Peter Suber - The Case of the Speluncean Explorers: Nine New Opinions

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THE CASE OF THE SPELUNCEAN EXPLORERS

Lon Fullers Case of the Speluncean Explorers first appeared in the Harvard Law Review in 1949. It is the greatest fictitious legal case of all time. The Case of the Speluncean Explorers: Nine new opinions is, however, the first book-length treatment of this classic article available. Peter Suber brings Lon Fullers portrait of American legal thought up-to-date with contemporary issues in his nine new opinions.

The original case, reprinted here in full, considers five cave explorers who, trapped inside a cave, end up eating one of their companions in order to survive. When they are rescued they are prosecuted for murder, a crime carrying a mandatory death sentence. The legal dilemmas raised by this case were originally addressed by Fullers five fictitious Supreme Court Justices. Their opinions mirrored the range of legal philosophies dominant in Anglo-American thought half a century ago. Peter Suber has written nine new opinions which reflect changing times, but illuminate the original questions. One of the reasons why this case is so widely cited is that the questions it raises are clearly still pertinent: Are judicial opinions merely rationalizations of the judges politics and personality? Why do judges disagree so deeply about how the law applies to a particular case? Subers nine new opinions extend the argument.

Teaching the major positions in jurisprudence painlessly by connecting them to a fascinating and concrete case, this book presupposes no familiarity with law or the philosophy of law. Peter Subers playful and simple style makes this book an invaluable tool for anyone wanting an introduction to contemporary legal thought.

Peter Suber, who holds a Ph.D. in philosophy and a J.D. (in law), is Professor of Philosophy at Earlham College. He is the author of The Paradox of Self-Amendment, the first book-length study of self-reference problems in law.

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Nine new opinions

Peter Suber

London and New York

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First published 1998
by Routledge
11 New Fetter Lane, London EC4P 4EE

This edition published in the Taylor & Francis e-Library, 2004.

Simultaneously published in the USA and Canada
by Routledge
29 West 35th Street, New York, NY 10001

1998 Peter Suber

All rights reserved. No part of this book may be reprinted or
reproduced or utilized in any form or by any electronic,
mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in
writing from the publishers.

British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data
Suber, Peter
The case of the speluncean explorers: nine new opinions/Peter Suber
p: cm.
Includes bibliographical references and index.
1. LawPhilosophy. 2. Fuller, Lon L., 1902Contributions in law. I. Title.
K230.F842S8 1998
340'.1dc21

ISBN 0-203-19471-3 Master e-book ISBN

ISBN 0-415-18546-7 (pbk)

ISBN 0-415-18545-9 (hbk)

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FOR MY MOTHER,
GRACE MAY STERN,
PROBISSIMAE LEGUM SCRIPTORI.
NON ERAT UNA PUERORUM.

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Lon Fullers Case of the Speluncean Explorers is the greatest fictitious legal case of all time. That is saying a lot, for it has some stiff competition. While its competitors may outdo it in courtroom drama, character development, or investigative suspense, none matches it in legal depth or dialectical agility. It shows not what makes some lawyers caseload interesting, but what makes law itself interesting. It would not make a good movie; it is all talking heads. In fact, the parts that would make a good moviethe events within the caveare over and done with by the time Fuller begins his piece. Moreover, these events are not depicted with cinematic vivacity, but described after the fact with judicial precision and blandness.

Fullers 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 principle. By these means Fuller crystallizes important conflicts of principle and illustrates the major schools of legal philosophy in his day. Fullers case has been called a classic in jurisprudence, a microcosm of this centurys debates, and a breathtaking intellectual accomplishment.*

Although only half a century separates us from the date of Fullers essay, the legal landscape has changed profoundly. I have written nine new judicial opinions on his case, with roughly Fullers own objectives in view, hoping to explore important issues of principle and in the process to bring the depiction of legal philosophy up to date.