If Lord Devlin had to write a judgment for the case of the ‘Speluncean Explorers’ what arguments would he put forward and what would be his decision?


The famous fictitious legal case was created by Lon L Fuller in his article “ The case of the Speluncean Explorers”. In this case, his five Supreme Court Justices tranquilly but rigorously show the complexity of the facts and the flexibility of legal reasoning. The five opinions focus on different factual details and legal precedents, and fit them into different background structures of legal and political principles. The main difficulties the judges face is how to impose the law on the defendants, using moral justification of our forefathers. In fact, Fuller crystallizes important conflicts of principle and illustrates the major schools of legal philosophy in his day. However, the question asks to apply Lord Devlin’s philosophy in relation to the case of the ‘Speluncean Explorers’. This is a very complex case and the application of Lord Devlin’s philosophy ‘the enforcement of morals’ will be relatively hard.

 The Law interpretation of the case:

The case is based upon a statute, which states in specific terms: ‘whoever shall unlawfully take the life of another shall be punished by death’1. This statute permits of no exception applicable to this case2. However, Foster J (who accepts aspects of Fuller’s own views) argued that the defendants might indeed have violated the letter of the statute, they had not violated its spirit3. The propositions of the positive law whether in statute or precedent, had to be interpreted reasonably of with supporting evidence. The question of self-defence had to be taken into account4. He further argued that the positive law of Newgarth was inapplicable to the case, as the defendants existed, trapped in a cave, in a ‘state of nature’, not in a ‘state of civil society’5. They had drawn up their own ‘charter of government’ appropriate to their very unusual circumstances6. The force of the positive law or the usual conditions of human existence did not exist for the defendants. So, the case may be removed morally from the force of legal orders, as well as geographically7.

  Facts and the Sentence:

The facts of the case are, in outline, given in footnote8. However, the defendants were indicted for the murder of (w) after they had been rescued from the cave. All were found guilty and were sentenced to death by hanging. The defendants brought a petition of error to the Supreme Court of Newgarth9.

  Lon L Fuller’s and Devlin’s Philosophy:

‘Society means a community of ideas; without shared ideas on politics, morals, and ethics no society can exist. Each one of us has ideas about what is good and what is evil; they cannot be ignored from the society in which we live’10-Lord Devlin.

  The case ‘Speluncean Explorers’ had aroused enormous public interest and a poll of readers of one newspaper had revealed that 90 percent expressed a belief that the defendants ought to be pardoned or let off with a kind of token punishment. This made it clear, not only what had to be done, but what was the significance to preserve of a shared morality and its maintenance11. Hence, Lord Devlin would suggest that the legislature should dictate to society what the reasonable man would consider to be right regarding this case12. He would expect that the reasonable man would not hold an irrational belief. He may be thought of as the man in the jury box, and so his judgement will prevail for the purposes of the law13. I believe that the reasonable man would consider hanging the defendants as an irrational belief or immoral so the criminal law ought to intervene as an instrument to preserve public morality14. The reasonable man would also consider making his judgement whether the spelunkers brought their situation on themselves and if they brought their predicament on themselves, should they be permitted morally to defend themselves on bounds necessity15 or self-defence16.

 Therefore, Devlin sees the preservation of morality as vital to society’s well-being; morality is very much more than mere integument, it expresses essential aspects of the bonds which serve to unify society; the law has an important, inescapable, role to fulfil in safeguarding society from attempts to shatter its shared morality17. Devlin also believes that in some situations the tolerance for some issues may change and the law should change very slowly in recognising these changes18. Furthermore, if their perception of how society is best preserved change, the laws of genocide will surely change as well-even laws which seem clear and unchangeable19. As an example, we might briefly reflect upon the history of abortion.

