The case of the Speluncean explorers continues to enjoy recognition as among the most iconic. This is because this case explores a complex question and provides equally complex perspectives. In the case, the members of a five-judge bench tasked with the daunting task of rendering a decision offer interesting and enlightening perspectives. In the years following the publication of the case, other scholars and theorists have added their voice to the debate of whether the four explorers were indeed guilty of murder and that the death sentence was the appropriate punishment. Alan Derschowitz is among the legal experts who have offered their opinions on the case. A critical analysis of his opinion reveals that it is flawed, irredeemably basic and fails to account fully for the complex questions in the case.
Alan Derschowitz’s Opinion
Derschowitz has been identified above as among those who have attempted to shed further light on the case of the Speluncean explorers. On the question of whether these explorers were guilty of murder, Derschowitz posited that the law should be interpreted as is. Essentially, Derschowitz adopted a textualist approach. Through this approach, he concluded that since the law was not explicit in its prohibition of the kind of murder that the four accused Speluncean explorers, their conduct was acceptable. Having arrived at this conclusion, Derschowitz called for the conviction of the accused to be overturned.
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Critique of Derschowitz’s Opinion
It is true that in offering his opinion, Derschowitz simply attempted to help solve a complex question. However, his solution is overly simplistic and ignores other issues that have significant impacts on how the case should be interpreted. One of the issues that Frank Easterbrook (1999) raised in his discussion of this case concerns the interpretive power that the judiciary wields. While he admits that the judiciary should not create its own rules and laws but should instead be guided by the laws passed by the legislature, Easterbrook adds that the judiciary and the legislature are collaborative partners (Easterbrook, 1999). Essentially, this means that in interpreting the law, the judiciary should not limit itself to the explicit provisions of the law. As regards Derschowitz’s opinion, Easterbrook’s position indicates that the simple fact that the law does not explicitly forbid an act does not make the act permissible. The court has a mandate to extend the law by interpreting it to include acts that are not originally stated in an explicit fashion. Therefore, Derschowitz erred in his view that the conviction of the accused should be overturned.
In issuing its ruling, the five-judge bench was guided by the provision of N.C.S.A (N. S.) § 12-A. This law stated that “whoever shall willfully take the life of another shall be punished by death” (Fuller, 1949, p. 3). As already noted above, Derschowitz felt that this law did not explicitly forbid the acts that the four accused performed. It is indeed true that the law does not state that an individual who murders another while trapped in a cave is guilty of murder and should therefore be put to death. However, as he explored this law, Easterbrook observed that it was rather obscure and that any court would be forced to extend it beyond its original provisions. Particularly, Easterbrook noted that the law did not identify the person or animal whose killing would be considered murder and therefore earn one the death penalty (Easterbrook, 1999). Therefore, when he developed his opinion, Derschowitz clearly failed to recognize that it is nearly impossible for any law to account for all possible scenarios. His argument that unless explicitly stated an act is permissible is flawed and weak.
Courts do not operate in vacuums. This means that as they fulfill their mandate, judges need to account for wider contextual issues that have a bearing on a case. The role that context plays in the interpretation of the law is the main subject of an article that Victoria Villa (2012) authored. In the article, Villa acknowledges that judges and other stakeholders in the judiciary need to consider broad social issues when making sense of the law and issuing rulings. It is clear that Derschowitz failed to account for the impact that social contexts have on how the law is to be interpreted. As already stated, Derschowitz was of the view that since their actions were not forbidden in law, the accused could not be convicted for murder. It is evident that Derschowitz adopted a simplistic and overly basic approach. Even if Derschowitz’s opinion has some merit, an argument that Easterbrook raised in his article invalidates the opinion. Easterbrook noted that “language takes meaning from its linguistic context, but historical and governmental contexts also matter” (Easterbrook, 1999, p. 1913). Here, Easterbrook was essentially indicating that the court should interpret the law beyond what the text says. It needs to examine the purpose that the law serves and the contextual issues that inspired the enactment of the law. In enacting N.C.S.A (N. S.) § 12-A, the Newgarth legislature must have drawn inspiration from the need to secure the sanctity of human life. The protection that this law offers applies in all situations despite the fact that it does not state this explicitly. Therefore, Derschowitz’s argument carries little weight and fails the test of consistency with legal doctrine and common sense.
