The Case of the Speluncean Explorers: Nine New Opinions

by Peter Suber

The Case of the Speluncean Explorers, written in 1949 by Lon Fuller, is the first famous fictitious legal case of all time. Describing a case of trapped travellers who are forcd to cannibalize one of their team, it is used on courses in philosophy of law and Jurisprudence to show how their trial upon rescue touches on key concepts in philosophy and legal theory such as utilitarianism and naturalism. The Case of the Speluncean Explorers: Nine New opinions includes a reprint of Fuller's classic article and a much-needed revision of and addition to the five openings originally expressed in the case by the five Supreme Court Judges. Peter Suber carefully and clearly introduces students to the main themes of Fuller's article before introducing nine new opinions. These opinions include perspectives from communitarian, feminist, multicultural, postmodern and economic theories of law, updating Fuller's original case and bringing contemporary theories of law to bear on the five original opinions.

Why read this book? One reason is to get beyond sloganeering about "judicial activism" and "activist judges." The book is an enjoyable and even-handed way to understand what the debate is about. It doesn't tell you what to think, but illustrates the contending positions and lets you think for yourself. It will show you how judges with different moral and political beliefs interpret written law, how they use precedents, how they conceive the proper role of judges, how they conceive the relationship between law and morality, and how they defend their judicial practices against criticism. It anchors all of this in a Supreme Court hearing of a gripping, concrete case on which real people disagree. (Challenge: Take any view of how judges should interpret law, especially any view that makes it sound easy, and try it out on this case. How well can it respect the facts and law? How well can it answer the objections from judges who take other views? How well does it deliver justice?) The book uses no jargon and assumes no prior knowledge of law or legal philosophy.

Genres: Philosophy, Law, Fiction, School, College, Legal

128 pages, Paperback

First published November 5, 1998

About the author

Peter Suber, a leading theorist of open access and a prominent voice in the OA movement, is Director of the Harvard Office for Scholarly Communication, Director of the Harvard Open Access Project, Faculty Fellow at the Berkman Center, Senior Researcher at SPARC, and Research Professor of Philosophy at Earlham College. He is the author of Open Access (MIT Press), named by Choice as an Outstanding Academic Title for 2013.

Reviews

[Clyde Yang · Rating 5 out of 5]

before i read this, i only had superficial knowledge about law from the few modules that i took during University. A lawyer friend recommended this to me and this is simply brilliant. although it is a relatively short book, it is so rich in content that i spans across the different schools of thoughts and trigger the read's deep thinking with the different angles of thoughts presented. The clash of law and morality, thoughts of whether he is guilty or acquitted, keep bouncing in my head. i could easily relate this to many other issues like Trolley Problem and cannibalism. definitely worth a 5 star.

[Seike Liu · Rating 5 out of 5]

“法律是什么？法律不依赖于外部力量而获得自身存在的根据，它从自身的根源和基础上获得力量。”

[Richard]

(An exploration in how law and philosophy interact in extremely difficult circumstances: survival cannibalism. Not purely abstract: see R v Dudley and Stephens. Now what I want is a book dealing with The Trolley Problem in depth.)

[WaldenOgre · Rating 5 out of 5]

“如果（法律推理）它是激情的奴隶，那么，认为法律可以约束法官的想法就完全是幻觉。但是如果得到正确理解的法律确实能约束法官，那么为什么在通情达理的法官之间会有如此之深的分歧？”

[Alexander · Rating 1 out of 5]

Dogshit slavery, never again...

[Barack Liu · Rating 5 out of 5]

408-The Case of the Speluncean Explorers-Peter Suber-Law-1998

2022/03/05


The Case of the Speluncean Explorers was first published in 1998. It tells the story of a famous legal case that Lon Fuller invented in 1949. It describes a case where stranded travelers were forced to kill each other, and it was used in courses in legal philosophy and legal studies to show how their trial at the time of rescue touches on key concepts in philosophy and legal theory, such as utilitarianism and nature doctrine.

Lon Fuller, born 1902 in Hereford, Texas, US, died in 1978. He was an American legal philosopher who criticized legal positivism and defended the secular and procedural forms of natural law theory. Fuller has been a law professor at Harvard for many years and is well known in the American legal community for his contributions to jurisprudence and contract law.

