10 pages/≈2750 words
The Speluncean Explorer Case Decision And The Relevance Of Legal Theory (Essay Sample)
TO Criticlly discuss The Speluncean Explorer Case Decision and the Relevance of Legal Theorysource..
THE SPELUNCEAN EXPLORER CASE
By (student’s name)
The Name of the Class (Course)
The Name of the School (University)
The City and State where it is located
Facts of the Case
Four cave explorers who belonged to the Speluncean Society had embarked on a cave trip together with the deceased Mr. Roger Whetmore. The Speluncean Society was an organization whose members were cave explorers. Roger Whetmore was also a member of the society and on May of 4299, they made their way through the interior of a cave in the Central Plateau. The mission of the of the five-member team had been to explore the limestone cavern in the Plateau. While inside the cave, a landslide materialized and boulders from the landslide trapped the entrance of the cave thus blocking the only exit from the cave rendering the group of five men prisoners in the cave.
When the five men failed to show up, their families notified the Society's Secretary, who coordinated a search rescue team. From the trails, indications presented that the cave explorers had left traces of which was followed by the rescue group. While at the scene of the incidence, the rescue team noted the overwhelming problem that they faced to rescue the men. Noting this problem the team assembled a huge number of geologists, workmen, engineers, and other experts and the men went straight to work. However, the process of unblocking the entrance of the cave was on most occasions frustrated by the new forms of landslides. The process was so distressful that in the process at least ten men working on the entrance died from the landslides.
The funds which the Society relied on to support the rescue mission were also depleted and this comprised both the amount raised by popular subscription and legislative grant. Due to the rescue process taking considerable time, the rescue team feared that the explorers might die from starvation. What was known was that the group only had minimal provision and that plant and animal life in the cave was doubted. Lucky enough, Whetmore and the group had carried a communication radio and were able to communicate with the rescue team. They inquired as to how long the rescue would take and be informed that by ten days they would be out of the cave. They then inquired from the physicians if they would survive the ten days of the rescue mission. They narrated their condition, and the chairperson of the physician committee replied that the possibility of such survival was extremely minimal. Eight hours after the response the communication between the two groups was distorted and after restoration, the men in the cave requested for the chairperson of the physicians. Whetmore, who was speaking on behalf of the group and himself, inquired whether they would be able to survive if they ate one of them. The answer was in the affirmative.
Whetmore again inquired from the physicians on their advice in casting lots to determine who amongst them their flesh they would consume. The physicians refrained from replying, and Whetmore inquired whether any judge was present within the rescue team to retort to the question but amongst the group none was willing. He went further and asked for either a priest or minister of the government could answer the question but took up that role. The team went ahead with Whetmore encouraging the casting of lots to determine who amongst them they would kill and consume to survive. The radio communication went off, and the men in the cave cast the lots, and Whetmore was the victim. They, therefore, killed and ate him.
From the inquiry, it was noted that on the twenty-third since their initial entry into the cave, Whetmore was killed and eaten by the other members of the group. It was noted that before the lots were cast, Whetmore withdrew from the process and insisted that they wait for at least a week as he reflected before they could do the same. The other members protested breach of faith and continued with the casting of the lots. Whetmore was distraught, and when his turn to cast arrived, a member volunteered, and the group inquired from Whetmore if in case he had objections against the member casting the lot on his behalf but he informed them that he had no such objections. The cast went to him, and the members killed and ate him. After the rescue, they were prosecuted for murder and according to the laws of Newgarth, the defendants were found guilty were meant to face the mandatory death sentence. The sentence was granted according to section 12-A of the Newgarth statute.
The Decision and the Relevance of Legal Theory
Natural law and moral Integrity of the law
According to natural law theory, the law derives its validity from the considerations of moral merits and these are inherent humanity. Therefore, the law and morality represent the fundamental tenets and accordingly the conduct of human is regulated by what is moral and what is not is thus not according to the law. In the Speluncean case, the judgment of the lower court had been predicated on positive law interpretation. The judge interpreted the case as stipulated by the statute and not according to what was moral or not. The natural law legal theory is explicitly brought out by the decision of Justice Foster in the Supreme Court. Foster notes that the law applicable in Newgarth was inapplicable to the defendants while they were trapped in the cave. He pointed out that the law of nature guided posited law by Newgarth and thus derive their validity from the same.
