The Case of the Speluncean Explorers: Nine New Opinions

The Case of the Speluncean Explorers: Nine New Opinions

The Case of the Speluncean Explorers: Nine New Opinions

The Case of the Speluncean Explorers: Nine New Opinions


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.


Lon Fuller's Case of the Speluncean Explorers is the greatest fictitious legal case of all time. That is saying a lot, for it has some stiff competition. While its competitors may outdo it in courtroom drama, character development, or investigative suspense, none matches it in legal depth or dialectical agility. It shows not what makes some lawyer's caseload interesting, but what makes law itself interesting. It would not make a good movie; it is all "talking heads." In fact, the parts that would make a good movie-the events within the cave-are over and done with by the time Fuller begins his piece. Moreover, these events are not depicted with cinematic vivacity, but described after the fact with judicial precision and blandness.

Fuller's five Supreme Court justices tranquilly but rigorously show the complexity of the facts and the flexibility of legal reasoning. The five opinions focus on different factual details and legal precedents, and fit them into different background structures of legal and political principle. By these means Fuller crystallizes important conflicts of principle and illustrates the major schools of legal philosophy in his day. Fuller's case has been called "a classic in jurisprudence," "a microcosm of this century's debates," and a "breathtaking intellectual accomplishment." *

Although only half a century separates us from the date of Fuller's essay, the legal landscape has changed profoundly. I have written nine new judicial opinions on his case, with roughly Fuller's own objectives in view, hoping to explore important issues of principle and in the process to bring the depiction of legal philosophy up to date.

While I would like to depict the major schools of legal philosophy today, giving each its due, there are a few obstacles that subtly constrain the project.

* The first quotation is from Anthony D'Amato, "The Speluncean Explorers-Further Proceedings," Stanford Law Review, 1980, vol. 32, pp. 467-85 at p. 467. The second and third are from William N. Eskridge, Jr, "The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell," George Washington Law Review, August 1993, vol. 61, no. 6, pp. 1731-53 at p. 1732.

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