CBSE Textbook: Jurisprudence, Nature and Meaning of Law | Legal Studies for Class 11 - Humanities/Arts PDF Download

 Page 1


UNIT I UNIT II
UNIT III
UNIT IV UNIT V
Jurisprudence, Nature  
and Meaning of Law
Contents
I. Introduction
II. Historical Perspective 
III. Schools of Law
IV . Function and Purpose of Law
V. Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Describe the meaning, nature, essentials and objectives of law along with its multi-faced role
• Define Law and explain the meaning of jurisprudence 
• State two rules that shows natural justice is firmly grounded in Articles 14 and 21 of the 
Constitution
• Write down two points each in favour of and against conviction in Speluncean Explorers Case
• Compare the five schools of law-Natural, Analytical, Historical, Sociological and Realist Schools 
of Law
• List the distinguishing features and sources of law for each school
• Discuss the need for law in society by assessing the function and purpose of law
I. Introduction
Justitia, a Roman goddess of justice, wore a blindfold and has 
been depicted with sword and scales. Representations of the 
Lady of Justice in the Western tradition occur in many places 
and at many times. Like Justitia, she too usually carries a sword 
and scales. Almost always draped in flowing robes and mature 
but not old, she symbolizes the fair and equal administration of 
law without corruption,avarice, prejudice, or favor.
Source www.commonlaw.com/Justice.html
The law and the legal system are very important in any civilization. In modern times, no one can 
imagine a society without law and a legal system. Law is not only important for an orderly social 
life but also essential for the very existence of mankind. Therefore, it is important for everyone to 
understand the meaning of law.
CHAPTER
1
Page 2


UNIT I UNIT II
UNIT III
UNIT IV UNIT V
Jurisprudence, Nature  
and Meaning of Law
Contents
I. Introduction
II. Historical Perspective 
III. Schools of Law
IV . Function and Purpose of Law
V. Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Describe the meaning, nature, essentials and objectives of law along with its multi-faced role
• Define Law and explain the meaning of jurisprudence 
• State two rules that shows natural justice is firmly grounded in Articles 14 and 21 of the 
Constitution
• Write down two points each in favour of and against conviction in Speluncean Explorers Case
• Compare the five schools of law-Natural, Analytical, Historical, Sociological and Realist Schools 
of Law
• List the distinguishing features and sources of law for each school
• Discuss the need for law in society by assessing the function and purpose of law
I. Introduction
Justitia, a Roman goddess of justice, wore a blindfold and has 
been depicted with sword and scales. Representations of the 
Lady of Justice in the Western tradition occur in many places 
and at many times. Like Justitia, she too usually carries a sword 
and scales. Almost always draped in flowing robes and mature 
but not old, she symbolizes the fair and equal administration of 
law without corruption,avarice, prejudice, or favor.
Source www.commonlaw.com/Justice.html
The law and the legal system are very important in any civilization. In modern times, no one can 
imagine a society without law and a legal system. Law is not only important for an orderly social 
life but also essential for the very existence of mankind. Therefore, it is important for everyone to 
understand the meaning of law.
CHAPTER
1
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
In layman’s language, law can be described as ‘a system of rules and regulations which a country or 
society recognizes as binding on its citizens, which the authorities may enforce, and violation of which 
attracts punitive action’. These laws are generally contained in the constitutions, legislations, judicial 
decisions etc.
Jurists and legal scholars have not arrived at a unanimous definition of law. The problem of defining 
law is not new as it goes back centuries.
Some jurists consider Law as a ‘divinely ordered rule’ or as ‘a reflection of divine reasons’. Law has 
also been defined from philosophical, theological, historical, social and realistic angles.
It is because of these different approaches that different concepts of law and consequently various 
schools of law have emerged. Jurists hold different perceptions and understanding of what constitutes 
the law and legal systems.
II. Historical Perspective
Plato (left) is carrying a copy of his Timeus, and pointing upwards, which symbolizes his concern 
with the eternal and immutable forms. Aristotle (384 BC - 322 BC) (right) is carrying a copy of his 
Nicomachean Ethics, and keeping his hand down, which symbolizes his concern with the temporal 
and mutable world. It depicts different approaches towards law from ancient times.
