The Case of The Speluncean Explorers

When the explorers in ‘The Case of the Speluncean Explorers’ pleaded from their cave prison for advice as to whether they should murder one of their party, ‘none of those attached to the rescue camp was willing to assume the role of advisor in this matter.’ As a general society we would expect a qualified court to answer such a question in a morally ambiguous situation, and any other dispute before it, no matter if it be ‘hard, dubious or dangerous.’ This view will be explored with a particular focus on Fuller’s article ‘The Case of the Speluncean Explorers’ and R. v Human Fertilisation and Embryology Authority Ex p. Blood (Henceforth referred to as ‘Blood’). In ‘The Case of the Speluncean Explorers,’ (‘Speluncean Explorers’) Fuller depicts five starving explorers trapped in a cave. With their meager food supply failing to last them until they could be rescued, they resolve that the only method of survival would be to kill and eat one of their party. It is discovered upon their rescue that they have done as such, and the remaining four explorers are put on trial for murder.

The five judges in the Supreme Court of Newgarth struggle to distinguish between the legal and moral aspects of the case, with each judge reaching a different line of reasoning. In Blood, the case revolves around whether a widow should be allowed to be artificially inseminated with sperm. The dispute arose as the sperm, while obtained from her husband, had not been obtained with his consent. Both these cases share a similar thread in being ‘hard,’ ‘dubious’ and potentially ‘dangerous’ to decide. In Speluncean Explorers, the judges toil over the dispute, and it becomes so much for a judge, Justice Tatting, that he withdraws from the case and refuses to decide it either way. In Blood, there is no judge who refuses to decide the dispute, but the court struggles to exempt Mrs. Blood’s situation from the facts and legislation. In this essay, I aim to show why any case, be it ‘hard,’ ‘dubious,’ or ‘dangerous,’ necessitates a decision from the court. I will explore each in turn, for ‘hard, dubious or dangerous’ are subjective factors.

Further, I will provide more reasons why the court must always decide the dispute before it.HARD Firstly regarding a ‘hard’ case. Who would be in the position to decide if a dispute before the court is sufficient ‘hard’? If a judge perhaps is ill-equipped to decide the dispute before it, surely he would be equally ill-equipped to make the decision that a case is ‘hard.’ And if it were the stance that the courts may refuse to decide the dispute for the reason of it being ‘hard;’ theoretically, the court could refuse every case. This would render the court system obsolete, for indeed it is the ‘hard’ disputes that require the court system the most. While a greater degree of effort and consideration may be required, it is not the case that ‘hard’ disputes are impossible to decide. Suber writes that: ‘Hard cases have answers, just as easy ones do, although they impose greater duties of care and scrupulosity on judges … They are not excuses to find a tie and give up, as [J] Tatting does.’ Indeed, in extensive debates on ‘hard cases’ by academic scholars such as Hart and Dworkin, there is much speculation and discussion on what can be done with ‘hard’ cases - such as Dworkin’s suggestion of applying mechanisms of ‘principles and policy’. In none of these scholarly writings, however, do they allude that it is an option for the courts not to decide a dispute. Thus, courts cannot refuse a ‘hard’ dispute, as the court structure and law fulfill the need for dispute resolution, with the courts being the formal mechanism for such resolution.DUBIOUS It is certainly a viable argument that the most significant purpose of a court is to cut through the ‘dubious’ nature of disputes.

For judges, that is their very occupation, and their supposed learned judgment and reasoning on ‘dubious’ matters are why they are selected for the position. It follows then, that when the nature of a dispute is so ‘dubious,’ it is the occasion when judges are required the most. Thus, judges cannot be allowed to retract their judgment in a ‘dubious’ dispute. It is the purpose of the judges to answer - to the extent of their abilities - the dubious questions. Not to pose a few more, then give up and refuse to come to a conclusion - as did J Tatting do in Fuller’s fictional Speluncean case. Similarly, in Blood, Baroness Warnock, who had chaired the inquiry admitted ‘We did not, even hypothetically, consider the present case.’ Hence Blood is a testament that there are many situations brought before the court that are so ‘dubious’ to not even have been hypothetically considered.

Surely then, it is judges who often invent hypothetical situations in their judgments and obiter statements, that should be able to dissect the ‘dubious’ nature of the dispute before them (perhaps by inventing more hypothetical situations) to finally arrive at a judgment. Nonetheless, Judges still have to decide the dispute before it based on the actual facts of the case, and not purely hypothetical situations. Hypothetical situations can put a totally different slant on the facts of a case, which could make the situation even more dubious than before. Such an example occurred with Justice Tatting when he invented so many hypothetical scenarios that he could decide the dispute before him. DANGEROUS society cannot function in a manner where the dangerous disputes are left unanswered. Moreover, this would render the court systems obsolete. Society would revert to the primitive law system Hart describes where people would begin to resolve the disputes on their own. Leaving the dispute without resolution in a dangerous case raises the immense concern that the general public would resolve the dispute in their own fashion. This would be highly unpredictable and result in chaos and ‘smoldering vendettas’. Indeed, it is certainly arguable that it would be more dangerous to leave a ‘dangerous’ dispute undecided. While neither Blood or Speluncean Explorers have a significant ‘dangerous’ element to them, examples of such cases are plentiful. Such was the case of R. v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.3) even involve international law where there are a real danger and serious consequences to many parties. If people were to resolve the dispute on their own in this case, it could result in riot, protests and overall chaos.

