THE CASE OF

THE
SPELUNCEAN
EXPLORERS
PHILOSOPHY 22B
Professor Andreas Teuber

TABLE OF CONTENTS
I. A Reprint of Lon Fuller's 1949 Harvard Law Review Article -- The defendants,
having been indicted for the crime of murder, were convicted and sentenced to be
hanged. . . They bring a petition of error before this Court. The four defendants are
members of the Speluncean Society, an organization of amateurs interested in the
exploration of caves. Early in May of 4299 they, in the company of Roger Whetmore,
then also a member of the Society, penetrated into the interior of a limestone cavern of
the type found in the Central Plateau of this Commonwealth. While they were in a
position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell
in such a manner as to block completely the only known opening to the cave. When the
men discovered their predicament they settled themselves near the obstructed entrance
to wait until a rescue party should remove the detritus that prevented them from leaving
their underground prison. On the failure of Whetmore and the defendants to return to
their homes, the Secretary of the Society was notified by their families. It appears that
the explorers had left indications at the headquarters of the Society concerning the
location of the cave they proposed to visit. A rescue party was promptly dispatched to
the spot.. . . .
II. Commentary and Brief Overview of the Case -- Imagine that you are a Judge
sitting on the bench of the Supreme Court of Newgarth. Never mind, for the moment,
where Newgarth is or how you became a Judge, sitting on the bench of this most
distinguished Court. But here you are in your black attire all set to render a judgment in
one of the most bizarre cases you have ever heard . . .
III. United States v. Holmes -- Now although the case of the speluncean explorers is a
hypothetical case, there have been cases like it, cases that are not in the least bit
hypothetical, but real as real can be. And in a case in 1842 involving the charge of
murder on the high seas, the attorney for the defense argued that if and when citizens are
isolated and/or cut off from the rest of society, the normal, conventional rules cease to
apply. . . .
IV. Queen v. Dudley -- Putting Holmes aside for the moment, there was another (very
real) case in 1884 (Queen v. Dudley) which resembles the Speluncean Case even more
closely, insofar as it too involved cannabalism, albeit cannabalism on the high seas. . . . .

V. Judges Cardozo and Cahn on the Rule of Human Jettison -- Perhaps you are
unhappy with the opinion expressed in Holmes. If so, Benjamin Cardozo, who later
became a Supreme Court Justice, seems to be with you . . . .
VI. The Necessity Defense -- What is the necessity defense exactly and how and under
what circumstances might it work . . . ?
VII. Hans Tiede's Necessity Defense -- How might the necessity defense be made in
practice? Is it really workable? As an aid to answering this question, consider the
following (actual), very real, case. . . . .
.