Source : The Critical Thinker (TM), ‘Plato vs. Aristotle: The Classic Philosophical Duel’,http://
thecriticalthinker. wordpress.com/2009/01/12/plato-vs-aristotle
The Case of the Speluncean Explorers
The Case of the Speluncean Explorers is a fictitious case created by Lon Fuller in 1949 for the  
Harvard Law Review. The case takes place in the equally fictitious ‘Commonwealth of Newgarth’ in 
the year 4300. Fuller’s article offers five possible judicial responses. Each has a different viewpoint on 
whether the survivors should be charged for breach of law. Fuller’s account has been called a ‘classic 
in jurisprudence’ and an example of mid-20th century legal theory.
Facts
Five cave explorers (spelunkers) are trapped inside a cave following a landslide, one of them being 
Roger Whetmore. They have limited food supplies and no source of food inside the cave. The rescue 
was difficult, time-consuming, and costly due to the remote location. Ten workmen were killed in the 
rescue. Approaching starvation, a radio contact is eventually established with the rescue team on the 
20th day of the cave-in. The explorers learn that another 10 days would be required in order to free 
them. After consultation with medical experts, they were told that they are unlikely to survive another 
Page 3


UNIT I UNIT II
UNIT III
UNIT IV UNIT V
Jurisprudence, Nature  
and Meaning of Law
Contents
I. Introduction
II. Historical Perspective 
III. Schools of Law
IV . Function and Purpose of Law
V. Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Describe the meaning, nature, essentials and objectives of law along with its multi-faced role
• Define Law and explain the meaning of jurisprudence 
• State two rules that shows natural justice is firmly grounded in Articles 14 and 21 of the 
Constitution
• Write down two points each in favour of and against conviction in Speluncean Explorers Case
• Compare the five schools of law-Natural, Analytical, Historical, Sociological and Realist Schools 
of Law
• List the distinguishing features and sources of law for each school
• Discuss the need for law in society by assessing the function and purpose of law
I. Introduction
Justitia, a Roman goddess of justice, wore a blindfold and has 
been depicted with sword and scales. Representations of the 
Lady of Justice in the Western tradition occur in many places 
and at many times. Like Justitia, she too usually carries a sword 
and scales. Almost always draped in flowing robes and mature 
but not old, she symbolizes the fair and equal administration of 
law without corruption,avarice, prejudice, or favor.
Source www.commonlaw.com/Justice.html
The law and the legal system are very important in any civilization. In modern times, no one can 
imagine a society without law and a legal system. Law is not only important for an orderly social 
life but also essential for the very existence of mankind. Therefore, it is important for everyone to 
understand the meaning of law.
CHAPTER
1
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
In layman’s language, law can be described as ‘a system of rules and regulations which a country or 
society recognizes as binding on its citizens, which the authorities may enforce, and violation of which 
attracts punitive action’. These laws are generally contained in the constitutions, legislations, judicial 
decisions etc.
Jurists and legal scholars have not arrived at a unanimous definition of law. The problem of defining 
law is not new as it goes back centuries.
Some jurists consider Law as a ‘divinely ordered rule’ or as ‘a reflection of divine reasons’. Law has 
also been defined from philosophical, theological, historical, social and realistic angles.
It is because of these different approaches that different concepts of law and consequently various 
schools of law have emerged. Jurists hold different perceptions and understanding of what constitutes 
the law and legal systems.
II. Historical Perspective
Plato (left) is carrying a copy of his Timeus, and pointing upwards, which symbolizes his concern 
with the eternal and immutable forms. Aristotle (384 BC - 322 BC) (right) is carrying a copy of his 
Nicomachean Ethics, and keeping his hand down, which symbolizes his concern with the temporal 
and mutable world. It depicts different approaches towards law from ancient times.