In his presentation of the case of the Speluncean explorers, Fuller offered the opinions of five judges. Chief Justice Truepenny is among these judges. Adopting a positivist approach, Truepenny was of the view that the law is the law and that no exceptions should be made (Fuller, 1949). Essentially, Truepenny felt that the accused should be found guilty since N.C.S.A (N. S.) § 12-A was clear in its prohibition of murder. As is the case with Truepenny, Derschowitz also adopted a positivist approach. He felt that the law should be interpreted narrowly and the interpretation must be limited to the explicit provisions of the law. The difference between the opinion of Truepenny and that of Derschowitz lies in the fact that the former made an exception where none was warranted. As stated in a previous section, N.C.S.A (N. S.) § 12-A is clear that anyone who kills another willfully should suffer a similar fate. This law applies to all situations where a murder has occurred. By calling for the acquittal of the accused, Derschowitz essentially made an exception for their crimes. Where does he find the authority to issue such an exemption? It is clear that Derschowitz attempted to free himself from the bounds of the same law of which he purports to be a faithful servant. Since his opinion conflicts with itself and that of Truepenny, Derschowitz should be dismissed as an individual without a clear understanding of the interpretation and the operation of the law.
The discussion above has shed light on the opinion of Truepenny. While insisting that the law is the law and that is must be followed to the letter, Truepenny indicated that the Chief Executive could be instructed to exercise clemency. Essentially, Truepenny recognized that the case was rather peculiar and it would be wrong to apply the provisions of N.C.S.A (N. S.) § 12-A strictly. The accused resorted to cannibalism because they faced imminent death. Before resorting to this desperate measure, the accused had appealed for guidance from the priest, the court and other stakeholders. None of them offered any helpful insight. To sentence them to death is both cruel and unfair. Derschowitz arrived at the same conclusion that the accused should be acquitted. However, it is the argument that he used to reach this conclusion that is in contention. As already noted, Derschowitz adopted a narrow focus that fails to recognize the special circumstances surrounding the case and the fact that no law can possibly account for all scenarios. By appealing to the Chief Executive to exercise clemency, Truepenny essentially suggested that the case went beyond the confines of the law. For Derschowitz to be more effective in persuading his audience, he should have acknowledged that the case was so complex that it would be improper to use the law as the primary and only basis for forming opinions on the case.
Chief Justice Truepenny is not the only member of the bench who offered his opinion on the guilt and the appropriate sentence for the accused. He was joined by Justice Foster who adopted a view that was in conflict with the opinion of Truepenny. Natural law was the primary basis of the perspective that Foster adopted. Foster felt that all laws serve a purpose. When the purpose is rendered inoperable in a particular case, the law loses its meaning and should therefore be suspended (Fuller, 1949). Basically, through this argument, Foster argued that the accused should not be subjected to the law since their actions occurred in a realm where the jurisdiction of the court and the applicability of the law come into question. In essence, Foster was in agreement with Derschowitz that the accused should be acquitted. The difference lies in the approaches and the justifications that the two offered. While Foster relied on the natural law perspective, Derschowitz contended that the law was not specific in forbidding the actions of the accused. This difference means that Derschowitz’s argument is both inadequate and narrow. It has already been stated that the argument failed to account for the complex circumstances surrounding the case. Therefore, Derschowitz’s argument should be dismissed as failing to reflect the peculiar nature of the case and its excessive focus on the explicit provisions of the law.
This far, the discussion has highlighted the flaws in Derschowitz’s argument. While it is true that his argument remains flawed, it is important to recognize that it possesses some merit. Derschowitz believed that the court should limit itself to the actual letter of the law. He felt that courts should not overstep their mandate by extending the law beyond what its letter stipulates. Derschowitz’s perspective is rooted in a long-established philosophy that has guided the operations of the judiciary for decades. Strict constructionism captures this philosophy. Basically, strict constructionism requires judges to interpret the text of the law as it is written (Shapiro, 2011). This philosophy discourages judges against engaging in extensive analysis of the law. There is no doubt that strict constructionism is the basis of the argument that Derschowitz raised. Since this argument is based on a valid legal philosophy, it must possess some merit. However, as the discussion above has revealed, Derschowitz’s position is so flawed that it cannot serve as the basis for the decision that any self-respecting and law-upholding court issues.
In conclusion, the case of Speluncean explorers continues to shape discourse on legal questions. This case highlights the daunting task that courts face as they attempt to balance the welfare of parties to a case and the need to uphold the law faithfully. Since its publication, the case has inspired debate and discussion. Various scholars and experts have developed different positions on the guilt of the accused. Derschowitz’s position is among the most interesting as it underscores how courts are to interpret the law. While his position is founded on an established philosophy, it ignores a number of important issues. The main take-away from his position and the case in general is that in their examination of cases, courts should not limit themselves to the explicit provisions of the law.
References
Easterbrook, F. H. (1999). The case of the Speluncean explorers: revisited. Harvard Law Review, 1834-1917.
Fuller, L. L. (1949). The case of the Speluncean explorers. Harvard Law Review, 62 (4).
Shapiro, S. J. (2011). Legality. Cambridge, MA: Harvard University Press.
Villa, V. (2012). Theory of legal interpretation and contextualism. Journal for Constitutional Theory and Philosophy of Law, 17, 151-178.
