The Case of The Speluncean Explorers

Published On: 7th July, 2024

Authored By: Suprabha Rani
University Law College, Vinoba Bhave University, Hazaribag


Lon L Fuller’s paper “The Case of the Speluncean Explorers,” published in 1949, marked his debut in the Harvard Law Review. This fictional case provides a valuable look into the application of different legal theories, exposing the essence of jurisprudence as centered around theoretical frameworks rather than practical implementation. The case has sparked significant theoretical interest, leading to a range of opinions beyond the initial five from the Supreme Court of Newgarth judges featured in Fuller’s work. Designed to educate students of legal philosophy, the Speluncean Explorers case presents a variety of legal theories through the diverse perspectives of judges and scholars, such as natural law theory, consequentialist theory, positive law theory, and critical race theory, often presenting conflicting viewpoints. Through this case, students can examine the tangible outcomes of various philosophical theories in practice.


The analysis of the case of  Speluncean Explorers, facts, issue judgement, similar cases like Speluncean Explorers, about the author Lon Luvois Fuller, different schools of law, and conclusion.


 A legal issue arose in the case involving the murder of Roger Whetmore, with the parties being The Four surviving Speluncean Explorers and The Government. The explorers were trapped in a cave after a landslide, and with minimal provisions and no means of sustenance, they faced the dilemma of survival. Through a wireless machine, they learned that rescue would take at least ten days, making survival without food unlikely. After a discussion regarding the option of cannibalism, they decided to cast lots to determine who would be eaten. Whetmore suggested using dice for this selection but eventually withdrew from the process. His companions rolled the dice in his stead, which resulted in him being sacrificed for food. Upon rescue, it was discovered that Whetmore had been killed and devoured. The four survivors were then accused of Whetmore’s murder after receiving medical treatment post-rescue. The Speluncean Explorers case presents a variety of legal theories through the diverse perspectives of judges and scholars, such as natural law theory, consequentialist theory, positive law theory, and critical race theory, often presenting conflicting viewpoints. Through this case, students can examine the tangible outcomes of various philosophical theories in practice.

About the author:


Lon Luvois Fuller, who lived from June 15, 1902, to April 8, 1978, was an influential American legal philosopher well-known for advocating for a secular and procedural version of natural law theory. He taught law at Harvard Law School for an extended period and made significant contributions to jurisprudence and contract law in the United States. Fuller’s famous debate with British legal philosopher H. L. A. Hart in 1958, which became known as the Hart-Fuller debate, played a significant role in shaping the ongoing conflict between legal positivism and natural law theory. In his renowned book “The Morality of Law” published in 1964, Fuller argues that all legal systems include an “internal morality” that places a default obligation of obedience on individuals. Robert S. Summers, in 1984, remarked that Fuller is considered one of the four most influential American legal theorists of the past century.[1]

Facts of the case:

This case revolves around a group of explorers who were stranded in a cave due to a landslide. The explorers, including Roger Whetmore, had minimal provisions and no food to survive for long. They managed to contact rescuers using a portable wireless machine found in the cave, but due to subsequent landslides, rescue efforts would take about 10 days. With little chance of survival without food, Whetmore suggested they should kill and eat one of the group members. The group agreed but struggled to decide who to sacrifice. They eventually left it to chance by throwing dice, with Whetmore himself being chosen and ultimately killed. The remaining four were rescued after 32 days, with medical experts suggesting all five could have survived if they hadn’t resorted to cannibalism. The four survivors faced murder charges, were found guilty, and sentenced to death. Their appeal was heard by a bench of five judges in the Supreme Court.[2]

Judgement of different judges in the case:

Different judges had contradictory opinions on the case involving the conviction of four explorers for willfully taking a life.