Source : The Critical Thinker (TM), ‘Plato vs. Aristotle: The Classic Philosophical Duel’,http://
thecriticalthinker. wordpress.com/2009/01/12/plato-vs-aristotle
The Case of the Speluncean Explorers
The Case of the Speluncean Explorers is a fictitious case created by Lon Fuller in 1949 for the  
Harvard Law Review. The case takes place in the equally fictitious ‘Commonwealth of Newgarth’ in 
the year 4300. Fuller’s article offers five possible judicial responses. Each has a different viewpoint on 
whether the survivors should be charged for breach of law. Fuller’s account has been called a ‘classic 
in jurisprudence’ and an example of mid-20th century legal theory.
Facts
Five cave explorers (spelunkers) are trapped inside a cave following a landslide, one of them being 
Roger Whetmore. They have limited food supplies and no source of food inside the cave. The rescue 
was difficult, time-consuming, and costly due to the remote location. Ten workmen were killed in the 
rescue. Approaching starvation, a radio contact is eventually established with the rescue team on the 
20th day of the cave-in. The explorers learn that another 10 days would be required in order to free 
them. After consultation with medical experts, they were told that they are unlikely to survive another 
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
69
10 days without food. The explorers inquire the doctors about their chances of surviving if they killed 
and ate one of their own.
The doctors hesitantly stated that they would. No one on the rescue team said yes when asked if they 
should hold a lottery to decide who to kill and eat. The radio is turned off, and later a lottery is held. 
The explorers were initially hesitant to use this desperate step, but after hearing the radio chats, they 
agreed.
Roger Whetmore proposed casting lots, using a pair of dice he happened to have with him. Roger 
Whetmore backed out of the deal before the dice were rolled, indicating he would wait another week. 
The other accused him of betraying their trust and continued to cast the dice. 
The defendants invited Whetmore to announce any concerns to the fairness of the dice throw before 
throwing it on his behalf. He didn’t raise an objection, and the throw went against him. Whetmore 
was put to death and devoured.
In the Case of the Speluncean Explorers, the person to be eaten was chosen by 
throwing a pair of dice.
Following their rescue and recovery, the survivors were charged with murder of Roger Whetmore. In 
the Commonwealth of Newgarth, the mandatory sentence for murder is death by hanging.
On the facts as found by the jury, the trial judge ruled that the defendants were guilty of murder and 
sentenced them to be hanged. 
Post-trial, both the trial judge and the jury joined in a petition to the Chief Executive of Newgarth, to 
commute the death sentence of surviving explorers to six months’ imprisonment. The Chief Executive 
waits for the Supreme Court’s disposition of the petition of error before making a decision regarding 
clemency.
Jury involved in Judgement 
•	 Chief	Justice	T ruepenn y
•	 Justice	F oster
•	 Justice	T atting
•	 Justice	Keen
•	 Justice	Handy
In your opinion, should they be acquitted or convicted for murder?
Opinion of Chief Justice Truepenny
Verdict: Guilty
Chief Justice Truepenny holds that in this extraordinary case, the course followed by the jury and 
trial judge was not only ‘fair and wise’ but the only one open to them to be taken under the law. He 
believes that the statute is unambiguous and must be applied by the judiciary. The public opinion and 
sentiment has no sway over the word of the law.
Moreover, granting mercy falls within the scope of the executive and not the judiciary. The Chief 
Justice depends on the possibility of executive clemency to mitigate the word of law. He proposes 
that the Supreme Court petitions the Chief Executive for clemency. Thus, by relying on the executive, 
justice can be done without violating the letter or spirit of the law.  
Thus, Truepenny CJ upholds the conviction but recommends clemency. 
Page 4


UNIT I UNIT II
UNIT III
UNIT IV UNIT V
Jurisprudence, Nature  
and Meaning of Law
Contents
I. Introduction
II. Historical Perspective 
III. Schools of Law
IV . Function and Purpose of Law
V. Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Describe the meaning, nature, essentials and objectives of law along with its multi-faced role
• Define Law and explain the meaning of jurisprudence 
• State two rules that shows natural justice is firmly grounded in Articles 14 and 21 of the 
Constitution
• Write down two points each in favour of and against conviction in Speluncean Explorers Case
• Compare the five schools of law-Natural, Analytical, Historical, Sociological and Realist Schools 
of Law
• List the distinguishing features and sources of law for each school
• Discuss the need for law in society by assessing the function and purpose of law
I. Introduction
Justitia, a Roman goddess of justice, wore a blindfold and has 
been depicted with sword and scales. Representations of the 
Lady of Justice in the Western tradition occur in many places 
and at many times. Like Justitia, she too usually carries a sword 
and scales. Almost always draped in flowing robes and mature 
but not old, she symbolizes the fair and equal administration of 
law without corruption,avarice, prejudice, or favor.
