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Benjamin TH Low

GSI: Kimberly Ruyle Hunter

Philosophy 359 paper 2

18 November 2002

I vote not guilty. This fictional case is a powerful inquiry into the nature of law. It

raises questions about what value-based approach to constitutional law is more valid than

others. How far should the wording of the statute be taken literally? How much leeway

can be given to its interpretation? Natural law theory or legal positivism? Original intent

or purposive interpretation? I shall explain these terms and structure my paper around

these issues. I will also address the nature of the contract made in this case and apply it to

my defense.

My view most closely aligns with that of Justice Foster’s. For example, I agree

that they are indeed in the state of nature, defined by the fact that they are not within the

limits of the physical enforcement of the law. No police can arrest them, no soldier can

kill them. They would die anyway, so it is useless to observe the common law under

these unique circumstances. It is commonsense. They are not within the reach of the arm

of the law. This is like the case of a mutiny that happens on a ship out at sea in

international waters, over which no law has enforcement over, at least during the time it

is out at sea. In this case, the explorers have rationally concluded that if they were to

follow the common law, none of them will survive, so they had to make the law as

pertinent to their circumstances by making a pact. As Justice Foster argues, they had to

create “…a new charter of government appropriate to the situation in which they found


I agree with Justice Foster’s premise that “…all positive law is based on the

possibility of men’s coexistence…” how then is the judge supposed to treat this case if it

happened in a state of nature? I propose that it is irrelevant to judge this case under the

positive law. The case should not be judged at all because the basis under which the law

is valid itself is absent in this case. Consequently, the men should be judged innocent

under the positive law as an equivalent result.

In answering the question whether Justice Foster’s “state of nature” argument has

any role to play in judge-made law, I presume that this means to ask if judges should alter

or create new meaning to the legislature in subservience to some kind of overarching

natural law that purportedly rules all human conduct. This is indeed one of the issues at

the heart of the debate over the nature of jurisprudence and the role of judges, which is

that of using the natural law theory approach as a basis for legal theory.

By definition, the role of the judge should be devoid of any political power. In

Ely’s article, Hamilton’s Federalist 78 defines the role of the judiciary as having “neither

force or will”, being “purseless” and “swordless”, and that “…from the nature of its

functions, will always be the least dangerous to the political rights of the Constitution;

because it will be least in a capacity to annoy or injure them…” So what this means is

that judges cannot create law, prima facie. Indeed this is rightly so.

Lockean analysis states that from the state of nature arises the will of the people,

which forms the legislative through the democratic process of elected officials as

representatives and it is possible to incorporate by consideration of “state of nature”

arguments in forming positive laws. The judge has no role in this process. So the judge

cannot make laws based on “state of nature” arguments because it has already been

presumably done so by the Constitution and is not his proper role.

Natural law theory has an obvious and big flaw in that it is notoriously vague and

unreliable as a consistent basis for formulating principles of just law. Any kind of

arguments can be attributed to natural law theory, resulting in a wide spectrum of

contradicting arguments that all call themselves natural law theory. This is demonstrated

ably in Ely’s article. This contributes further to the shaky uncertainty in justifying judge-

made laws under “state of nature” arguments.

However, there is the fallacy that the judge is making laws in this case by

seemingly contradicting the wording of the statute “Whoever shall willfully take the life

of another shall be punished by death”. He is still within his proper role by interpreting

the law as the law sees fit. What I mean is that of course, the law should allow for some

degree of purposive interpretation. With this in mind, judges must ask themselves what is

the purpose for the law in creating it and interpret the law accordingly to the case at hand.

This leads us to ask: why purposive interpretation?

Purposive interpretation is a morally principled case of judicial activism. It allows

adherence to what one calls “the spirit of the law” rather than its letter. Adhering to the

letter does not necessary make the principle neutral as can be seen whenever a law

becomes a dead letter due to lack of political will of enforcement, apathy to it,

circumstantial pressure or cultural bias.

An example of this is how an unfair law can be made such as the case of the

historical evolution of the law surrounding the rights of Native Americans, or how

Reconstruction era laws designed to protect the equality of blacks were seemingly

followed to when it came to plain meaning but in spirit was not. There was still

widespread animosity in the South that paid lip service to the explicit wording of the law

but achieved their discriminatory goals by other invidious means. Clearly, an amendment

to the legislature needed to address this injustice cannot be possible without appealing to

some kind of purposive intent of the law, because its plain meaning is not enough. Moral

progress is only possible this way, when the judiciary brings out into play the purpose

behind the wording of the statute.

A possible counter argument goes along the line of Bork’s theory of original

intent: “that a judge is to apply the Constitution according to the principles intended by

those who ratified the document.” A supporting argument for this is Bork’s concept of

neutral principles: “… courts must choose principles which they are willing to apply

neutrally…” to all cases independent of “any particular group or political position”, as a

safeguard against political judging. I agree that judges cannot evaluate the law, that is, no

political judging, because it is not their role, but they can interpret it.

