Spelunking through Contemporary Legal Philosophy: Notes on the Boringness of Jurisprudence.

by Peter Suber, The Case of the Speluncean Explorers: Nine New Opinions, Routledge, London, 1998, vii-xii pp, 107 pp, index 108-1 11 pp. Price: soft cover $35.00.

Bronwyn Statham BA (Hons) (Qld), MA (with Distinction) (Universitk de Paris).

Margaret Davies' introduction to modern legal theory, Asking the Law Question, begins with a meditation on the boringness of jurisprudence. When what we mean by jurisprudence is 'the philosophical questions which are asked about legal systems - either real or ideal ones,' this, she suggests, is in itself 'an inexpressibly boring way to think about the subject." But being boring, however, may not be such a bad thing. In one sense of the term, as the rather clever and witty opening to a paper by Charles Yablon shows, genuine boringness might be aspirational:

The papers that have preceded me have all been extremely original and interesting. I must provide the missing Derridean supplement. I must be boring. This is not difficult for me. I am a lawyer. I know many boring things. Many very, very boring things. I must be boring. I must bore. But in another sense, to bore is to dig, to probe under the surface, to uncover that which has been hidden, to view that which has not previously been seen. In that sense, the papers that have preceded me have been very boring indeed, and I may truthfully say that I hope I may be only half as boring as those who have preceded me.*

In this sense, Peter Suber's The Case of the Speluncean Explorers: Nine New Opinions, a reconsideration of Lon Fuller's fictitious case,3 deals with some very boring aspects of contemporary legal theory indeed. Not the least of which are the spelunkers themselves. In Fuller's hypothetical scenario, set in Newgarth in 4300, five members of the Spluncean Society are trapped when a landslide blocks the entrance to the cave which they are exploring. When they fail to return as expected, a rescue operation is commenced and, after 32 days, is eventually successful. In the meantime, however, having been informed from the surface (by means of portable wireless) of the slow progress of the rescue operation and of the very near certainty that they will starve before the rescue is effected, an agreement is made amongst the party to kill and eat one of their number. After some discussion as to the method in which the 'victim' should be selected, a kind of lottery by the use of a pair of dice is agreed upon. Before the dice are cast, Roger Whetmore (who had originally proposed the cannibalistic plan) withdraws from the agreement. Arguing there has been a breach of faith on his part, the others cast the dice for him. The throw goes against him and he is killed and eaten by his companions. When the four surviving members of the party are eventually rescued, they are charged with the murder of Roger Whetmore under a statute providing that 'Whoever shall wilfully take the life of another shall be punished by death. Upon being convicted, they are sentenced to be hanged.' Fuller invented five Supreme Court justices to hear the appeal from this conviction. Two of the justices upheld the conviction; two considered that the conviction and sentence should be

1 Davies M, Askitzg the Law Question, The Law Book Company Ltd, Sydney, 1994 at 1 . 2 Cited in Davies M, n 1 at 2. Yablon's boring topic is a blank United States District Court summons form, surely

a 'boring lawyer's thing' if ever there were one: Yablon C 'Forms' (1990) 1 1 Cardozo Law Review 1349 at 1349.

3 First published in (1949) 62(4) Hurvurcl Luw Review 616, Fuller's article is reproduced in full in the first part of Suber's book.

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set aside and the fifth abstained from judgement. The Court being thus evenly divided, the conviction was affirmed and the defendants were hanged.