Source www.commonlaw.com/Justice.html
The law and the legal system are very important in any civilization. In modern times, no one can 
imagine a society without law and a legal system. Law is not only important for an orderly social 
life but also essential for the very existence of mankind. Therefore, it is important for everyone to 
understand the meaning of law.
CHAPTER
1
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
In layman’s language, law can be described as ‘a system of rules and regulations which a country or 
society recognizes as binding on its citizens, which the authorities may enforce, and violation of which 
attracts punitive action’. These laws are generally contained in the constitutions, legislations, judicial 
decisions etc.
Jurists and legal scholars have not arrived at a unanimous definition of law. The problem of defining 
law is not new as it goes back centuries.
Some jurists consider Law as a ‘divinely ordered rule’ or as ‘a reflection of divine reasons’. Law has 
also been defined from philosophical, theological, historical, social and realistic angles.
It is because of these different approaches that different concepts of law and consequently various 
schools of law have emerged. Jurists hold different perceptions and understanding of what constitutes 
the law and legal systems.
II. Historical Perspective
Plato (left) is carrying a copy of his Timeus, and pointing upwards, which symbolizes his concern 
with the eternal and immutable forms. Aristotle (384 BC - 322 BC) (right) is carrying a copy of his 
Nicomachean Ethics, and keeping his hand down, which symbolizes his concern with the temporal 
and mutable world. It depicts different approaches towards law from ancient times.
Source : The Critical Thinker (TM), ‘Plato vs. Aristotle: The Classic Philosophical Duel’,http://
thecriticalthinker. wordpress.com/2009/01/12/plato-vs-aristotle
The Case of the Speluncean Explorers
The Case of the Speluncean Explorers is a fictitious case created by Lon Fuller in 1949 for the  
Harvard Law Review. The case takes place in the equally fictitious ‘Commonwealth of Newgarth’ in 
the year 4300. Fuller’s article offers five possible judicial responses. Each has a different viewpoint on 
whether the survivors should be charged for breach of law. Fuller’s account has been called a ‘classic 
in jurisprudence’ and an example of mid-20th century legal theory.
Facts
Five cave explorers (spelunkers) are trapped inside a cave following a landslide, one of them being 
Roger Whetmore. They have limited food supplies and no source of food inside the cave. The rescue 
was difficult, time-consuming, and costly due to the remote location. Ten workmen were killed in the 
rescue. Approaching starvation, a radio contact is eventually established with the rescue team on the 
20th day of the cave-in. The explorers learn that another 10 days would be required in order to free 
them. After consultation with medical experts, they were told that they are unlikely to survive another 
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
69
10 days without food. The explorers inquire the doctors about their chances of surviving if they killed 
and ate one of their own.
The doctors hesitantly stated that they would. No one on the rescue team said yes when asked if they 
should hold a lottery to decide who to kill and eat. The radio is turned off, and later a lottery is held. 
The explorers were initially hesitant to use this desperate step, but after hearing the radio chats, they 
agreed.
Roger Whetmore proposed casting lots, using a pair of dice he happened to have with him. Roger 
Whetmore backed out of the deal before the dice were rolled, indicating he would wait another week. 
The other accused him of betraying their trust and continued to cast the dice. 
The defendants invited Whetmore to announce any concerns to the fairness of the dice throw before 
throwing it on his behalf. He didn’t raise an objection, and the throw went against him. Whetmore 
was put to death and devoured.
In the Case of the Speluncean Explorers, the person to be eaten was chosen by 
throwing a pair of dice.
Following their rescue and recovery, the survivors were charged with murder of Roger Whetmore. In 
the Commonwealth of Newgarth, the mandatory sentence for murder is death by hanging.
