Handy) in favour of acquittal
How do we decide?
o Thinking ‘of law’ (legal doctrine)
o Thinking ‘about law’ (legal philosophy)
Legal Precedents
Lifeboat cases in which a shipwreck at sea was followed by a homicide and legal prosecution
- US v. Holmes (1842)
Homicide to lighten an overloaded lifeboat (throw passengers overboard who
couldn’t sail the ship, kill some people to rescue others)
o Real problem is that there was no fair procedure for who had to die
o He didn’t need all the sailors, he should have held a fair procedure (roll
dices etc., luck should have decided)
o Holmes was convicted
- Regina v. Dudley & Stephens (1884)
, Homicide to feed starving survivors in a lifeboat
o After 19 days on sea a sailor decided to have a procedure who had to die
o Proposal was rejected, nobody wanted to take the risk
o Weakest person was killed and eaten
o Rescued and prosecuted for murder in the UK
o This judge found it unacceptable to kill and eat someone, however: public
opinion found that they should not be punished
o Queen Victoria came along and pardoned them
Conclusions of the Legal Precedents
US v. Holmes
- Emphasis on fair procedure (e.g. lottery) to select those individuals whose shall die
- Sacrificing few to save many?
Regina v. Dudley & Stephens
- Emphasis on the moral wrong involved in killing people (categorical prohibition of
murder)
- Public opinion is strongly opposed to punishing the perpetrators
, Legal Philosophy A – HC 2
Pt. 2 Case of the Speluncean Explorers
Justice Truepenny (Chief Justice)
Verdict should be affirmed
- The ‘language of the Statute’ allows for no exceptions
The Jury followed ‘the only course that was open to them under the law’
- But: the Supreme Court must join the plea for clemency addressed to the Chief
Executive
‘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’
Truepenny thinks they should be convicted, but hopes they will not be punished
Law and justice seem to be in conflict in this case
Pardon by Queen only takes away the punishment, not the conviction
Justice Foster
Conviction must be set aside
- Court should not take a judgment they would be ashamed of
1. Either: (Newgarth) law is not applicable to the Explorers because they were in a State of
Nature / have created a new legal order (a)
- ‘Where the reason for law ceases, the law itself ceases’
- If there are no good reasons for having law, it should no longer exist (validity)
2. Or: If the law is applicable, it must be interpreted in a way that serves its purpose
(deterrence)
- The law should be interpreted in a way that it corresponds with morality
- ‘A man may break the letter of the law without breaking the law itself’
3. To (a): The Explorers are ‘outside’ the Newgarth legal order
I.e. Newgarth law does not apply to this case at all
- Territorially (in ‘a physical sense’): cave, no communication with the outside world
- Morally: the extremeness of their situation ‘removed them from the effect of our
positive law’
- Contractually: agreement in the cave created a new legal order (social contract)
Hobbes: element of preservation of the human being (violent, egoistic)
Locke: voluntary act, human being sociable and hard-working
4. To (b): A conviction would be contrary to the (moral) purpose of the law
I.e. Newgarth law must be interpreted in a way that does justice to the exceptional
situation of the Explorers
- The positive law must be interpreted ‘reasonably’ in the light of ‘its evident purpose’
- If the conviction of the Explorers is upheld, the Newgarth law would no longer
incorporate justice
Justice Foster: The natural law tradition
- Natural law is ‘natural’ in the sense that it is not at the disposition of state institutions
(parliaments, courts etc.)
Alle aantekeningen – alle colleges
,Legal Philosophy A – HC 1
Course Content
Legal philosophy: thinking about law
- Standpoint: judges’ law?
- Interpretation: just law? (rechtvaardig)
Legal v. illegal
- Relevance: without law?
Module A – Case of the Speluncean Explorers – Lon Fuller
- ‘The case was constructed for the sole purpose of bringing certain divergent
philosophies into a common focus of law and government. … (These philosophies
presented men with live questions of choice in the days of Plato and Aristotle.
Perhaps they will continue to do so when our era has had its say about them.) …
If there is any element of prediction in the case, it does not go beyond a suggestion
that the questions involved are among the permanent problems of the human race.’