  1. Chief Justice Truepenny
  2. Justice Foster
  3. Justice Tatting
  4. Justice Keen
  5. Justice Handy

Chief Justice Truepenny, a legal positivist, upheld the conviction citing the law’s clear language. He suggested the Chief Executive could exercise clemency. Justice Foster, a natural law theorist, acquitted the accused, arguing the law should cease when its reason disappears. Justice Tatting recused himself due to the complex principles involved, finding flaws in Justice Foster’s reasoning. Justice Keen supported the death penalty, emphasizing the separation of powers and rejecting the self-defense argument. Justice Handy, a legal realist, acquitted the accused based on public opinion favoring clemency. The divided opinions led to the original conviction being upheld, with a death sentence imposed on the explorers.

Chief Justice Truepenny supports the convictions of the four explorers, as he believes that the initial trial leading to their guilty verdict was just and followed the law. He bases his decision on the straightforward statute that mandates death as punishment for intentionally taking a life, without allowing any exceptions. Despite his adherence to legal positivism, Truepenny acknowledges the possibility of clemency from the Chief Executive as a way to lessen the severity of the law in this case. Clemency, being an act of mercy granted by an authoritative figure, could be an option to consider in order to address the unique circumstances of the explorers’ situation.

Justice Foster overturned the original ruling and acquitted the four accused individuals based on his natural law theory reasoning. He disagreed with Chief Justice Truepenny’s logical positivist approach, emphasizing that laws cease to exist when their underlying reasons disappear. He argued that the four accused were outside normal society and in a state of nature due to the unique circumstances of the case. Justice Foster questioned the societal value placed on life, pointing out the irony of sacrificing ten rescue workers to save five explorers being considered right while saving four explorers at the cost of one being deemed wrong. He likened the situation to self-preservation, comparing it to self-defense and suggesting that killing in self-preservation should not be classified as murder.

On the other hand, Justice Tatting recused himself from the case, expressing doubts about a clear and fair way to decide on the principles involved. He criticized Justice Foster’s natural law perspective and pointed out inconsistencies in the self-preservation argument. Justice Tatting disagreed with the idea that self-preservation could be equated to self-defense, highlighting that the accused’s actions were deliberate rather than impulsive. He also referenced a past case to question the logic behind convicting a man for stealing food due to hunger while acquitting individuals for murder and cannibalism on similar grounds. Faced with this moral and legal dilemma, Justice Tatting removed himself from the decision-making process entirely.

Justice Keen supported the death penalty and found the accused explorers guilty, emphasizing that a judge’s role is to apply the law. He disagreed with Justice Foster and Chief Justice Truepenny, criticizing the latter for requesting clemency for the accused, which he believed violated the judicial process.

However, Justice Handy acquitted the explorers, appealing to common sense and public opinion, believing that they should be pardoned. In the end, with a split decision among the judges, the original conviction was upheld, and the explorers were sentenced to death.

Different schools of law used to give judgement are:

  • Positivist school of law

Legal positivism is a theory that considers written rules, principles, and legislation expressly recognized or enacted by an authority like the government as the only legitimate sources of law. Justices Keen and Truepenny relied on this theory in their decision-making process, keeping personal feelings and morality out of the equation and simply applying the statutes enacted by the legislature. Justice Keen even acknowledged that as a private individual, he would have acquitted the defendants, but as a judge, he must adhere to the statute and find them guilty.

  • Natural school of law

The natural school of law, or the law of nature, Is based on the belief in a higher law rooted in morality and often referred to as divine law. This perspective holds that there are universal and eternal rules dictated by a supreme authority beyond the state that governs human laws. Justice Foster based his arguments on this premise.

  • Legal Realism

Legal realism, stemming from the natural school, is an approach in jurisprudence that relies on empirical evidence. It focuses on the law as it exists in reality, rather than how it should be. This theory suggests that law is shaped by current social interests and public policy, which judges should consider when making decisions instead of solely relying on abstract rules. Justice Handy follows this approach by taking public opinion into account and using practical wisdom.