On the facts as found by the jury, the trial judge ruled that the defendants were guilty of murder and 
sentenced them to be hanged. 
Post-trial, both the trial judge and the jury joined in a petition to the Chief Executive of Newgarth, to 
commute the death sentence of surviving explorers to six months’ imprisonment. The Chief Executive 
waits for the Supreme Court’s disposition of the petition of error before making a decision regarding 
clemency.
Jury involved in Judgement 
•	 Chief	Justice	T ruepenn y
•	 Justice	F oster
•	 Justice	T atting
•	 Justice	Keen
•	 Justice	Handy
In your opinion, should they be acquitted or convicted for murder?
Opinion of Chief Justice Truepenny
Verdict: Guilty
Chief Justice Truepenny holds that in this extraordinary case, the course followed by the jury and 
trial judge was not only ‘fair and wise’ but the only one open to them to be taken under the law. He 
believes that the statute is unambiguous and must be applied by the judiciary. The public opinion and 
sentiment has no sway over the word of the law.
Moreover, granting mercy falls within the scope of the executive and not the judiciary. The Chief 
Justice depends on the possibility of executive clemency to mitigate the word of law. He proposes 
that the Supreme Court petitions the Chief Executive for clemency. Thus, by relying on the executive, 
justice can be done without violating the letter or spirit of the law.  
Thus, Truepenny CJ upholds the conviction but recommends clemency. 
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
70
Opinion of Justice Foster
Verdict: Innocent
Natural Law
Justice Foster makes two main points in determining whether the convictions should be overturned or 
not. Firstly, the explorers were not in a ‘state of civil society’ but in a ‘state of nature’. Consequently, 
the laws of Commonwealth of Newgarth do not apply but laws of nature applied to them. Within the 
scope of the laws of nature, it is acceptable to sacrifice one person if it means the others (many) can 
survive.
Secondly, the purpose of the statute should be considered if it is assumed that laws of Newgarth 
did apply to the facts of the case. Therefore, a ‘purposive approach’ must be taken to the statute. 
The judges can find an exception to the law just like the courts had done earlier with self defence. 
The main aim of criminal law is punishing the criminals, and by that punishment, deterring further 
offenders. In this case, punishing the offenders will not serve the purpose of deterrence. 
It is not necessarily judicial activism, as the judges have a certain leeway in interpretation of the law 
especially in cases that are extraordinary in nature. The decision made by the judges in this case 
would not be going against the will of the legislature, but ensuring that the legislative will is effective. 
Justice Foster concludes that the conviction should be set aside.
Opinion of Justice Tatting
Verdict: Uncertain; Recuses
Justice Tatting is torn between empathy for the defendants and the disgust over the horrible act that 
they had to commit to survive. Finally, he finds that he is unable to reach a decision. He criticizes 
the view under natural law that prioritises freedom of contract to kill above the right to life in state of 
nature.
He also notes the difficulty of applying the purposive approach to the criminal statute which has 
multiple purposes, including retribution and rehabilitation. He finds that the self-defence exception 
could not be applied to the present case as it would raise many challenges. The doctrine that is taught 
in law schools is that ‘The man who acts to repel an aggressive threat to his own life does not act 
wilfully, but in response to an impulse deeply ingrained in human nature’. In the case of the explorers, 
they not only acted wilfully but deliberated before killing Roger Whetmore.
The judge cites the case of Commonwealth v Valjean, in which starvation was held not to justify 
the theft of a loaf of bread, let alone homicide (killing of a person). In this case the defendant was 
charged for theft of a loaf of bread, and he pleaded starving condition as a defense. The court refused 
to accept it. Thus, raising a question- If hunger cannot justify the theft of food, then how can it justify 
killing and eating of a man? Justice Tatting rejects J Foster’s reasoning but he cannot decide due to 
competing legal rationales and emotions.
Justice Tatting makes the unprecedented decision of withdrawing from the case. 