Fuller invented the case, as he put it, 'for the sole purpose of bringing into a common focus' certain of the 'divergent philosophies of law and government'4 that were prominent in his day. Similarly inspired, Suber's new opinions are an attempt to produce an updated representation of the contemporary landscape of legal philosophy." Notwithstanding that it would be an admirably boring exercise, it is beyond the scope of this review to undertake a systematic and detailed analysis of the reasoning of each of Suber's nine judgements. I would, however, like to point to the key jurisprudential landmarks that Suber takes as his points of departure. In addition to certain well-established commonplaces of legal philosophy - utilitarianism, positivism, and natural law theory - Suber's opinions give particular attention to (i) the debate over the nature of (legal) interpretation, (ii) cornrnunitarianism, (iii) feminist jurisprudence(s), (iv) postmodernism and (v) economic analysis. I do not mean to suggest by this list an exercise in comprehensively cataloguing every conceivable theoretical referen~e.~ My objective in outlining Suber's nine opinions is a modest one: it is an attempt to map them (but only loosely and provisionally) in relation to these landmarks, to give a sense of the lie of the land, as it were.

Justice Tally concludes that this was a case of 'preventive killing,' justifiable on the basis of a utilitarian calculation that it is preferable that 'one should die, enabling five to survive, than that all six should die.'7 Such an outcome, horrible though it may be to contemplate, is a bargain which ultimately reflects the value of human life. Once this principle is accepted, it only remains to ensure that the method of selection of spreads the risk sacrifice equally. This is not achieved by waiting for the weakest member to die - this spreads the risk unequally by depriving the weakest member of the possibility that the death of one of the others would save him, the weakest, from starvation. Rather, what is called for is precisely the kind of random lottery that the spelunkers chose.8 For this reason, Whetmore's revocation of his consent was irrelevant: if he was allowed to withdraw from the plan it increased the risk to each of the remaining participants of being selected, and consequently increased the incentive for others to withdraw, eventually making the lottery impossible. In this situation of inaction, the weakest member is necessarily and unjustly targeted? For these reasons, the conviction should be overturned.

Rejecting as 'barbaric' the 'bloodless arithmetic'1° of this bargain, Justice Trumpet argues that the sanctity of human life is a fundamental moral principle which admits of no exceptions. Even when faced with the necessity of killing in order to prevent our own deaths, the requirements of justice and natural law mean 'that we should die before we

4 Suber P, The Cuse of the Spelunreun Explorers: Nine New Opinions, Routledge, London, 1998 at 32. 5 Suber's is not the first such attempt. Anthony D'Amato produced three opinions reflecting the 'rights thesis'

developed by Ronald Dworkin and others: 'The Speluncean Explorers - Further Proceedings' (1980) 32 Stunford Law Review 467. More recently, seven opinions reflecting different legal and political perspectives, one each by Naomi Cahn, John Calmore, Mary Coombs, Dwight Greene, Geoffrey Miller, Jeremy Paul and Laura Stein were published in 1993: 61 George Washington Law Review 1754. In Suber's scenario, a previously unknown sixth member of the spelunking party is discovered living alone in the wilderness and is charged, like the other survivors of the expedition, with the murder of Roger Whetmore. Like them, he is convicted and sentenced to death. And like its predecessor, Suber's Court is evenly divided, its hopes that contemporary legal theory might have equipped it better to provide an authoritative resolution than earlier schools of thought clearly having been misplaced: Suber P, n 4 at 36.

6 Nor do I mean to suggest that there is a one to one correspondence between particular judgements and particular jurisprudential standpoints - indeed rather the contrary is the case. In my account of them I have been, necessarily, somewhat selective.

7 Note 4 at 58. 8 Note 4 at 59-60. 9 Note 4 at 61. 10 Note 4 at 76.

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kill.'" This is the very principle, moreover, embodied in the human law of the Newgarth statute which makes no provision for self-defence or necessity. It should not be interpreted otherwise. The conviction is therefore upheld, but as the statute prescribing a mandatory death penalty should be nullified for the same reason, the defendant should be re-sentenced.