Ultimately, the court has a crucial function in deciding the disputes before it, no matter if the dispute is ‘dangerous.’ When a fireman determines that a fire is too ‘hard’, the surface too ‘dubious,’ or the overall situation too ‘dangerous,’ he is allowed to refuse the job. Why is it that the courts are not accorded the same degree of flexibility? Prima facie, there seems to be little flexibility available to courts, however in practice, flexibility is achieved through the possibility of previous decisions being either overruled or distinguished. There is always the potential to review and determine retrospectively that the case was decided erroneously, or further for parliament to step in. A key principle still stands - in order to achieve that flexibility, the courts first must decide the dispute before it. There is also the possibility for judges to advise matters to be handled by the legislature or executive, whilst in the meantime, deciding the dispute based on what rules they can apply. Such an example can be seen in Justice Truepenny’s judgment in Speluncean Explorers. While he upholds the rule of law and doesn't interfere with the separation of powers, he also advocates for mercy on the part of the executive. Balancing the rule of law is also required in ‘hard, dubious and dangerous’ disputes.

In Speluncean Explorers, the courts try to preserve equality and fairness to the Speluncean who have already suffered through ordeals, and many judges express their sympathies towards these unfortunate individuals. However, the judges also have to balance their sympathies with the rule of law that provides that murder is to be punished. Justice Keen upholds the rule of law the strongest, setting aside his ‘personal predilections,’ and ruling in favor of convicting the Spelunceans. In Blood, the court attempt to uphold the rule of law that says consent is required. However, they equally attempt to preserve equality and fairness as they sympathize with Mrs. Blood’s plight. Ultimately, the court rules in favor of Mrs. Blood. Arguably, the court is refusing its job in some way as it fails its constitutional role of upholding the rule of law. This is a serious consequence when we look at our constitutional structure. While the common law is subordinate to statute, the Courts are still a direct source of law in our legal system, to the extent that judges are even ‘deputy legislators.’ There need authoritative determinants and certainty in our laws, most prominently on ‘hard, dubious and dangerous’ matters. The courts, therefore, cannot be allowed to refuse to decide the dispute.

For otherwise, there would be gaps in our law left unanswered, for individuals to fill in the gaps as they please. This brings out the aspect often overlooked - selfish reasons why litigants bring matters to be adjudicated. Judges have the responsibility to apply fairness policy to set down ground rules of justice for all - this often sets tone why the case is ‘hard’ in the first place as it requires balancing of conflicting selfishness. Courts must decide the dispute before them to perform their constitutional role. A significant reason for this is that courts are faced with the task of judicial review, where the activities of the government are scrutinized. If a court refused to rule on matters that were of public concern, there would be a significant blow to our constitutional structure that is in place to keep the government in check. Blood is such an example of a judicial review.

Furthermore, there are mechanisms put in place to keep judges, for instance, protected from the public and political opinion in exercising their constitutional role. In fortifying the independence of the judiciary through shielding them from the danger of being subjected to political pressure, it has been made particularly difficult to remove senior judges once they have been appointed. These mechanisms would be redundant if the courts were allowed to refuse the dispute before them. Rather, the very existence of these mechanisms shows how crucial it is for the courts to decide the dispute before them. Both Blood and Speluncean Explorers have immense public pressure and scrutiny placed on the judges.

Moreover, in the history of the English legal system, there has not been a dispute so impossible that the courts refused to reach a decision. While it may be curious that there has been no case in English Law that has been too ‘hard, dubious or dangerous’ for the courts to decide, it is one of the reasons that law has been connected to magic. This is even in such a case where the courts made the decision to kill an unborn child for the life of its twin. However, the history of the courts can also be interpreted in a positive manner. That the courts have decided every case before it follows with the conclusion that the courts must always decide the dispute before it, no matter if it is ‘hard, dubious or dangerous.’

Conclusion:

If judges, the people chose to be some of the most decisive members in society throw their hats in from ‘hard, dubious or dangerous’ cases, it would lead to public distrust in the whole judicial system. How can taxpayers continue to be told to pay into the judicial fund when there is the possibility for litigation running its course only for the judge to throw in the towel at the last minute, wasting considerable time, effort and money expended.

How can Diane Blood, who sold her house to pay off legal fees be told in the end that there was no decision, a stalemate to her situation with nothing resolved? Catharsis is required. The closure is essential. Uncertainty breeds chaos, and certainty can only be achieved through the courts deciding the dispute before it, no matter if it may be ‘hard, dubious or dangerous.’ Regardless if the court chooses to apply judicial dispensation or applying the statute, the courts must decide the dispute before them, for to not, would leave a ‘serious defect’ in society.