Peter Suber, was born in 1951 in Evanston, Illinois. Studied at Northwestern University. He is a philosopher specializing in legal philosophy and open access to knowledge. He is a senior fellow at the Berkman Klein Center for Internet and Society, director of the Harvard Office of Academic Exchange, and director of the Harvard Open Access Project (HOAP). Suber is known as a leading figure in the open access movement and creator of the game Nomic.

Table of Contents
PART I
Lon Fuller's Case of the Speluncean Explorers
Opinion of Chief Justice Truepenny
Opinion of Justice Foster
Opinion of Justice Tatting
Opinion of Justice Keen
Opinion of Justice Handy
Opinion of Justice Tatting
PART II Nine New Opinions
Opinion of Chief Justice Burnham
Opinion of Justice Springham
Opinion of Justice Tally
Opinion of Justice Hellen
Opinion of Justice Trumpet
Opinion of Justice Goad
Opinion of Justice Frank
Opinion of Justice Reckon
Opinion of Justice Bond

Fictional stories come from imagination as well as from reality. Because the fake is real, it is more attractive. And reality can sometimes even be stranger than fiction. Fictional stories allow us to see the truth from God’s perspective.

While we may have pondered these kinds of "moral dilemmas," we may never know what our real answer is unless we are there. sacrifice yourself? Or sacrifice others? In such an extreme environment, it is difficult for us to measure our own and others' behavior with our daily "law" and "morality". More existing may just be instinct.

Cannibalism is an extremely sensitive and taboo topic because if human beings lose trust in each other, there is no doubt that human society will fall apart. The cannibalism of some people in ancient society often occurred in extreme situations, such as a great famine or war. These were the darkest moments when the human order collapsed.

The law is to maintain the social order, and the social order should be approved by the majority so that it can be maintained. But sometimes, extreme situations can still occur that can cause the law to temporarily fail. Is it necessary to discuss these extreme cases? I think yes, the more clearly we talk about extreme situations, the more likely we are to extract the basic principles from them that will guide us to make better choices in ordinary situations.

The so-called desperation probably refers to being powerless, and slowly waiting in despair for death to come suddenly at a certain moment. Such a result is probably more unbearable than a sudden, unexpected crisis. Maybe sometimes, stopping abruptly is a better outcome than a long delay.

In "The Cave", the author's assumption is even more extreme, because when similar events occur in real life, people don't even know if they have a chance to be rescued; in this story, in order to wait for the rescue that is bound to come, one must experience The time of famine is the most difficult to choose. It seems promising, but it has to pay a heavy price.

The creation of the law is actually to safeguard the interests of the majority. But when we adopt pure utilitarianism to measure who is sacrificed in terms of numbers, it is unacceptable from a humanitarian point of view. Whether or not we can respect the interests of a few people mainly depends on the number of resources possessed by the whole group.

The so-called "cognition of etiquette in the warehouse, knowledge of honor and disgrace", in extreme circumstances, the so-called social order and morality that we are accustomed to now may actually be vulnerable, usually sensational situations, in this case, also can happen. At this moment, the so-called law of the jungle is in effect, and the animal instinct of human beings is most clearly manifested.

[Nicktimebreak · Rating 5 out of 5]

一开始被书名吸引，一位这是一本推理小说，直到翻开看了前言，才发现这是一本虚构案件读法官陈词。读完虚构案件难免会联想到此前看过的哈佛大学公开课_Justice_里探讨过的类似内容，一个是电车难题，另一个是英女王诉杜德利与斯蒂芬案的真实案件。无论是哪一种情景设计，最终是让按钮决定的人，让法官限于法律与道德的两难之间。

此书由富勒首版于1949年，他虚拟了5位法官的精彩陈词，50年后由萨伯再次接续虚拟了另外9位法官的不同陈词。就我个人感觉而言，富勒的5位法官陈词位认为更加短小精悍，在法理道理的探讨上更为聚焦，而萨伯的9位法官也许因为可供分析的角度越来越少的缘故，在内容铺陈上略显松散，观点十二甚至有凑数之嫌，观点十三则过于激进。