Opinion of Justice Keen
Verdict: Guilty
Positivism
Justice	 Keen	 raises	 two	 questions	 that	 ar e	 not	 matters	 for	 the	 cour t:	 that	 of	 e xecutive	 clemency	 and	
that	 of	 morality .	 Justice	 Keen	 stated	 that	 it	 is	 not	 for	 the	 judiciar y	 to	 decide	 whether	 e xecutive	 clemency	
Page 5


UNIT I UNIT II
UNIT III
UNIT IV UNIT V
Jurisprudence, Nature  
and Meaning of Law
Contents
I. Introduction
II. Historical Perspective 
III. Schools of Law
IV . Function and Purpose of Law
V. Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Describe the meaning, nature, essentials and objectives of law along with its multi-faced role
• Define Law and explain the meaning of jurisprudence 
• State two rules that shows natural justice is firmly grounded in Articles 14 and 21 of the 
Constitution
• Write down two points each in favour of and against conviction in Speluncean Explorers Case
• Compare the five schools of law-Natural, Analytical, Historical, Sociological and Realist Schools 
of Law
• List the distinguishing features and sources of law for each school
• Discuss the need for law in society by assessing the function and purpose of law
I. Introduction
Justitia, a Roman goddess of justice, wore a blindfold and has 
been depicted with sword and scales. Representations of the 
Lady of Justice in the Western tradition occur in many places 
and at many times. Like Justitia, she too usually carries a sword 
and scales. Almost always draped in flowing robes and mature 
but not old, she symbolizes the fair and equal administration of 
law without corruption,avarice, prejudice, or favor.
Source www.commonlaw.com/Justice.html
The law and the legal system are very important in any civilization. In modern times, no one can 
imagine a society without law and a legal system. Law is not only important for an orderly social 
life but also essential for the very existence of mankind. Therefore, it is important for everyone to 
understand the meaning of law.
CHAPTER
1
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
In layman’s language, law can be described as ‘a system of rules and regulations which a country or 
society recognizes as binding on its citizens, which the authorities may enforce, and violation of which 
attracts punitive action’. These laws are generally contained in the constitutions, legislations, judicial 
decisions etc.
Jurists and legal scholars have not arrived at a unanimous definition of law. The problem of defining 
law is not new as it goes back centuries.
Some jurists consider Law as a ‘divinely ordered rule’ or as ‘a reflection of divine reasons’. Law has 
also been defined from philosophical, theological, historical, social and realistic angles.
It is because of these different approaches that different concepts of law and consequently various 
schools of law have emerged. Jurists hold different perceptions and understanding of what constitutes 
the law and legal systems.
II. Historical Perspective
Plato (left) is carrying a copy of his Timeus, and pointing upwards, which symbolizes his concern 
with the eternal and immutable forms. Aristotle (384 BC - 322 BC) (right) is carrying a copy of his 
Nicomachean Ethics, and keeping his hand down, which symbolizes his concern with the temporal 
and mutable world. It depicts different approaches towards law from ancient times.
Source : The Critical Thinker (TM), ‘Plato vs. Aristotle: The Classic Philosophical Duel’,http://
thecriticalthinker. wordpress.com/2009/01/12/plato-vs-aristotle
The Case of the Speluncean Explorers
The Case of the Speluncean Explorers is a fictitious case created by Lon Fuller in 1949 for the  
Harvard Law Review. The case takes place in the equally fictitious ‘Commonwealth of Newgarth’ in 
the year 4300. Fuller’s article offers five possible judicial responses. Each has a different viewpoint on 
whether the survivors should be charged for breach of law. Fuller’s account has been called a ‘classic 
in jurisprudence’ and an example of mid-20th century legal theory.
Facts
Five cave explorers (spelunkers) are trapped inside a cave following a landslide, one of them being 
Roger Whetmore. They have limited food supplies and no source of food inside the cave. The rescue 
was difficult, time-consuming, and costly due to the remote location. Ten workmen were killed in the 
rescue. Approaching starvation, a radio contact is eventually established with the rescue team on the 
20th day of the cave-in. The explorers learn that another 10 days would be required in order to free 
them. After consultation with medical experts, they were told that they are unlikely to survive another 
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
69
10 days without food. The explorers inquire the doctors about their chances of surviving if they killed 
and ate one of their own.
The doctors hesitantly stated that they would. No one on the rescue team said yes when asked if they 
should hold a lottery to decide who to kill and eat. The radio is turned off, and later a lottery is held. 
