The Case Of The Speluncean Explorers

1740 Words7 Pages
This essay discusses the theoretical position of the five judges in Fuller’s ‘The Case of the Speluncean Explorers’ and compare the best embodiment thereof to the decision in R v Dudley and Stephens, upon which Fuller’s article is largely based. Whilst direct references to writings of the relevant theorists will be made, no critique of either the judges’ decisions or the theoretical positions thereof will be offered, nor will lengthy definitions of theoretical positions be provided. Background: Fuller’s mythical case was constructed on stipulated facts with one single applicable statue devoid of legislative history, ‘whoever shall wilfully take the life of another shall be punished by death’ thus leaving no room for argument over facts or legislative materials. Five speluncean explorers were trapped in a cave for thirty-two days without food, water or expectation of imminent rescue. The explorers unanimously decided to kill one man to provide nourishment to the survivors, with the fate of the condemned to be decided by rolling a dice. After the dice were rolled but before execution, the condemned man changed his mind and withdrew from the communal decision. The surviving four men executed the plan, only to be rescued shortly thereafter and tried for murder with Truepenny CJ, Foster, Tatting, Keen and Handy JJ presiding. The vote of the court was 2 – 2 with Tatting J withdrawing, thus affirming the decision of the trial judge and resulting in the men being sentenced to
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