  • Literalism

Literalism, in simple terms, is the interpretation of words in their literal meaning. It can be seen as a part of the positivist theory. In this approach, the meaning of a statement is determined solely by the language rules, without considering the speaker’s intention. Justice Keen adheres to this approach and advocates for the direct application of statutes with minimal judicial discretion or interpretation.[3]

Similar cases as the Case of Speluncean Explorers :

  1. R v. Dudley and Stephens

The well-known case of R v. Dudley and Stephens explores the controversial topic of cannibalism and whether necessity can be used as a defense. The case highlights the savage nature of humans when faced with desperation and impending death. In the scenario, four men from the English ship, Mignonette, are stranded in a boat in the middle of the sea without enough food or water after a storm. With no options left, the captain, Thomas Dudley, suggests drawing lots to sacrifice one man so the others can survive by consuming his flesh. Edward Stephens agrees Ned Brooks refuses, and cabin boy Richard Parker is not consulted. Ultimately, Dudley and Stephens decide to kill the boy, and they eat his flesh to survive for four days until they are rescued. They are tried, found guilty of murder, and initially sentenced to death, but later their punishment is reduced to life imprisonment. The court ruled that necessity cannot justify a crime.[4]

Facts of R v. Dudley and Stephens:

The story delves into the dilemma of cannibalism and the legal ramifications surrounding it. It starts with four English ship crew members stuck at sea after a storm, facing starvation. Captain Dudley makes a grim suggestion of resorting to cannibalism by drawing lots to choose a sacrificial member. The cabin boy, Richard Parker, is eventually killed for food without his consent. Dudley and Stephens, the perpetrators, face trial and are initially sentenced to death but later have their punishment reduced to life imprisonment. The case sets a precedent that necessity cannot justify committing a crime.

Legal Issues:

Can Necessity Justify Murder? Is it acceptable to use necessity as a defense for committing murder, making the act permissible under certain conditions?

Act of Self-Defense: Regarding self-preservation by killing a boy, can it be seen as self-defense, thus justifying taking another life to ensure survival?

Case Conclusion:

It was conclusively decided that Stephens and Dudley’s actions in the case constituted murder, resulting in the death penalty. The argument of necessity, based on hunger, was rightly rejected as inadequate to excuse theft, let alone the serious crime of murder.

Targeting the youngest and weakest, Richard Parker, was a calculated choice beyond basic survival needs. The idea that killing Parker was more important than any adult was firmly denied. While the temptation faced by Stephens and Dudley was understandable given their dire situation, it was ruled not a valid excuse for the murder.

Therefore, their difficult circumstances do not provide legal leniency for the crime of murder. The judgment maintains the seriousness of their actions and imposes the appropriate penalty for such a serious offense.[5]

  1. William Brown case

The American ship William Brown sank in 1841, resulting in the loss of 31 passengers. Among the survivors who took to two boats, the one with nine crewmen and 32 passengers became overloaded. At the urging of the first mate, Alexander Holmes and others from the crew forced 12 male passengers out of the boat. Only Holmes was found, and he was charged with murder in the case United States v. Holmes. Ultimately, he was convicted of manslaughter. This case is frequently discussed in academic circles to teach students and provoke debates in legal studies about the concept of “necessity” as a legal defense.[6]


Lon Fuller, who wrote ‘The Case of the Speluncean Explorers’, is known for his contributions to the law and morality discussion, leaning towards their alignment. However, in this hypothetical case, Fuller doesn’t project his personal beliefs but presents a neutral argument from different perspectives. Despite this, it can be inferred that Justice Foster’s stance most closely resembles what Fuller might have endorsed in reality. The outcome of the Speluncean Explorers case dismisses potential justifications like duress or self-defense, ruling guilt based on a literal interpretation of the law, and disregarding moral considerations. This case illustrates how various legal theories can be applied in practice.


Websites/ journals/ pdf/ research article

  1. Wikipedia,, 30th May 2024.
  2. Internet Archive Scholarship, The Case Of Speluncean Explorers,, 31st May 2024.
  3. Athira R Nair, Understanding Jurisprudence through the case of Speluncean Explorers, Ipleaders, 4 Jan, 2022,
  4. Stuti Mishra, R v Dudley and Stephens – Case Analysis, Ipleaders, 1 Dec, 2018,
  5. Khushi Malviya, Case Analysis: R v. Dudley and Stephens, Lawctopus, 10 April, 2024,
  6. Wikipedia,, 30th May, 2024.








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