Bork’s theory has some problems. First of all, it is false to say that any kind of

viewpoint is truly neutral in any ontological sense. Bork’s justification of original intent

as a constitutional approach via neutral principles is not really neutral at all when one

questions the basis of that neutrality. It is a well-known fact that it is often the norm than

the exception that the political affiliation of chief justice nominated by the president is

aligned with the political ideology of the president’s party. How then is it possible to be

neutral? If the legislature itself is not politically neutral, will the political results of

judicial ruling be neutral? Bork does not deny this but argues that the intent itself is not

political. (Macedo) Is there really a difference?

In addressing Justice Keen’s legal positivist argument, in the wording of the

statute, some level of generality and vagueness is inevitable, which requires some degree

of loose interpretation. It is precisely this freedom that allows judges to interpret the law.

A famous example of this is how a few words in the first Amendment: “…abridging the

freedom of speech…” can invite so much controversy and interpretation. In fact, the

wording itself invites judges to interpret each case in its own light. Is then no other way

but purposive interpretation possible?

Plain meaning or Justice Keen’s legal positive argument weakens when one

considers the fact that the statute cannot enumerate every single possible case for judicial

treatment, like this unique case of the Speluncean explorers. There will always be

precedent cases challenging the relevance of the plain meaning of the statute. For

example, this is notable in the case of legal theory surrounding technological issues. It is

not that our moral understanding fails to keep up with the changes but the law, but the

wording of the statute itself.

Justice Keen’s distinction between purpose and scope can lead to absurdity

because it is still a strict reading of the statute without reference to some large overriding

purpose of some moral end. A proper reading of scope is defining the boundary over

matters which the law has jurisdiction over, for example, the scope of state authority over

an individual’s private sphere and liberties. This has to take into account the weighing of

the importance conflicting purposes, such as state interest over an individual’s. An

example of this is in the area of public education where the purpose of education

overrides the individual liberty of free speech when it conflicts with this purpose.

Original intent and legal positivism are forms of judicial conservatism. Their

justification based on neutral principles “does not by itself tell us anything useful about

the appropriate content of those principles or how the court should derive the values they

embody.” (Ely)

Law can be said to the public expression or understanding of what is right and

wrong and is the enforcement of morality. This is evidenced by a sense of outrage

expressed against the viciousness of any crime by the public. Legal positivism is a form

of moral skepticism that does not impose on the judges the necessity of promoting

morally just outcomes or preventing moral injustice. This does not make sense if the law

represents morality, or at least some notion of it.

This leads us to ask what leads to this kind of moral sensibility. Is it the moral

majority? Is it democratic consensus? Public opinion can be capricious and inaccurate as

any moral indicator, as history has shown. If majority rule were to be established as de

facto law, then minority rights will be trampled upon, which violates the principle of

democracy upon which the Constitution lies.

Therein lies the difficulty in Justice Handy’s championing of the wishes of the

people. In his words, “men are ruled, not by words on paper or by abstract theories, but

by other men.” Judicial ruling catering to public sentiment or to mere practical

efficiencies can actually be undemocratic.

Justice Handy’s legal pragmatism, as well as purposive interpretation, treats the

law as a means to some moral ends, not as an end in itself. Legal positivism does the

opposite. Both the former admittedly do not claim any justification on a basis of neutral

principles which is alright considering the fact that neutrality is an impossible goal

anyway, so it is more agreeable to have a greater flexibility in interpreting constitutional

law rather than a rigidly legalistic way in order for any kind of progress to occur.

However, I do agree with that a law should not be strictly adhered to if it leads to

moral and legal absurdity. Ten men have already died to save the four explorers and to

then condemn the four explorers to death after the rescue does indeed sound absurd at

face value. Laws governing human affairs are sometimes instituted so as to promote

efficiency by following a set of commonly agreed rules. However, this practicality itself

can be undermined in many circumstances if a strict adherence to the rules is followed, as

in the case of bureaucracy, which expends wasteful energy. A strict legalistic reading of

the rules will undermine its purpose in this example. The rules have to evolve in order to

accommodate unforeseen circumstances and to govern unique cases. This will not be

possible without some appeal to its purported intent.

Justice Foster’s self defense argument is a valid one to be applied to this case.

They killed in self defense because it is a situation of “either you or me, and better you

than me” to put it crudely. However, it is more like “better one than many” which is even

more acceptable. As he mentions, accepting this argument “cannot be reconciled with the

words of the statute, but only with its purpose.” In this case, the purpose of the law

precludes killing in self defense as murder. Other purposes of law such as its deterrence

value, as “an orderly outlet for the instinctive human demand for retribution and for the

rehabilitation of the wrongdoer” (Justice Tatting) Even accepting Tatting’s argument that

purposes may be varied and conflicting, none of the purposes he mentions will be

violated by ruling the defendants innocent in this particular case. This interpretation of

self defense argument is also supported in prior case of Commonwealth v. Parry, which

means that this is supported by precedent.

