Position Paper

SCHOOL SCHOOL OF LAW AND GOVERNANCE UNIVERSITY OF SAN CARLOS 1 st Semeste Semesterr A.Y. 2017-2018

LLB 134N: PHILOSOPHY OF LAW The Case of the Speluncean Explorers

Submitted Submitted by: b y: SGVCSP

CONAG, NOEMI GARRIDO, NURISSA NURISSA PEREZ, KIMBERLY SALVADOR, PINKY PINKY SUAREZ, CHRISTIAN ROYCE VALENZUELA, EDMUND

I.

Issues Issues Presented

1. Doe Does the Courts rts of Newgart arth have ave juris risdic diction ion over these men an and d will their law on murder apply? 2. Are Are the def defendan dants guil guiltty of the crime rime des despite ite act acting ing as res response to necessity in preserving their own lives? 3. Was the takin aking g of lif life of Whetmore by his colle lleagu agues don done wilf ilfully lly d espi te the ab sence of evil intent on their pa rt and the pr essing circumstances of their case? 4. Is the sentence of deat death h penalt alty giv given to the def defendan dants just even if it prohibited prohibi ted their right ri ght to due process? process? 5. Should the pub lic opinion b e given wei ght b y the court and consider that a cquitting the defendant will help ma intain the political auth a uthority ority of the government? II.

Sta Stateme ement of Facts

Five Five membe members rs of the Spel Spelu unce ncean Soc Societ iety, an organi rganizat zatio ion n int interes erestted in the explora lorattion ion of cave aves toget gether with ith Ro Roge gerr Whetmore who is als also a memb membeer of the Societ iety penetrat rated int into the int interio rior of a lime limesstone cave avern loc locate ated in Central ral Plat lateau early arly in May May of 42 4299 99.. Duri Durin ng the explora lorattion ion, a lands lan dsli lide de occurred rred wh whic ich h covere vered d the opening ning of the cave ave an and d res resulte lted to them b eing confined insi de the cave with no mea ns of going out. Thereafter thei r fami lies notified the secretary of the Society on their failure to return home and a rescue party was dispatched. The The treas reasu ury of the societ iety exhaus austed their finan inanccial ial mean meanss for the rescue of the explorer rers an and d a sum of Eight Hundred Thousan and d Frelars ars whic wh ich h inc include luded d those from rom outside ide part arties ies were expended ded to res rescue the exp explore lorers rs.. A temp tempo orary camp of wo workm rkmen en engin enginee eers rs,, geo geologis logistts an and d oth ther er experts wa s estab lished. A numb er of la nd slid es happened which resulted to the d ifficulty for the success of the rescue. In one of the landslides, ten workmen died while clearing the obstructions. On the 20th day day of their heir im imp pris risonment ment,, the trap rapped men men ma made de radio radio cont ntac actt wi witth the res rescue team throu rough a portabl rtablee wi wire rele lesss ma macchine hine wh whic ich h was capab apable le of sendin ding an and d rec receivin iving g message ages. The They were told by the engineers that it would take at least more days ays 10 day days to rescue them prov rovide ided that no furth rther lan landsli dslide dess were to occur. The physic ysicia ian ns als also told the trapp rapped men men tha hatt their heir cha hanc ncees of surv surviv ivin ing g wi wittho hou ut food for the next ten days is deemed impossible. On their second communica tion, Robert Whetmor e asked the physicia ician ns whether they would surviv rvivee 10 more days days if they kill killeed an and d