 However, by summarizing Lord Devlin’s moral stance it can be said that the society will be disintegrated if the defendants are hanged which does not follow shared morality20. Devlin, it seems, did not put forward directly any ideas on how to deal with such issues like genocide; and he did not concern directly himself with the capital punishment. He said that British society shared morality is derived from Christianity so regarding genocide in the Bible says ‘whosoever sheds man’s blood, shall man shed his blood’21. It permits of no exception applicable to this case. He further said although on one view the religious argument is not strictly relevant to a legal analysis of the death penalty, his view is that it forms important context and views on law and morals in serious crime overlap22. He did not even support some issues, which is accepted in Christianity like fornication. So, he might go beyond Christianity to make his judgement on this case as the Bible does not provide any exceptions in cases of homicide, the verdict perhaps being immoral to hang the defendants.

 It is clear from Lord Devlin’s argument that he would follow undoubtedly Lon L Fuller’s approach and put forward similar arguments and decision in the case of ‘Speluncean Explorers’23.

 Through the decision of Foster J, Fuller affirms his belief in the need for an intertwining of law, morality and reason in deciding legal question. Positivism provides a distorted view of law, which is seen as a ‘one-way projection of authority’– the law is set out and it is the duty of the citizen to obey its letter24. The wide pretensions of natural law theory are often seen as having little relevance for the contemporary world. Fuller seeks to draw these conflicting views together by arguing for a law with its own inner morality, which would proclaim the virtues of a comprehensible, promulgated law, based on the recognition of the demands of morality25. The process of reasoning would be evident in the work of the courts. Some of the problems of the type evident in the judgements of the case of the Speluncean Explorers might be solved with relative ease.

 Fuller also denied, in the context of an evil system, we have to choose between a duty to obey the law and other moral claims, and refused to recognise immoral Nazi laws26. Again, it is arguable that compliance with Fuller’s ‘internal morality’ is no guarantee of a just order, the apartheid South African legal system probably satisfied all eight principles. Though Fuller argued that its apartheid legislation ‘reveals a gross departure from the demands of the internal morality of law’ on the ground that this legislation defines race arbitrarily27.

 The question is whether or not Lord Devlin’s philosophy is similar to Fuller, they would still come up with a similar conclusion in the case of Speluncean Explorers. However, Fuller comes up with natural law and tends to establish connection between law and morality, and L Devlin argued to enforce morals by law. So, it is possible to say that L Devlin can be recognised as a natural law philosopher. Lord Devlin would also possibly agree with Lon Fuller that the defendants existed, trapped in a cave, in a ‘state of nature’, not in a ‘state of civil society’.

 Other similar cases on this point:

Lord Devlin might visit some other previous cases before making his judgement. The two uppermost in his mind would be undoubtedly U.S v. Holmes28 and Regina v. Dudley & Stephens29, two lifeboat cases in which disaster at sea was followed by homicide and prosecution. In the Holmes case, the homicides were to lighten a badly overloaded lifeboat30. In Dudley & Stephens31, the homicide was to create a meal for the starving survivors.

 Decision of the case32:

Lord Devlin would conclude following Lon Fuller decision that on any aspect under which this case may by viewed these defendants are innocent of the crime of murdering Roger Whetmore, and that the conviction should be set aside33.


The case, Fuller notes, was constructed for the sole purpose of bringing into a common focus certain divergent philosophies of law and government, philosophies which have been with us since the days of the ancient Greeks. It seems, having applied Lord Devlin’s philosophy that it does not fit with the case of Speluncean Explorers as appropriate as Bentham’s philosophy would fit. However, Lord Devlin would conclude by making his judgement in this case as did Fuller, and significantly the key point of both philosophers is to place the emphasis on moral issues.



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 Web sites:







 1 See, N. C.S.A (n.s) 12-A

2 Fuller, L. The Morality of Law Yale Law School, p-38

3See, Lon Fuller says we are not concerned about the definition of simple words in statutes instead the interpretation of whole passages and clauses in statutes. He also takes Hart to task for his strict insistence on the separation of legal obligation from moral obligation. To Fuller, the authority to make law must be backed by morality, which gives it its competence.