Foster notes that the posited law governed human relations or are enacted to regulate human relations. However, where the circumstance emanates that the human relationship seems impossible, then the underlying reasoning for the law also ceases. Thus, accordingly the enacted law does not apply, and the only applicable law is that which appropriate to the circumstance. The defendants were therefore in a similar situation and accordingly the enacted law should not be applied. The defendants were separated from the jurisdiction of the State by the rock and thus the social contract which mandates the State to provide peace, order and assistance were inapplicable. Therefore, the only applicable law is the natural law which considers the morality of the case. Positive is inherently territorial according to his judgment while natural law is not
Justice Foster again argued that the purposive approach to the law should be highly encouraged. The interpretation of the positive law should be conducted reasonably by the evidence in place and not just as the law states. He propounds the rationale behind self-defense in criminal law. The exceptions in self-defense are only provided for the purpose of that defense and not as expressly declared by the statute. The same rationale, when applied in the Speluncean case, notes that the defendants never presented any element of bad faith when they killed Roger Whetmore but were merely defending their bodies while giving assistance to their bodies. In essence killing the deceased was an act of self-defense. He thus, set the ruling of the Trial Court and provided the purposive approach interpretation to the statute.
The theory of legal positivism is well curved out from the case through the decisions of both Justice Tatting and Justice Keen. Legal positivism emphasizes the application of the social norms as promulgated by the legislature or case law. Thus, the law should be applied as it is indicated in the statute. Justice Tatting reiterated the comments by Justice Foster that the law should be implemented purposively and the purpose for such an application in criminal law was deterrence. Another purposive use was for retribution and as such was imperative as he quoted from the case of Commonwealth v Scales where the outlet for retribution was held to be an object of the law. Chipped in the same case was the element of rehabilitation of the wrongdoer. Tatting J also echoed the doubt that would arise out of the purpose of the law evaluated to be multiple. The application of self-defense in the case could not be justified as well since the defendants had the time to deliberate over the matter for hours unlike instances of self-defense where the circumstances were unexpected. The only shred of credence provided by Tatting J is the call for purposive interpretation of the statute. He believed in judicial precedence but doubted the effect of the precedence of future cases. The doubts as to the purpose and the effect of judicial precedence provided Tatting with conflicting doubts, and he, therefore, rescued himself from the case.
Justice Keen’s ruling represents the hard school of legal positivism. His sense of argument explicitly expresses strong taste of textualism interpretation of the law rather than purposive approach. Keen J notes that the question of deciding whether what the defendants did was wrong or right is not a question for the judge as the judge is guided by the posited law and not the morality of the action. This argument represents the contention by HLA Hart of the issue of separation of the posited law from morality. The separation of the two is in fact, according to Justice Keen, the basis of legislative supremacy. The Parliament makes the law while the courts interpret them and not make laws too. Accordingly, if the law were separated from morality, the interpretation of section 12-A of the Newgarth statute would be easier to apply. The requirement entailed willful killing of which the defendants willfully killed Whetmore, and if such requirement was meant then the law was clear, they had to serve the capital sentence. The harshness of such a decision is up to the legislature to address the loopholes in its laws and not the judiciary and accordingly the court should not usurp such power of the parliament. Therefore, according to Ju...
Get the Whole Paper!
Not exactly what you need?
Do you need a custom essay? Order right now:
- Gender Equality Under The 2010 ConstitutionDescription: This essay was about the trans-formative nature of the 2010 constitution of kenya and how it has encompassed gender equality....1 page/≈275 words| 2 Sources | Oxford | Law | Essay |
- The Speluncean Explorer Case Decision And The Relevance Of Legal TheoryDescription: Four cave explorers who belonged to the Speluncean Society had embarked on a cave trip together with the deceased Mr. Roger Whetmore. ...10 pages/≈2750 words| 25 Sources | Oxford | Law | Essay |
- Discuss How The Law Affects Development In KenyaDescription: This Essay Was About Law And Development And The Task Was To Discuss How The Law Affects Development In Kenya....1 page/≈275 words| 1 Source | Oxford | Law | Essay |