总体而言，阅读这本书就是一场思辨盛宴。在这里我们将读到一个关于区分实定法和自然法、法律语言和法律目的、司法职能和行政职能、司法性立法和立法机构立法、公义常识与立法精神、立法司法与道德关系、紧急避难抗辩与「故意」词义、法官的自由裁量权等的学术性专题讨论。

作为一个非法学专业的普通人，遇到这样一个巧妙设计的案件，以法官角色代入，自己该如何做出判决呢？这本身就是一件有意思的事情，它需要我们援引法条说服自己的同时还要说服众人。然而不同的人对同一件事就是会有不同的观点，像前言所述，这个案例并不是富勒的结论，而是他的提问。

在此，我也不自量力想提一点微小的看法，是关于紧急避难抗辩的。尽管在陈词中，有的法官支持杀人者的紧急避难抗辩，有的反对，但我的一个反对意见，没有出现在法官陈词中：我们首先假设杀人者即幸存者们的紧急抗辩成立。根据霍姆斯法官提出的，如果杀人对于船上的人的存活是必要的，那在法律上就是正当的。也就是说杀人者吃被杀者威特莫尔的肉而幸存是必要。现在，假设在杀人者行凶的当下，威特莫尔有一股突如其来的求生欲望，在被杀人者围攻的某一时刻，突然暴起将其中一位反杀，那么威特莫尔这一行为是否也属于紧急避难？根据霍姆斯法官的观点，显然威特莫尔的杀人对他的存活是必要的，在法律上是正当的，也是紧急避难。于是，在一场杀人事件上，正反双方都具备了紧急避难条件，这显然是可笑的，这样的杀人事件无论结局如何都没有错的一方，杀人不问对象，只要有结果就成了正义。

[Jenna-Mia · Rating 4 out of 5]

I surprised myself with how much fun I had with this. It was recommended to me months ago, and became one of those books I acquired and never picked up. But I'm really glad that I finally got around to it.

The philosophies of the 14 different judges as well as their logical pathways were all so different and equally human. I felt like it showed that there are very few objective facts and even fewer when it comes to law. It doesn't explicitly say what ideology each judge is a caricature of, but the chapters leave enough hints that it isn't hard to infer.

One of my biggest worries was getting bored with hearing the same case over and over, but with how new each approach feels (along with the brevity of each chapter) it rarely felt repetitive. And for writing that consists entirely of talking heads, I am now very invested in the history and social structure of Newgarth. If anyone writes a book on the Great Spiral, I will be more than happy to read it.

[Lauren Acquaviva · Rating 4 out of 5]

In this book Peter Suber takes Lon Fuller’s original legal scenario - - with just a few tweaks - - and fleshes out nine new judicial opinions.

First, credit to Fuller for one of the most fascinating hypothetical cases I’ve ever pondered. His legal mind was remarkable, and his work alone is well worth reading. His five original opinions make up the best portion of this book both in terms of writing and in terms of the legal foundations conveyed. However, those opinions were also inescapably dated and left out some key positions. Suber steps in with an elegant series of further opinions that serve to sketch out the contours of the American justice system as seen through nine newer, more hybrid lenses.

This might not be an obvious choice for someone who isn’t already interested in criminal justice and appeals courts in the United States, or in legal theory in general, but it is written in plain language and is quite accessible. It’s also one of the more interesting hypothetical legal tangles available to us non-lawyers to puzzle out - - the questions posed are moral and ethical rather than statutory, and as such there is something here for any reader.

[Daniel Barros · Rating 5 out of 5]

Ever since I got matriculated in university and stared my law degree I’ve faced situations where my professors talked about the tough decisions jurors had to make. But never have I ever read a case where impossible decisions were on the table. This book creates the perfect scenario for law graduates to understand that sometimes lawyers and judges are going to have to resolve matters of such magnitude, and somebody has to make a decision.

[Hayley · Rating 5 out of 5]

Best book I have read. This is my first book related to law for someone who wants to go into this field- and it was amazing. Different judges explain and debate their opinions, having to separate the law from their morals. This case is wonderfully written, and had me hooked the whole time.

[Qin Li · Rating 4 out of 5]

The five original cases are more interesting than the new ones added imo.

[Jatin · Rating 3 out of 5]

Having one person write a few opinions is... Ah well. Not that great. Fuller was an exception, not the rule. I can easily see ways how this one doesn't go deep enough or falls apart.