ate one of their members. Provided that there were no adequate source of food and water. The physician’s chairman reluctantly answered that they would. Roger Whetmore proposed whether it would be advisable to cast lots to determine on who will be eaten in order for the survival of the other four. The experts outside were told of this proposal but none of them answered. No further messages were received thereafter from the cave and it was discovered after their rescue that the other explorers were reluctant to implement the proposal at first, but after hearing what the expert had said, agreed out of desperation. A lottery was later held by rolling of a dice but Robert Whetmore, who proposed the idea of the sacrifice and the casting of lots, wanted to desist at the last minute. He was charged with a breach of faith and the casting of dice proceeded. When it was Robert Whetmore’s turn, the dice were cast by one of the defendants for him. He was asked if he had any objections on the fairness of the throw but he stated none and the throw unfortunately went against him. As agreed, he was killed and eaten for the survival of the other four. After the men were rescued on the 32 nd day, they were put in a hospital to undergo a course of treatment for the malnutrition and shock they suffered. They were then indicted for the murder of Roger Whetmore under the law of the Commonwealth of Newgarth that states that “Whoever shall willfully take the life of another shall be punished by death” This permits no discretion to the penalty to be imposed. The defendants were imposed a sentence of death by hanging as it was the only course open to them under the law, regardless of how extraordinary 1 the case may be. III.

Summary of Arguments

The defendants are responsible for the death of the victim; however, they must be acquitted from the penalty of death. The circumstances that surround the commission of the homicide portray the rule of necessity of human beings to survive and in the case at hand; the defendants have shown that they are trying to satisfy such necessity. The defendants show that the necessity exists upon the fear of dying. Even the victim was aware of such necessity but refuses to participate in the satisfaction of the necessity when his proposal was about to be followed when he announced the only possible solution for their dilemma and how he thought it would be pursued. Moreover, this necessity would occur to any person if they were to be subject to such situation for it is a necessity embedded in the nature of any being in the state of nature or animal for 1

 C.J. Truepenny, The Case of the Speluncean Explorers by Lon Fuller

that matter. Such act cannot simply be used to condemn the defendants for it was not their decision to be in such a situation. In terms of necessity of commission where exceptional circumstances cloud the rationality of any person to have an intelligent decision, such as the case at hand, it must not be held against the perpetrator for it was a response of necessity similar to instinct of self-preservation. When you enact laws or ordinances within a specified territory it follows that it does not take effect outside the said area unless specified therein. When you say that no food is allowed inside the library it does not include the hallways going to the library. This analogy alone can mollify the law applicable to these ill-fated men and can render it unfeasible. These men were trapped in a cave miles away from the civilized society of Newgarth therefore the law on murder and its punishment is not applicable. Saying, that if this incident had occurred in 2 the next town or another country do we apply our rules on such case? And also saying that if the law applied is not the suitable law to deal with it, should we still insist and force to apply it? This is the situation at hand. The defendants also deserve acquittal because they did not act wilfully if the law will be applied. Their acts do not fall under those prohibited by law which is wilful killing. They were only compelled by the necessity to survive when they executed the action. The defendants’ action of taking the life of their member is morally excusable, as they deemed it necessary in order that more of them would live; hence, surpassing the restrictions of the plain meaning of the law, the defendants should be acquitted from the crime of murder.  Justice, one of the main functions of law, should be taken into consideration on the acquittal of the defendants. Judgement rendered without judicial mitigation or merciful justice violates the due process of law granted upon every individual. Defendants should be given the chance to show the courts that their actions are justified as it was done out of necessity and with consideration to the extraordinary plight they encountered.

The legitimacy of government rests upon how well it serves the people. It is clearly shown in our history that many governments have been wrecked and people were in misery due to the lack of accord of the 2

 J. Foster Case of Speluncean Explorers By Lon Fuller – p. 4

rule of harmony between the ruler and the ruled. It is paramount to the government to respect the public’s wishes to maintain peace and order. It is undisputed that by a poll, the majority populace wanted the defendants to be let off with a token punishment. The people have already expressed their sentiments to four people who have experienced tragedy and humiliation. The decision that would best satisfy the public and not make the court look foolish was to vote to acquit. IV.