The explorers were initially hesitant to use this desperate step, but after hearing the radio chats, they 
agreed.
Roger Whetmore proposed casting lots, using a pair of dice he happened to have with him. Roger 
Whetmore backed out of the deal before the dice were rolled, indicating he would wait another week. 
The other accused him of betraying their trust and continued to cast the dice. 
The defendants invited Whetmore to announce any concerns to the fairness of the dice throw before 
throwing it on his behalf. He didn’t raise an objection, and the throw went against him. Whetmore 
was put to death and devoured.
In the Case of the Speluncean Explorers, the person to be eaten was chosen by 
throwing a pair of dice.
Following their rescue and recovery, the survivors were charged with murder of Roger Whetmore. In 
the Commonwealth of Newgarth, the mandatory sentence for murder is death by hanging.
On the facts as found by the jury, the trial judge ruled that the defendants were guilty of murder and 
sentenced them to be hanged. 
Post-trial, both the trial judge and the jury joined in a petition to the Chief Executive of Newgarth, to 
commute the death sentence of surviving explorers to six months’ imprisonment. The Chief Executive 
waits for the Supreme Court’s disposition of the petition of error before making a decision regarding 
clemency.
Jury involved in Judgement 
•	 Chief	Justice	T ruepenn y
•	 Justice	F oster
•	 Justice	T atting
•	 Justice	Keen
•	 Justice	Handy
In your opinion, should they be acquitted or convicted for murder?
Opinion of Chief Justice Truepenny
Verdict: Guilty
Chief Justice Truepenny holds that in this extraordinary case, the course followed by the jury and 
trial judge was not only ‘fair and wise’ but the only one open to them to be taken under the law. He 
believes that the statute is unambiguous and must be applied by the judiciary. The public opinion and 
sentiment has no sway over the word of the law.
Moreover, granting mercy falls within the scope of the executive and not the judiciary. The Chief 
Justice depends on the possibility of executive clemency to mitigate the word of law. He proposes 
that the Supreme Court petitions the Chief Executive for clemency. Thus, by relying on the executive, 
justice can be done without violating the letter or spirit of the law.  
Thus, Truepenny CJ upholds the conviction but recommends clemency. 
UNIT I UNIT II
UNIT III
UNIT IV UNIT V
70
Opinion of Justice Foster
Verdict: Innocent
Natural Law
Justice Foster makes two main points in determining whether the convictions should be overturned or 
not. Firstly, the explorers were not in a ‘state of civil society’ but in a ‘state of nature’. Consequently, 
the laws of Commonwealth of Newgarth do not apply but laws of nature applied to them. Within the 
scope of the laws of nature, it is acceptable to sacrifice one person if it means the others (many) can 
survive.
Secondly, the purpose of the statute should be considered if it is assumed that laws of Newgarth 
did apply to the facts of the case. Therefore, a ‘purposive approach’ must be taken to the statute. 
The judges can find an exception to the law just like the courts had done earlier with self defence. 
The main aim of criminal law is punishing the criminals, and by that punishment, deterring further 
offenders. In this case, punishing the offenders will not serve the purpose of deterrence. 
It is not necessarily judicial activism, as the judges have a certain leeway in interpretation of the law 
especially in cases that are extraordinary in nature. The decision made by the judges in this case 
would not be going against the will of the legislature, but ensuring that the legislative will is effective. 
Justice Foster concludes that the conviction should be set aside.
Opinion of Justice Tatting
Verdict: Uncertain; Recuses
Justice Tatting is torn between empathy for the defendants and the disgust over the horrible act that 
they had to commit to survive. Finally, he finds that he is unable to reach a decision. He criticizes 
the view under natural law that prioritises freedom of contract to kill above the right to life in state of 
nature.
He also notes the difficulty of applying the purposive approach to the criminal statute which has 
multiple purposes, including retribution and rehabilitation. He finds that the self-defence exception 
could not be applied to the present case as it would raise many challenges. The doctrine that is taught 
in law schools is that ‘The man who acts to repel an aggressive threat to his own life does not act 
wilfully, but in response to an impulse deeply ingrained in human nature’. In the case of the explorers, 
they not only acted wilfully but deliberated before killing Roger Whetmore.
