The Case of Speluncean Explorers (In a nutshell)


FACTS: Five cave explorers got trapped underground, whilst on an expedition, following the collapse of a cave wall. Any scope of rescue was at least 10 days away and the last radio transmission received by them was from a doctor (following which the radio; their only means of communicating with the outside world ran out of battery), conveyed to them that the only manner in which they could survive till the arrival of the rescue team would be if they were to consume one of their own, given that they had run out of food and water supplies.

One of the explorers, Whetmore, suggested that they throw dice to determine (i.e. random probability) who amongst them should be the sacrifice. This was held as reasonable by everyone after which, they all agreed to follow through with the plan of action. However, just before the dice was thrown, Whetmore backed out of the agreement. He was outvoted, and a dice was thrown on his behalf. Whetmore lost.

About ten members of the rescue team also died while trying to remove the rocks from the opening of the cave and when they finally reached the explorers, they found that Whetmore had been killed and eaten.

The remaining explorers were put on trial for murder in the Supreme Court under the jurisdictions statute, "Whoever shall wilfully take the life of another shall be punished by death." 

ISSUE: THW acquit them all.


The first question that we all need to ask ourselves before we start judging this case is to simply look upon the facts and determine if there is something at all about this situation that is unique and exceptional and would allow for exemption of these men to be tried under the jurisdiction of the applicable statute and man-made laws in general and secondly, to also question whether the actions of these men, puts them at the same pedestal with the other murderers convicted in the past under this statute (for example a man raping and killing a five year old girl).

State of civil society v. state of nature:  All laws that exist in society are based upon the assumption that man’s coexistence is possible in the first place, that a society can function as a collective comprising of individuals that can live and function in a state of civil society. However when this very co-existence comes in scrutiny, like in this case where co-existence would have implied a sure death of all explorers, the law cannot possible apply, for it is the state of nature. State of nature is to put simply where the law of nature, i.e. survival above all prevails and ought to prevail as well for the sake of justice.  Even in this situation, the cave explorers were literally cut off from the world and were out on their own, without any hope of surviving unless they did the needful. Even maritime laws allow for complete acquittal of crewmen aboard a ship, in case they commit murder of one of their own if that one person becomes mentally unstable and consequently a danger to the lives of the remaining crewmen. In such cases can our statues really judge them? Clearly not.

Man made laws v. natural laws: One cannot turn a blind eye to the Purpose for which all laws exist. Clearly the aim of this statute couldn’t have been to pass a blanket judgement even if it came at the cost of delivering injustice. Positive or man-made laws are only a subset of natural laws, laws that play a larger role in situations such as this, for the purpose of these laws is safeguarding the lives and interests of people, but if their existence or non-existence plays no part in fulfilling that purpose, then the natural law, self preservation, is the only course of action to take. It seems highly unfair that these people be dragged and judged under this statute, given their only folly was to ensure they somehow survive. (cessante ratione legis cessat ipsa lex- when the reason for the law ceases, the law itself ceases).

Lawlessness v. Circumstantial law: Even if, we were to reject the argument above and consider this solely under the periphery of man- made laws, then we cannot ignore that all laws aren’t universally applied, in fact they differ significantly in some cases even giving two polar opposite results for the same case. This arrangement is made in order to modify and mould the laws according to the society, people, tradition and most importantly circumstances prevalent. For eg, religious tolerance is given greater levy in India than France, in order to facilitate “general circumstances-friendly” justice delivery. How can we rigidly apply this very statute in this case, instead of moulding it according to this unique situation? The proposition isn’t pro-lawlessness but instead pro circumstantially evolved laws.

***The state ceases to hold jurisdiction over this situation by virtue of its failure to uphold the social contract within the context. Given that inside the cave, the five men had access to no state machinery or mechanism that would enable them to access their rights or any form of justice, they are thereby suspended in a state of nature whereby the sole vehicle of justice is natural law which is discussed and explained above. This can be interpreted either as the state devolving the duty and right to fend for oneself in a situation where the state is incapable of fulfilling its role as in the case of self-defence or as a situation where the existence of the state has become a redundancy within the context, thereby necessitating its replacement by another mechanism to fulfil the purposes of ensuring the individuals’ survival.

If it was proper that these ten lives should be sacrificed to save the lives of five imprisoned explorers, why then are we told it was wrong for these explorers to carry out an arrangement which would save four lives at the cost of one? Every highway, every tunnel, every building we project involves a risk to human life. Taking these projects in the aggregate, we can calculate with some precision how many deaths the construction of them will require; statisticians can tell you the average cost in human lives of a thousand miles of a four-lane concrete highway. Yet we deliberately and knowingly incur and pay this cost on the assumption that the values obtained for those who survive outweigh the loss. If these things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which these defendants and their companion Whetmore found themselves?


The principle of self-defence, which is an exception to this statute in New Garth applies to this case as well. Is it not true that had Whetmore been let be, these five explorers present here today wouldn’t have been alive at all. One of the major components of murder is also mala fide intent, which is clearly lacking in this case. Countries go to wars and justify it by tagging it pre-emptive strike for self defence, then why is that liberty being denied to these explorers?



Eg. Of government not taking organs of a living man for utilitarian purposes.


The gist of above arguments may be stated in the following terms: No statute, whatever its language, should be applied in a way that contradicts its purpose. One of the purposes of any criminal statute is to deter. The application of the statute making it a crime to kill another to the peculiar facts of this case would contradict this purpose, for it is impossible to believe that the contents of the criminal code could operate in a deterrent manner on men faced with the alternative of life or death. The reasoning by which this exception is read into the statute is the same as that which is applied in order to provide the excuse of self-defence.

This is Commonwealth v. Valjean. Though the case is somewhat obscurely reported, it appears that the defendant was indicted for the larceny of a loaf of bread, and offered as a defence that he was in a condition approaching starvation. The court refused to accept this defence. If hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man? Again, if we look at the thing in terms of deterrence, is it likely that a man will starve to death to avoid a jail sentence for the theft of a loaf of bread?

*** Under Construction

*For the complete case: The case of the speluncean explorers.


Decide the case under one of the what-if scenarios given below.
*       What if the men had not used a lottery but killed Whetmore because he was the only one with no family, and was already dying of an injury sustained by him by being hit by the rocks, when the cave wall collapsed?
*       What if Whetmore had tried to defend himself by attacking his fellow explorers with a dagger and yet the survivors had succeeded in killing him anyway?
*       What if Whetmore had defended himself by killing (say) Smith and as a result, the party ate Smith instead of Whetmore. (For this to work, we must suppose that Whetmore, at least, was prosecuted for murdering Smith.)
*       What if a Newgarth judge had been on the scene at the rescue camp and had told the spelunkers by radio that the act they were contemplating would be considered murder under Newgarth law? 



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