In refuting another unnecessary confusion brought up by Justice Tatting with his

example of the bread stealer, the stealer had other lawful means of obtaining bread. It is

his laziness and neglect that is being punished. The Speluncean explorers had no

alternative means of survival. Their intention is not to kill per se, but to survive. The

killing is not “willful”. Thus, it is even possible to arrive at the same conclusion of not

guilty with a strict reading of the plain meaning of the statute because the “willful”

requirement is not met.

Another concern of Justice Tatting’s is how purposes can be equally elusive,

multifold and controversial, than other means of legal interpretation. However, I argue

that purposes are often broad and more commonly agreed upon and easier to decide than

original intent. Hence, they can provide a sound moral basis for legal interpretation. The

purpose of any law should be clear from the outset as far as possible and an overriding

clause of this purpose should be worded into the Constitution in order to resolve

ambiguity when it comes to constitutional interpretation in open ended provisions or

unique cases such as this one that seemingly contradicts the law on a superficial basis.

Addressing another contention of Justice Tatting’s about the definition of

“willful” as it applies to a definition of the act of murder, he says that “repel(ling) an

aggressive threat to (one’s) own life” is not “willful” because it is a “response to an

impulse deeply ingrained in human nature.” Is not this response an instinct for survival,

one of the means by which is to kill in self protection? This instinct for survival overrides

all other moral concerns and mitigates in favor of the defendants. It is this purpose then

that the law recognizes. A strict legalistic approach will obscure this larger moral forest

for the trees of the words. The definition of “willful” as deliberate is insufficient in this

case because what is deliberate in Justice Tatting’s sense is merely an application of the

capability of rational thought to reach a best solution to the situation.

The resounding claim of “judicial reform” or judicial usurpation of political

functions by the opposition, also mentioned in Justice Keen’s opinion, that this means

allowing the judges to impose their own values on the case, leading to an undemocratic

process of law, is often stated. This is the danger that Chief Justice Truepenny wanted to

avoid by appealing to the executive to vindicate the men because there was apparently

some conflict with his own values “as a private citizen”, even more broadly of some kind

of public moral justice.

As stated in Ely’s article, this apparent threat to democratic principles is often

overrated. Indeed, the court can be a powerful influence in the running of the country,

even somewhat immune to the formal checks laid on it. Legislative challenge to its

constitutional interpretation has historically been fraught with much doubt, laying force

to the notion of an independent judiciary doing best when left alone. The court has also

historically been often conservative on matter of the constitution, thus making

constitution amendment more difficult even where it is needed, as in the deplorable state

of civil rights before the eponymous movement. Ely says that this cry of anti-democratic

judicial activism is ensconced in a language of destruction that is unwarranted because

“… (the Court) understands that if it gets too rambunctious – if it too regularly exercises

what the public will understand are properly political functions – those (formal) checks

will be invoked.” Historically too, American public opinion has been in line with the

course of judicial constitutional review and the public has come to even expect, to some

degree, that the court will intervene on their behalf on some unfair constitutional practice.

The generality of purposive interpretation allows judges to maneuver within this

framework and to avoid gross obvious moral violations by sticking strictly to the

wording. Even if “all moral talk represent only personal value choices and arbitrary

preferences” (Macedo), there can still be some general rules that can govern purposive

interpretation that respects the moral claims of democracy as an overriding moral

concern, because “the defense of democracy itself demands some moral claims.”


Justice Foster espouses the importance of the contract the men had made. From a

social contract perspective, they have mutually consented to a compact in which one of

them has to die. It is a fair contract, ruled by the mathematical law of probability.

Consent is present in this case which validates the contract. Lockean theory holds that the

social contract is sacrosanct once entered, the terms of which applies to everyone and is

irrevocable, the moral authority of which is derived from the consent of the parties

involved. In this case, the nature of the consent is explicit, rather than tacit, which is

fulfills precisely the basis of the validity of the Lockean contract. Whetmore knowingly

entered the contract with the possibility of being killed. He was forewarned and informed

of the consequences. Analogously, the law is fair if it is promulgated. He accepted the

risk and has to have been prepared to take it.

The importance of observing a contract can be found in the following quote:

“Why are we bound to observe our promise? It must here be asserted, that the commerce

and intercourse of mankind, which are of mighty advantage, can have no security where

men pay no regard to their engagements.” (David Hume, “Essay XII: Of the Original


In this paper, I have given the strongest case to purposive interpretation in

examining the views of the various judges. I have defended my case with a leaning

towards Justice Foster’s disposition.