Justice Burnharn, by contrast, begins from the positivist assumption of the separation of law and morals: whatever one's feelings of sympathy for the defendant, whatever one's personal view of morality these factors are legally irrelevant.12 Whatever judges may choose to think or do in their private capacity, as judges they are required to apply the law and as the defence of necessity cannot be made out on the facts, the conviction must be upheld. Moreover, in a pluralistic society - that is, in a society defined by deep disagreements on moral questions, but also by a consensus that no one moral view should be privileged for the purposes of law and government - the law must not be put aside so as to countenance decision making on the basis of (any one conception of) morality or justice. From this communitarian perspective, provided the law is genuinely pluralistic, provided that all moral views are heard in the law-making process, then it must be upheld: this is what justice in a pluralistic society means.l%owing what is required in order to uphold the law is a matter of interpretation, and the proper approach is to look to the plain meaning of the law and to 'resolve difficulties in light of historical practices at the time the statute was adopted, including the intent of the authors if that is clearly known.'" This is the only way to ensure judicial constraint.

Counterpoised against this historical objectivist approach, Justice Springham's opinion recalls Ronald Dworkin' s understanding of law as an activity of principled interpretation . This is a hard case. This fact, however, does not authorise an 'appeal to unfettered judicial discretion, "self-evident justice" of "the spirit of the law'' beyond the letter.'15 Rather, it requires a careful consideration of the collective history of interpretations of the key concept involved in this case - wilfulness. As the precedents are (temporarily) unavailable to the Court, 'adjudication returns to its roots in moral and political phil~sophy."~ This is not a matter of (impossibly) trying to retrieve 'what our historical legislators actually had in their minds'17 nor is it a matter of trying (again impossibly) to determine the plain meaning of the term 'wilful' as even the plainest of plain meanings necessarily requires interpretation. It does mean that within his or her individual framework of moral and political philosophy, a judge must try to come to an understanding of the fundamental legal principle embodied in the concept: wilfulness involves an affirmation that only intentional criminal conduct should be punished. As the spelunkers killed from necessity, the element of wilfulness was absent and the conviction should therefore be overt~rned.'~ Even if this were not accepted, the same process of reflection would reveal within the law a fundamental principle of fairness which is offended by a law that mandatorily imposes one penalty and one penalty only, regardless of mitigating circumstances. That part of the law which imposes a mandatory death sentence should therefore be nullified and the defendant should be re-sentenced.

By contrast, Justice Bond rather prefers the view that it is precisely because this is a hard case that the exercise of judicial discretion and, consequently, resort to a 'standard

1 I Note 4 at 75. 12 Note 4 at 37. 13 Note 4 at 43. 14 Note 4 at 42. 15 Note 4 at 47. 16 Note 4 at 48. 17 Note 4 at 48. 18 Note 4 at 48-9.

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external to the law'19 is necessary. Evincing a postmodemist and deconstructivist pre- occupation with questions of language and signification and their relationship to justice, Justice Bond points out that as meaning is never stable - as the settled 'core' meaning of words is always constituted by the open texture of their 'periphery' - the language of the statute cannot be decisive. Moreover, it is in the nature of legal rules themselves that they are unable to 'capture the complexity of life.'20 There will inevitably be 'scenarios of life . . . that fall within the open texture'21 of the periphery: the meaning of wilfulness in this factual circumstance is precisely such a scenario. For this reason, an exercise of judicial discretion is unavoidable. One need not take refuge in a search for plain meaning or authorial intention (as Justice Burnham does) or in an appeal to a web of principle immanent in the law (as Justice Springham does) in order to constrain judicial discretion. For, not only is discretion unavoidable, it is also desirable. It is the proper judicial function:

Discretion, and discretion alone, gives us a chance to find where justice lies in hard cases where (again, by definition) the law is vague, silent, or inconsistent. If a hard case is one that the legislature did not foresee or decide by its legislative language, then the hardness of the case means that judges will examine for thefirst time the issues the case raises, if anybody s to examine them. Discretion allows us to face squarely the features that make a case difficult and to craft a resolution that fits those unique and difficult facts.'22

