Wednesday, April 12, 2006

Lon Fuller and the Speluncean Explorers: cannibalism and jurisprudence

When the going gets tough, what do the tough do when not everyone is going to make it? How does law persist, if at all, in emergencies? From the movie Alive, about Uruguayan Flight 571, to the Tragically Hip song Nautical Disaster (lyrics below the fold), we've been fascinated with killing or eating those unfortunate enough not to fit through the passage to the future as tragedy funnels our options down. "Go on without me" becomes "I will go on with you--your body."

There are two famous cases about sea-farers who elect to kill or eat passengers when survival is at stake--U.S. v. Holmes, and Regina v. Dudley & Stephens. But sometimes fiction is in turn stranger, or in sharper relief, even than truth. A fictitious case of a cave-outing is probably more famous than Holmes or Dudley in the legal world.

The jurisprudence of human sacrifice--propitiations to the gods, or to hunger; the opposition of action and passion--has been most simply laid out by Lon Fuller in his The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616. A cave-in traps a party: they are forced to choose who will live and who will die. Fuller gives five judicial opinions on the appeal of the convicted defendants: each judge gives his reasons for applying the positive law as written, or recognizing a higher law, and so forth. The final, tie-breaking vote is a metaphor for the entire project: the survivors' choice between murder and death is a decision that only God can understand, and the final judge finds himself unable to be the deus ex machina, refusing to vote--and thus affirming the lower court judgment, and condemning the prisoners to death by his inaction. He chooses their deaths, and the death of positive jurisprudence under the weight of worldly uncertainty, reversing the murders in the cave despite the murderers' efforts to go forth into the light. As Gord Downie states, the fingernails of those left behind scratch on our hulls even as we wonder whether the lifeboat exists at all.

I had this dream where I relished
The fray and the screaming filled my head all day
It was as though I'd been spit there, settled in, into a pocket
Of a lighthouse off some rocky socket,
Off the coast of France, dear

One afternoon, four thousand men died in the water here
Five hundred more were thrashing madly as parasites might in you blood
Now I was in lifeboat designed for ten and ten and only,
Anything that systematic would get you hated.
It's not a deal nor a test nor a love of something fated.
The selection was quick, the crew was picked and
those left in the water got kicked off our pant leg and we headed for home.

Then the dream ends when the phone rings
You doing alright he said it's out there, most days and nights
But only a fool would complain
Anyway Susan if you like our conversation is as faint as the sound in my memory
As those fingernails scratching on my hull

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