- Case is about 4 people (explorers) who get stuck in a deep cave after a landslide,
when they run out of food they decide to kill one of their members (Whetmore) and
eat/drink him and his resources. They are finally rescued and are then put before a
judge and are charged for murder
- Cannibalism easy end: should be punished by death
However, much more difficult: after all they killed him to stay alive they had no
choice (not wilful, so they cannot be punished?)
- The Judges [Supreme Court]
Truepenny (Chief Justice) – verdict affirmed
Foster – verdict set aside
Tatting – withdraws (refuses = crime)
Keen – verdict affirmed
Handy – verdict set aside
- How would you decide if you were the judge?
Relevant law: ‘Whoever shall wilfully take the life of another shall be punished by
death’ [par. 12-A N.C.S.A]
- Divided Court:
2 judges (Truepenny & Keen) in favour of conviction
2 judges (Foster & Handy) in favour of acquittal
How do we decide?
o Thinking ‘of law’ (legal doctrine)
o Thinking ‘about law’ (legal philosophy)
Legal Precedents
Lifeboat cases in which a shipwreck at sea was followed by a homicide and legal prosecution
- US v. Holmes (1842)
Homicide to lighten an overloaded lifeboat (throw passengers overboard who
couldn’t sail the ship, kill some people to rescue others)
o Real problem is that there was no fair procedure for who had to die
o He didn’t need all the sailors, he should have held a fair procedure (roll
dices etc., luck should have decided)
o Holmes was convicted
- Regina v. Dudley & Stephens (1884)
, Homicide to feed starving survivors in a lifeboat
o After 19 days on sea a sailor decided to have a procedure who had to die
o Proposal was rejected, nobody wanted to take the risk
o Weakest person was killed and eaten
o Rescued and prosecuted for murder in the UK
o This judge found it unacceptable to kill and eat someone, however: public
opinion found that they should not be punished
o Queen Victoria came along and pardoned them
Conclusions of the Legal Precedents
US v. Holmes
- Emphasis on fair procedure (e.g. lottery) to select those individuals whose shall die
- Sacrificing few to save many?
Regina v. Dudley & Stephens
- Emphasis on the moral wrong involved in killing people (categorical prohibition of
murder)
- Public opinion is strongly opposed to punishing the perpetrators
, Legal Philosophy A – HC 2
Pt. 2 Case of the Speluncean Explorers
Justice Truepenny (Chief Justice)
Verdict should be affirmed
- The ‘language of the Statute’ allows for no exceptions
The Jury followed ‘the only course that was open to them under the law’
- But: the Supreme Court must join the plea for clemency addressed to the Chief
Executive
‘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’
Truepenny thinks they should be convicted, but hopes they will not be punished
Law and justice seem to be in conflict in this case
Pardon by Queen only takes away the punishment, not the conviction
Justice Foster
Conviction must be set aside
- Court should not take a judgment they would be ashamed of
1. Either: (Newgarth) law is not applicable to the Explorers because they were in a State of
Nature / have created a new legal order (a)
- ‘Where the reason for law ceases, the law itself ceases’
- If there are no good reasons for having law, it should no longer exist (validity)
2. Or: If the law is applicable, it must be interpreted in a way that serves its purpose
(deterrence)
- The law should be interpreted in a way that it corresponds with morality
- ‘A man may break the letter of the law without breaking the law itself’
3. To (a): The Explorers are ‘outside’ the Newgarth legal order
I.e. Newgarth law does not apply to this case at all
- Territorially (in ‘a physical sense’): cave, no communication with the outside world
- Morally: the extremeness of their situation ‘removed them from the effect of our
positive law’
- Contractually: agreement in the cave created a new legal order (social contract)
Hobbes: element of preservation of the human being (violent, egoistic)
Locke: voluntary act, human being sociable and hard-working
4. To (b): A conviction would be contrary to the (moral) purpose of the law
I.e. Newgarth law must be interpreted in a way that does justice to the exceptional
situation of the Explorers
- The positive law must be interpreted ‘reasonably’ in the light of ‘its evident purpose’
- If the conviction of the Explorers is upheld, the Newgarth law would no longer
incorporate justice
Justice Foster: The natural law tradition
- Natural law is ‘natural’ in the sense that it is not at the disposition of state institutions
(parliaments, courts etc.)