Justice in this particular case also requires an appreciation that silence is equally a part of language. Silence does signify and justice requires that silence be heard. When faced with the certainty of starvation unless they acted on their cannibalistic plan, the spelunkers attempted to seek advice from a judge or official of government and from a religious adviser as to whether they should proceed with their plan. No-one able to act in such a capacity was found who would answer their inquiry. Thereafter, no further communications with the surface were made. The key question for Justice Bond, speaking in the manner of social contract theorists, is whether that silence was as a consequence of equipment failure (as was assumed at the time) or whether, on the contrary, it expressed an explicit withdrawal from the social contract on which Newgarthian society is founded and the establishment of a new covenant between the group based on the lottery plan. As the proper interpretation to be given to their silence turns on an assessment of the state of the equipment, Justice Bond's former involvement with litigation concerning a patent for a voltage meter used to test and monitor batteries of the kind used by the spelunkers requires him to recuse himself.

Justice Hellen, approaching the issues from a feminist perspective, argues that a consideration of rape and the 'battered woman's defence' is useful for elucidating the meaning of wilfulness, intentionality and necessity in this case. Justice Springham understood wilfulness as pointing to the intentionality of criminal conduct: it is only when and because criminal conduct is intended that it is punishable. The difficulty that this presents for the spelunkers is that their killing of their companion was very clearly intended: they sought advice on the plan from those at the surface, they discussed the mathematical problems of the lottery, and they agreed amongst themselves to proceed. But, when a woman with the rapist's knife blade to her throat submits to sexual intercourse, when she does so under the compulsion of an imperative to submit or die, this does not make her a willing participant. That she might submit to the rapist 'knowingly and deli be rat el^,'^^ rather than acting out of panic or confusion, that she might intentionally prefer life to death, does not mean that she does so willingly: '[rjape proves that we can

19 Note 4 at 100. 20 Note 4 at 100. 21 Note 4 at 100. 22 Note 4 at 102. 23 Note 4 at 64.

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intend an act (submission to a rapist) against our will (without wilf~lness). '~~ By a similar process of analogy, the recent extension of self-defence to include a pre-emptive killing where the aggressor's past history of physical abusiveness 'renders future life-threatening abuse highly probable'25 - the so-called battered woman's syndrome - is useful for understanding whether the spelunkers are properly to be considered to have acted under the compulsion of necessity. Several justices argued that this could not be considered a case of self-defence because Whetmore was not an aggressor. Nor, when considering the defence of necessity, was it entirely clear that at the time the killing took place the killing it was necessary in the sense that there were no alternatives: Whetmore himself had decided to withdraw and wait another week before going on with the plan. Justice Hellen's proposition, however, is that just as the requirement that 'the self-defender face "imminent" death or serious bodily injury'26 has been waived for battered women, then it was not necessary that the spelunkers wait until the very last moment before death before acting on their plan. Nor is it relevant that Whetmore was not an aggressor - it was the extremity of the circumstances, not Whetmore's conduct, that gave rise to the necessity to kill. Given that necessity, the victim's innocence is not material. For these reasons, the defendant should be acquitted.

Justice Reckon's opinion interprets the issues presented by reference to the demands of efficiency in the production and allocation of resources. Crime is expensive - it causes damage to property, it requires expenditure in prevention and detection measures, it generates court and prison costs and so on. Reducing crime would therefore be 'as large a contribution to social wealth and happiness as making a significant reduction in disease and war.'27 Coupling this economic analysis with a Benthamite utilitarianism, it is clear to Justice Reckon that a criminal law without volitional defences would be more responsive to this imperative of efficiency than one retaining such defences. Firstly, it would reduce the costs of administering the criminal law by eliminating the need for lengthy trials. Secondly, it would deter crime more effectively. By making punishment more widely applicable and more certain, the natural advantage that a criminal tinds in exploiting the law-abiding citizen is off-set to the point where the cost or crime surpasses its benefits. In Justice Reckon's analysis, 'only then can we expect a rational actor to choose cooperation [i.e. law-abidingness]. Only punishment can make rational actors in this situation obey the law.'28 As a conclusion that the defendant acted out of necessity is still available, the Court having refused to see the merit of such a proposal to eliminate such volitional defences, then on principle (i.e. on this principle of efficiency) it must be concluded that the defendant did not act out of necessity and the conviction must be upheld.

