The Speluncean Explorers--Further Proceedings

Lon L. Fuller's The Case of the Speluncean Explorers is a classic in jurisprudence. The case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Fuller are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis". Tags: Jurisprudence, Legal Theory, Rights Thesis, Case of the Speluncean Explorers [pg467]** Lon L. Fuller's The Case of the Speluncean Explorers [FN1] is a classic in jurisprudence. Set in the Supreme Court of Newgarth in the year 4300 the case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Professor Fuller in 1949 are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis" as advanced by Professor Dworkin and others. [FN2] Simply stated, the rights thesis holds that there is a "right" answer, and only one right answer, in every case. The litigants have a "right" to that and finally—to add one more shade of meaning to the comprehensive term "right"— the answer thus arrived at is dictated by general requirements of justice. Since justice is a branch of morality, the "right" answer is not only correct but also right in a moral sense. My purpose here is to examine how the rights thesis would apply to the Speluncean Case, and to do so in the spirit of my former teacher's presentation. Therefore, let us imagine that, right after the decision in the Speluncean Case was handed down, the Chief Executive of Newgarth constituted a Special Commission of three law professors at the University of Newgarth School of Law to present a recommendation on the question whether executive clemency should be extended to the convicted defendants.[FN3] [pg468] OPINION OF PROFESSOR WUN When I received news of the decision in this case, I was relieved that the Court had reached the only proper result. But later, as I read the opinions of the Justices, I realized how fragile the Court's decision really was. To recap the vote, Justices Handy and Foster voted for acquittal, Tatting withdrew from the case, and although Keen and Truepenny voted to affirm the finding of guilty they engaged in powerful pleas to the Chief Executive to extend clemency to the convicted defendants. Not one of them came even close to believing, as I do, that the defendants were clearly guilty of murder. Perhaps the most egregiously bankrupt opinion illustrating the Court's true feeling is that of Justice Keen, who found it necessary to resort to the old and discredited theory of positivism to prop up his conclusion. He insisted upon a separation between law and