[Chang Yang · Rating 5 out of 5]

A very incredible work. Although it is a book about law, it enlightened me to think differently about the things happening around me. The book is not just about law, but also about philosophy.

[Hqwxyz · Rating 5 out of 5]

逼到极限的情况是法律所无法覆盖的，最终只有诉诸法官个人的法哲学观点。此书是个漂亮的思想实验，著者几乎设想到了所有相关细节，极端的比如无线电通讯电池电量的问题。喜欢法学推理的绝对值得一读。

[Weiping · Rating 4 out of 5]

Readers with little understanding of common law will find it hard to follow.

[Yiwen Zhang · Rating 5 out of 5]

为了避免当墙头草我都是尽量带着挑刺儿的有色眼镜去看每一种观点的...结果还是在风中摇摆着跪了。大好！

[Linhao · Rating 3 out of 5]

Agree to disagree

[Wlx005 · Rating 3 out of 5]

书中涉及很多有意思的角度看待这个案件，法学学生值得一读。不过读到最后时感觉角度基本耗尽了，略有索然无味。

[Babe Gladwaller · Rating 4 out of 5]

各法学流派的观点交锋。我非常赞同特朗派特法官的“生命的绝对价值”观点，如果所有的生命都有无限的价值，那么一个生命与两个生命就是同样珍贵的，与一百万个生命相比亦是如此。生命不是冷血的算术，我同样赞成有罪判决。

[Kevin Young · Rating 4 out of 5]

本书应该属于法理学或者法哲学，有法律人思辨。但我个人觉得，十几个观点之间重复的东西实在是太多了。不过本书值得一读……

[Guoqiaotudou · Rating 3 out of 5]

非法律爱好者，实在是没看进去，还是在集中学习这种大环境下，应该是不错的法律书吧。@铁人学院

[Lanie · Rating 3 out of 5]

i read it for school 😐

lowkey good for a school book. made me think about if i wanna be a lawyer or not

[Lula · Rating 5 out of 5]

从法官的角度看不同观点很有意思

[Jazzy · Rating 5 out of 5]

作者分饰十三角，还能互相讽刺，太牛了

[Siri Hsu]

法哲學的思想激盪。以文類來說若非石破天驚至少也是別出心裁，很好看。法官的美德。

[VICKY · Rating 4 out of 5]

It’s not an easy book for someone like me who doesn’t have a law background. But the perspectives from 9 judges are very inspiring.

[Bruce · Rating 4 out of 5]

条子推荐，一口气读完几个案例，真是挺不错的

[JessicaWong · Rating 4 out of 5]

看的中文版 法理学老师要求看的

[Ji · Rating 5 out of 5]

Finally finished reading this book I marked since years ago after watching the famous Harvard open course - Justice: what is the right thing to do? It's a great read to a law layman like me, as intellectually interesting as Gödel's incompleteness theorem in the philosophy of law. Thinking around the case can go directly to questioning why law existed, how it works hand in hand (or not) with morality issues, and different ways law can be interpreted, exercised, etc.

The original case (similar to Chinese 公案) by Fuller consisted of 5 opinions. Suber's extended version has 9 more opinions 50 years later. These are two different sets and should be read differently. Fuller's opinions may be considered (more abstract or) deeper and covering more fundamental issues in the universe of law, while Suber's opinions may be considered more modern, more practical, and more relatable to contemporary ways of thinking. When reading through the 14 opinions, I find myself easily swayed from one to the other, finding the logic generally sound and convincing. It's like listening to an Intelligence Squared debate with 14 experts. Exciting experience.

At the same time, I find it frustrating to try to "judge" in a situation where nobody is right or wrong. My instinctual avoidance of "judging" may be due to my Chinese roots, where judging and convincing is not the key results in philosophical debates (while maintaining "equal-ness" 中庸 is usually the only right solution). At the same time, I feel weak about myself not able to judge or try to have an opinion, not to mention try to convince others with my opinion. In the normal world, we often want to avoid rushing into a conclusion based on superficial judge-mentality, while in the world of law, the judges think through all lawful reasonings and are still able to reach a conclusion, not because they rushed to conclusions, but because they have to judge.

I think this is a completely different world from mine, and I'm curious about it.