This conclusion clearly raises issues about the nature of adjudication and of legal reasoning. Both Justices Frank and Goad are concerned with a consideration of these issues. Justice Goad, in response to Justice Hellen's use of the rape analogy, begins from the proposition that if that analogy shows anything, then surely it is that the defendant's conviction should be upheld: if no means no for a rape victim then the same must be said of Roger Whetmore. He was clear and explicit in withdrawing his consent to the plan and his companions were not entitled to act on the basis of their belief as to any inferred or tacit consent to any part of the plan. To argue the analogy any other way is to treat Whetmore as a rapist. They did not act in self-defence. Further, they must take responsibility for the situation in which they found themselves and this precludes then from a defence of necessity. This is not to suggest that one has no sympathy for the

24 Note 4 at 64. 25 Note 4 at 65. 26 Note 4 at 65. 27 Note 4 at 93. 28 Note 4 at 96.

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spelunkers, or even that such feelings are irrelevant. Indeed, rather to the contrary, Justice Goad argues that feelings of sympathy do not lie beyond legal reasoning. As feminist, postmodernist and CLS theorists have pointed out, we all reason from within a context constituted by our backgrounds and experiences, by the communities that have shaped our thinking, by the history and interests which have shaped our communities and so on. All knowledge, including knowledge about the law, is inevitably embedded within these contexts. Law does not have 'an immaculate conception.'" There is no 'Legal Reason . . . beyond faction, beyond ideology, beyond feeling, beyond nature and history.'" To pretend otherwise is not to be relieved from the situatedness of knowledge and the inevitable partiality of judgement. It is simply to assert the primacy of one particular context, to assert as universal the legal reasoning that emerges from within, and that articulates the constitutive interests of, one particular perspective.

Justice Frank's opinion is concerned very precisely with what it is to speak as a situated individual and with what that reveals about the nature of adjudication: he would, he imagines, have joined the lottery, he would have helped to kill the loser and he would have eaten his share. He will not convict the defendant because he cannot condemn a man for doing what he himself would have done. This exercise of imagination is 'an essential part of the ethical life, and underlies such virtues as kindness, friendship, sympathy, compassion, toleration, and even-handedne~s.'~' Moreover, it is properly part of a judge's task and should not be concealed 'in legal garb.'32

Suber, I suspect, might suggest that by outlining these judgements as I have just done, by mapping them out (however loosely and contingently) in relation to a (somewhat arbitrary and certainly less than exhaustive) set of jurisprudential landmarks, by engaging in what he might very well describe as an exercise of 'position-labelling and allusion- hunting,' I had rather missed the point - that is, his point - and departed on a frolic of my own:

The positions I have distilled into judicial opinions are serious and significant attempts to understand the nature of law. . . . I wrote for the reader who is less interested in position-labelling and allusion-hunting than in grappling with these serious and significant arguments, assessing their strengths and weaknesses, and seeing how they matter for a concrete case. For these reasons, I hope that scholars who are already familiar with the positions represented here will not put secondary questions ahead of primary ones, except as a frolic of their own.33

My point, however, is that in its very conception and certainly in its execution, Suber's project invites - indeed, it is structured by - precisely this kind of position-labelling and allusion-hunting approach: although no-where are they designated as such, Justice Tally's opinion is, of course, utilitarian in inspiration; Justice Reckon's calculation of the requirements of economic efficiency is, of course, entirely predictable; Justice Bond would be a social contract theorist; Justice Hellen (the parenthetical 'Cixous' is almost palpable) would, of course, approach the matter from a postmodern feminist perspective and so on. And I entirely agree with Suber that this is not interesting. Nor, I would add, is it pedagogically useful.

