The Case of the Speluncean Explorers by Lon Fuller is a classic 1949 law review article that all law students should read. Many thanks to Professor Michael Krauss who first introduced this article to me. I hope my students enjoyed it as much as I did.
The story is set in the year 4300 AD in the fictional state of Newgarth. It tells the story of explorers who are trapped in a cave without adequate supplies. The explorers know that the rescuers will be unable to reach them in time, so they decide they must resort to cannibalism in order to survive. The explorers decide to cast lots, to determine who should be eaten. One of the members is selected, and is eaten. After the surviving explorers are rescued, they are found guilty of murder. The case is appealed to the Newgarth Supreme Court and 5 Justices consider the case. Each of the Justices represents a different modality of jurisprudential thinking.
In the second part of discussion, we focus on natural law, the state of nature, civil society, and the social compact. When the spelunkers were trapped in the cave, did they leave civil society and enter a state of nature? If so, were they still subject to the laws of civil society?
I start with the State of Nature according to Locke, Hobbes, and Rosseau. I also bring in readings from Scalia’s Matter of Interpretation, Breyer’s Active Liberty, Posner’s How Judge’s Think, Calabresi’s A Common Law for the Age of Statutes, and others. Also brought in Scalia’s dissenting opinion from Troxel v. Granville, DeShaney v. Winnebago County, Castle Rock v. Gonzales, Church of the Holy Trinity, and others. And of course, I asked them to interpret the “No Vehicles in the Park” sign. Excellent discussion.
By the way, during the break the students were chatting about some Schwarzenegger movie, so I segued into natural law with a discussion of what law applies in Terminator world after Judgment Day.
And around 1:10:00 I bid the class good bye, and thank them for being such a wonderful class. This was my favorite class of the term. I’ll blog a bit more about my reflections on teaching at a later date.http://joshblackman.com/podcasts/fedcts/speluncean2.m4a
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