The judge cites the case of Commonwealth v Valjean, in which starvation was held not to justify 
the theft of a loaf of bread, let alone homicide (killing of a person). In this case the defendant was 
charged for theft of a loaf of bread, and he pleaded starving condition as a defense. The court refused 
to accept it. Thus, raising a question- If hunger cannot justify the theft of food, then how can it justify 
killing and eating of a man? Justice Tatting rejects J Foster’s reasoning but he cannot decide due to 
competing legal rationales and emotions.
Justice Tatting makes the unprecedented decision of withdrawing from the case. 
Opinion of Justice Keen
Verdict: Guilty
Positivism
Justice	 Keen	 raises	 two	 questions	 that	 ar e	 not	 matters	 for	 the	 cour t:	 that	 of	 e xecutive	 clemency	 and	
that	 of	 morality .	 Justice	 Keen	 stated	 that	 it	 is	 not	 for	 the	 judiciar y	 to	 decide	 whether	 e xecutive	 clemency	
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should be extended to the defendants. 
The morality of the defendants’ actions is not something that the courts should concern themselves 
with or judge, as this falls outside their scope and ambit and is in violation of the doctrine of separation 
of powers. The Chief Executive should be petitioned for clemency and the decision should be left up 
to	 him.	 Keen	 J	 states	 that	 the	 difficulties	 in	 deciding	 the	 case	 arise	 from	 a	 failur e	 to	 separate	 the	 legal	
and moral aspects of the case. 
Justice	 Keen	 maintains	 that	 he	 does	 not	 concer n	 himself	 with	 questions	 of	 ‘ right’	 and	 ‘ wrong’.	 He	
agrees that the defendants have gone through extreme suffering, but that is his opinion as an individual 
and not a Judge. 
Judges are not to apply their conceptions of morality, but to apply the ‘law of the land’. In this case, 
the sole question before the court to decide is purely one of applying the legislation of Newgarth and 
determining whether the defendants willfully took the life of Roger Whetmore.  Everything outside of 
that is outside their consideration. 
He criticises his fellow judges because he believes that they are being influenced by their personal 
emotions and prioritizing that over the word of the law and he is determined to put personal views 
aside. He is averse to Justice Foster’s purposive approach to statutory interpretation that would allow 
the court to justify a result it considers proper. He emphasizes that laws may have many possible 
purposes, with difficulties arising in divining the actual “purpose” of a piece of legislation. 
The actions of the defendants clearly fall within the scope of the statutory provision. A hard decision 
is	never	a	popular	decision.	Justice	Keen	affir ms	the	conviction.
Opinion of Justice Handy
Verdict: Innocent
Legal Realism; Common Sense
Justice Handy holds the case to be one of application of practical wisdom. As per him, court should 
take account of public opinion and ‘common sense’. For him, it is a simple decision. He is aware 
that a vast majority want the sentence to be mitigated or pardoned. He criticizes his fellow judges for 
hiding behind the technical wording of the law. He emphasizes the need for the courts to maintain 
public confidence, which requires them to follow 90% majority opinion. Government is ‘a human 
affair’ in which people ‘are ruled well when their rulers understand the feelings and conceptions of 
the masses’. Judiciary is one branch of the government that is most likely to lose its contact with the 
common man. Justice Handy states that to preserve the harmony between the judiciary and public 
opinion, the defendants should be declared innocent. If these men are pardoned no one will think 
that the statute was stretched any more than our ancestors did when they created the excuse of self-
defence. He is aware that his fellow judges will without doubt be troubled by the suggestion of taking 
into account the emotional public opinion. 
Justice Handy taking a common-sense approach, concludes the defendants are innocent and states 
that the conviction should be set aside. 
Verdict by the Court:
The Supreme Court, divided evenly, affirmed the conviction. Fuller provides no further details as to 
the outcome. 
Both the trial judge and members of the jury petition the Chief Executive to commute the sentence of 
the surviving spelunkers from the death penalty to six months’ imprisonment.