This brings me to what is the central purpose of Suber's book - to provide a useful and interesting teaching tool for (introductory) courses on legal theory. The frontpiece of Suber's book pronounces it eminently suitable:

Teaching the major positions in jurisprudence painlessly by connecting them to a fascinating and concrete case, this book presupposes no familiarity with law or the philosophy of law. Peter

29 Note 4 at 87. 30 Note 4 at 87. 31 Note 4 at 90. 32 Note 4 at 89. 33 Note 4 at xi.

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Suber's playful and simple style makes this book an invaluable tool for anyone wanting an introduction to contemporary legal thought.

That teaching legal theory might be(come) 'painless,' 'interesting,' or even 'fascinating' is an appealing prospect: (teaching) jurisprudence does have a bad reputation for being boring, by which I mean here painful, not interesting and certainly not fascinating. Suber's book is certainly readable, and at times both ingenious and amusing - indeed, not boring at all - so it would seem to fit the bill. And yet, as to its usefulness in 'teaching the major positions in jurisprudence' I am very much less than persuaded. The difficulty seems to flow from Suber's claim that these new opinions (are a) 'display'" (of) modem legal thought: they 'depict'" the range of contemporary legal philosophy, they are a contemporary 'group portrait of American legal philosophies,'" they 'illustrate'" the major schools of legal philosophy. Portraiture, illustration, depiction, display: as metaphors describing an epistemological stance, these are each, it seems to me, precisely the equivalent of the 'position-labelling and allusion-hunting' - a kind of 'position-taking and allusion-making' as it were - which Suber cautions his reader to eschew. A portrait, a picture, an image: these are all visual metaphors, metaphors about surfaces and appearances. And as such, they suggest to me that Suber's book, engaging though it is, is not boring enough by half.

This is not to suggest that I entirely accept that 'position-labelling' (or 'position-taking' for that matter) is necessarily a bad thing, pedagogically speaking. If it means something like having a sense of the common pre-occupations of a jurisprudential position; if it refers to giving terms like 'positivism,' 'CLS,' 'feminism,' (or whatever) a kind of contingent coherence sufficient to make the category meaningful and analytically useful without losing the diversity, subtlety, and nuance that such terms necessarily comprehend; if it means being able to argue 'in the manner of utilitarianism, or postmodernism, or natural law theories (or whatever) without producing a kind of caricatured ventriloquism; if it refers to an awareness that there is always something (but not always the same thing) at stake in the dialogical encounter of a plurality of theoretical positions; if it means any of these things, then it is very useful indeed.

For Suber, however, 'positioning' seems to mean something rather like 'name-calling': noticeably, his positionings are, literally, called by name. We are entirely in agreement that this is a unhelpful exercise, Where we are not in agreement is that Suber's project, it seems to me, is cast, epistemologically and methodologically, in the mirror image of the very 'name-calling' he derides: specifically, his project is structured by a decidedly instrumental view of legal theory as a kind of mechanical process of application. I take this to be an equally unhelpful exercise. It is an exercise which conceptualises jurisprudence as a series of already fully constituted, coherent, unified theoretical positions which can be 'applied' to any object of analysis, as if the particularity of that object were effectively irrelevant, invisible and theoretically inconsequential. Hence, although lamenting that it is impossible to display all of the major schools of contemporary legal theory, Suber is encouraged by the fact that 'most of the major contemporary movements in jurisprudence can find a foothold in these facts.'" I rather take the view that if the best that one can achieve in the 'application' of any particular jurisprudential position is a 'foothold' then that is to have achieved very little: one might be better engaged spelunking in some other boring cave.

34 Note 4 at cover. 35 Note 4 at ix. 36 Note 4 at x. 37 Note 4 at ix. 38 Note 4 at x.