CLASS REPORT OF LECTURE DATED 8TH FEBRUARY, 2024

- Krishna .M (BC0220026)

On this date we, the students, discussed and presented the Speluncean explorers case study
with examples from both precedents and popular culture. The preceding class had seen the
introduction of the Speluncean Explorer’s case study, its facts, and the opinions of 3 of the 5
judges; Justices Truepenny, Foster, and Tatting.

1. BRIEF FACTS

A group of Speluncean explorers were trapped in a cave due to a landslide. There were five
of them including Roger Whetmore. They were trapped for trapped for 23 days, when they
realised that they might die off starvation, and hence Roger Whetmore was killed and eaten
by his peers. They were rescued on the 30th day, and it was discovered that Whetmore was
chosen based on a draw of lots that he himself had proposed. The proposition by Whetmore
was made on the 20th day, after which he backed out of this arrangement. Nevertheless, on
the 23rd day he had lot the throw of the die, and was eaten.

After they had been freed from the cave, they were put to trial for Whetmore’s murder. The
law of the (fictional) Commonwealth of Newgarth was simple; “Whoever shall wilfully
take the life of another shall be punished by death.” The question now before the court was
simple; should the 4 explorers be executed for the death of Roger Whetmore? And, are they
guilty of murder?

2. SUMMARY OF CLASS DISCUSSION

2.1.The Brief opinions of the Five Judges

• TRUEPENNY: “The language of our statute is well known and it permits no exception
in this case. However, our sympathies may lead us to make allowance for the men.”
Thus, Truepenny is termed as a true textualist. He is clear about the language of the
statute, and upholds the opinion of the jury. He however, urges the executive to grant
clemency.

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• FOSTER: “Cessante ratione legis, cessat et Ipsa lex” which means when the reason for
law ceases, the law itself ceases. He propounds the Natural Law theory of justice. He
says that the men, while consuming Whetmore were in a state of nature, and hence the
laws of the commonwealth would not apply to them. He also justified the sacrifice of
one life, for the saving of five lives.
• TATTING: He was not able to separate the emotional and the intellectual side, however
he was dead set against Foster. Heavily critiqued Foster, and said that he was more
concerned in following the holes (the lapses) in law rather than the law itself. He was
also a textualist, but wished the law was more specific to the situation. He also upheld
the power of the executive to make its own decision.
• KEEN: Positivist-Textualism. He made the point that the decision of executive
clemency was up to the Executive, and that the judiciary should not have a role to play
in this decision. He spoke about the role of a judge, which is to interpret the law and
not take the law into their own hands. Did not want to focus on the “purpose of the
statute.”
• HANDY: Handy was a legal realist, and advocated for the use of common sense and
upholding of public opinion. He did not want to delve too deep into legal questions,
because “government is a human affair.” The abstract procedure of law is secondary to
what “should be done” or whatever is the desired purpose. Thus, he says that doing so
would make the process of law more efficient.

2.2.Examples Cited by the Students

• JUSTICE KEEN;
o K.M. Nanavati V. State of Maharashtra: where the Governor of Maharashtra had
granted clemency to Nanavati for the murder of his wife’s lover.
o Bostock V. Clayton County, 590 U.S. 644 (2020); Here it was contested if Title
VII of the Civil Rights Act, 1964 protects employees against discrimination
because of sexuality. The court in a very Positivist-Textualist approach held that
it does not, because the words of the statute only protected the individual from
discrimination in employment based on “individual's race, colour, religion, sex,
or national origin.”

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 o Law and Order (TV Series): the main protagonist, Jack Macoy always adheres
to a strict interpretation of the law, even in the face of morally complex
situations, thus making him very much like Justice Keen.
• JUSTICE HANDY;
o Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945; The case caused
the Congress government, with its absolute majority, to pass the Muslim Women
(Protection of Rights on Divorce) Act, 1986, which diluted the judgment of the
Supreme Court and restricted the right of Muslim divorcées to alimony from
their former husbands for only 90 days after the divorce (the period of iddah in
Islamic law). This was done due to mass outrage by the Muslim community on
the ruling, some of whom cited the Qur'an to show that the judgement was in
conflict with Islamic law. It triggered controversy about the extent of having
different civil codes for different religions in India.
o Alive (Movie-1993); This movie was based on the Uruguayan Plane crash of
1972, where people eat the flesh of the dead corpses for survival. Legally, these
corpses have burial rights. But then, people still celebrated the return of the
survivors and they call it the miracle of Andes till this day. This is one example
of how public opinion and legal realism challenges textualism.
o Anniyan (Movie-2005); A murderer is acquitted because the public believed
that it was right of him to take the law into his own hands because of the failure
of the justice system. Because the Public was so supportive of his actions, they
have no other options than to acquit them.

3. ADDITIONAL RESEARCH

3.1.For Justice Keen;

• R v Dudley and Stephens (1884) 14 QBD 273, DC; is a leading English criminal case
which established a precedent throughout the common law world that necessity is not
a defence to a charge of murder. The case concerned survival cannibalism following a
shipwreck, and its purported justification on the basis of a custom of the sea. Dudley
and Stephens were sentenced to the statutory death penalty with a recommendation for
mercy.

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• The Walking Dead (TV Series); Sheriff Rick Grimes is one of the central characters
in the television series "The Walking Dead," based on the comic book series of the same
name by Robert Kirkman. Throughout the series, Rick undergoes significant character
development as he navigates the challenges of a post-apocalyptic world overrun by
zombies, known as walkers. Rick is depicted as a morally principled character who
strives to maintain his humanity in the face of extreme circumstances. He grapples with
ethical dilemmas and tries to uphold a sense of justice, even when it conflicts with
practical survival instincts. This can be connected to justice Keen, by the fact that even
when the situation called for it, the Sheriff much like justice Keen did not abandon all
his preceding principles. He was a positivist with respect to his own code of ethics.
• The ideology of Justice Keen is also very similar to philosopher Immanual Kant’s
critique of Utilitarianism. Kant had proposed the Trolley Cart problem to showcase that
people cannot, in every situation, be justifiably used as a means to an end. Every
individual person must be an end in himself.

3.2.For Justice Handy

• Brown V. Board of Education, 347 U.S. 483 (1954); a landmark decision by the U.S.
Supreme Court which ruled that U.S. state laws establishing racial segregation in public
schools are unconstitutional, even if the segregated schools are otherwise equal in
quality. Initially, in the U.S., segregation in public schools was allowed by the case of
Plessey V. Fergusson, which had taken a textualist approach, and had said that since
everyone was given equal education, the segregation did not go against the U.S.
Constitution. Thus, the Brown case overturned this ruling, due to public protest, and the
willingness by the judiciary to uphold the public opinion.
• Section 375 (Movie-2019); In deciding a case of Rape of an assistant costume designer
by her superior, The court held the defendant guilty of Rape. This was done despite the
fact that there was conclusive evidence to prove his innocence. At the end of the day,
the judges made the decision to convict the defendant since the public had rallied behind
the prosecutrix in her false claim of rape, and violence was threatened to break out if
she was not granted ‘justice’.
• Jawan (Movie-2023): a group of hijackers, hijack a metro train in Mumbai. The
hijackers escape only because of public support. This signifies the weightage public

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opinion has of a case, and coordinates with how Justice Handy handled the case of
Speluncean explorers.