After reading the opinions of various judges in the case of The Speluncean Explorers, I found the arguments of Justice Foster well justified. Hence, I agree with him the most. He believes that the four explorers are innocent of any crime and rests his conclusion on two grounds.
Firstly, Justice Foster takes the view that positive law cannot be applied to the case. Instead, he states that law of nature should govern the case. Men’s co existence in a society is essential for the application of positive law. I agree with him because in this situation where the co existence of the men is not possible without the taking of life, positive law is not applicable. He believes “maxim cessante ratione legis, cessat et ipsa lex” which means when the reason for law ceases, the law itself ceases, should be applied to thiscase.I agree with him that the men were not guilty of crime because Roger Whetmore’s life was ended in a “state of nature” and not in a “state of civil society”. This is a case where natural law supersedes positive law. He also raised a point regarding the jurisdiction that the state had over these explorers at the time of the murder given that they were miles below the territorial jurisdiction.Also, what the men did was according to the agreement accepted by all of them.I agree with Justice Foster’s question that when the state can sacrifice the lives of ten workers trying to rescue the five explorers in the cave , then why isn’t it justified that one life be sacrificed to save the lives of four.
Secondly, he emphasizes and talks about the relevance of the golden rule. The case had been decided without violating the statute “he who shall willfully take the life of another is a murderer”. However, literal rule cannot always be applied. Justice Foster illustrates cases such as Commonwealth v.Staymore and Fehler v. Neegas to support his argument that applying golden rule often gives a more just result. He raises a point that the above-mentioned statute has never been applied literally by giving an example of the exception of self-defense. I agree with him that statutes must be read between the lines to close the loopholes and give a fair judgment.
Also, there was no malicious intention in committing the murder and it was solely for the purpose of survival. An important point to be noticed is the
lack of intention to murder and the role of survival.
According to Aristotle and Plato’s discourse on law, I also think that the end can justify the means and so to save many people, one man was killed. Therefore, I agree with Justice Foster that the four men are innocent of the crime of murdering Roger Whetmore.