4See, Self defence: One of the main objects of criminal legislation is that of deterring men from crime; but if it were declared to be the law that a killing in self-defence is murder, then such a rule would have no deterrent effect. A man whose life is threatened will seek to repel the aggressor no matter what the law may say. This reasoning may be applied to the case under consideration.

5 See, D’Amato, “The Speluncean Explorers-Further Proceedings”, Stanford Law Review, 1980, vol.32, pp. 467-85 at p.467.

6 See, William N. Eskridge, Jr. “The Speluncean Explorers: Twentieth –Century Statutory Interpretation in a Nutshell”, George Washington Law Review, August 1993, vol. 61, no 6, pp. 1731-53 at p 1732.

7 See, Freeman, M.D.A, Lloy’s Introduction to Jurisprudence, 2001,p-235.

8 See, Facts of the case: in 4299, four defendants and Whetmore (w) were trapped within a cavern, which they were exploring. On their eventual release, it became apparent that 23 days after their entry into the cave, the defendants had killed and eaten (w) .In evidence, it was indicated that (w) had suggested that the group’s survival would be impossible without nutriment, and that this would necessitate the eating of the flesh of a group member. (w) also suggested the casting of lots in order to determine who was to be killed. However, the throw of the dice went against w, who was killed, after which the defendants ate his flesh.

9 See, Waldron, J, “Moral Truth and Judicial Review” 43 American Journal of Jurisprudence 75

10 See, Devlin, P, The Enforcement of Morals, 1985,p-24.

11 See, Handy J in  “The Speluncean Explorers”, George Washington Law Review, August 1993, vol. 61, no 6, pp. 1731-53 at p 1732.

12 See, Mahajan, V. D, Jurisprudence Legal Theory, 1987, p-330

13 See, Wollheim, Richard. “Crime, Sin and Mr. Justice Devlin”, Encounter, Nov 1969, p-34.

14 In addition, the powers of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible.

15 See, In Commonwealth v. Valjean, Justice Tatting refused to accept the excuse that the defendant stole a loaf of bread because he was starving.

16 See, Foster J in “The Speluncean Explorers”, Stanford Law Review, 1980, vol.32, pp. 467-85.

17 See, Devlin, P, The Enforcement of Morals, 1985,p-18.

18 See, Rostow, Eugene, The Enforcement of Morals, Cambridge Law Journal, Nov 1960, p-174.

19 See, Finnis, J.“Natural Law and the Ethics of Discourse” (1998) 43 American Journal of Jurisprudence53

20 See, Riddall, J.G, Jurisprudence, 1999,2nd Ed, p-123.

21 See, Genesis 9:6. See also Numbers 35:16-21, Romans 13:1-3, Exodus 22:18

22 See, Devlin, P, The Enforcement of Morals, 1965,p-5.

23 However, Fuller’s five justices had already offered every plausible legal argument that could be brought to bear on these facts.

24 Hart also said that the law essentially as a matter of rules with no necessary moral content

25 In addition, Fuller believes that where a system complies with his eight principles (known as the inner morality of law), then the cumulative effect of such compliance is more likely to be the creation of morally good laws rather than bad ones.

26 See, Harris, J.W, Legal Philosophies, 1997, 2nd, p-156.

27 See, Fuller, L“Positivism and Fidelity to law-A reply to Professor Hart” (1958) 71 Harvard Law Review 630

28 See, U.S. Circuit Court, 1842

29 See, 14 Q.B.D, 273,1884

30 See, Decision- Justice Baldwin sentenced him six months in prison and fined him $20, but president John Tyler pardoned the fine.

31 See, Decision- The judge convicted the defendants and sentenced to hang them, but Queen Victoria pardoned them.

32 See, “The Case of the Speluncean Explorers” by Lon Fuller 62 Harv. L. Rev. 616 (1949)

33 In contrast, it can be said that the facts of the Speluncean explorers clearly preclude the possibility of general exploitation for the purpose of obtaining nutriment.