Discussion of Arguments

Our position calls for the acquittal of the defendants for the crime of murder, on the grounds of the following: First, the justification of necessity for the preservation of lives

The arguments can be summarized into two main points, first is that the circumstances that surround the case creates a necessity for the crime for self-preservation where the satisfaction of such necessity is a natural instinct that would arise from any human being on exceptional cases where such necessity clouds its rationality or reason to decide intelligently prompting to the commission of the crime and second is that the necessity is a natural instinct, and as such, it is hypocritical or unfair to impose on those who experience such exceptional cases the penalty of the law while those who has not experienced it cannot comprehend the feeling of necessity of such circumstance. In the case at hand, a lot of exceptional circumstance surround the case; one is that the explorers have found themselves stranded in a cave with no source of food can be found, another is that the duration of their stay in such place, also the call of the medical experts of the low chances 3 of surviving without food and the fear of mortality, etc. These circumstances cannot be experienced in a day to day basis and must be taken into account in judging the accused. In these situations, it would not be unthinkable that anyone in the group would have ideas to maintain their survival even at the expense of the life of one of them. Being a part of the privileged class where they simply explore caves, such ideas would not come into their mind except when put under such situation or at least even in such situation they would not give any consideration to such ideas. This can be seen in the defendant’s initial refusal to the proposal of The Case of the Speluncean Explorers (The Supreme Court of Newgarth 4300) - p. 1 3

the victim of the sacrifice that one of them would make for the others. The defendants still showed rationality even after such proposal. But, despite lasting for twenty days without anything, the defendants, or any person in the same situation for such matter, could only have accumulated stress and could even have lost the will to survive unconsciously and any contact from the outside world can give any person, in such situation, hope and will to live on and would only focus on the idea of surviving, thus, prompting the creation of the necessity to live at any acceptable costs but the sacrifice of the life of their group member is not an acceptable cost initially. The defendants, finally considering the proposal of the victim, shows that they have contemplated on the risks and the benefits of such proposal and despite having a high rate of 20% of probability, they show their desire to live on and if was picked by chance, they show their desire 4 to support the others through his/her ultimate sacrifice. They all accepted the chance of them living and the chance of them dying equally and so, their decision to push on through with the plan not of plain will but of necessity cannot be attributed to them. With the victim’s desistance to continue with his proposal and wanted to wait for a week before its commencement, the others have felt a breach of faith which can only further cloud their judgement in satisfying their initial necessity. The defendants simply proceeded with the agreed plan with consideration to the victim by asking him of his 5 opinion on the fairness of the dice thrown for him. This desistance is relevant only to the extent of it further clouding the rationality of the others but not to the idea that he was against the plan for first, he proposed of the plan, second, he only wanted to delay the commission of the plan for another week where he still consented to it but only for a later date, and lastly, he was asked of his opinion for the fairness of the throw and could have denied to be held by such chance. The necessity prompted every one of them to proceed with the plan regardless of who were to be sacrificed. Necessity being the impetus of the commission of the crime can be considered as a compelling force that clouded their reason or vitiated their decision or intent. The victim, through such necessity, has come up with As can be deduced from the given facts of the Case of the Speluncean Explorers (The Supreme Court of Newgarth 4300) The Case of the Speluncean Explorers (The Supreme Court of Newgarth 4300) Page 2 4

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such idea which became the basis of the crime. The defendants and the victim, being influenced with the circumstances and the natural desire or necessity to live, basically had made their decision without proper reason or rationality and thus, must be acquitted. As argued above, the act committed is considered without proper reason or rationality. Thus, the act was committed on instinct or response to such stimulus which is the necessity to live and can be considered as an act of self-defence or self-preservation. With the given situation, as an act of self-defence, the defendants must then be acquitted. In the words of one of the judges in the hypothetical case, Judge Foster: The true reconciliation of the excuse of self-defence with the statute making it a crime to kill another is to be found in the following line of reasoning. One of the principal objects underlying any criminal legislation is that of deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defence is murder such a rule could not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say. Looking therefore to the broad purposes of criminal legislation, we may safely declare that this statute was not intended to apply to cases of self-defence. (The Case of the Speluncean Explorers, 4300) The act committed by the defendants, thus, is not one of those prohibited or punished by the law but of one given exception to it provided that it fits the requisite. As stated in the first argument, the necessity to live or desire to live is a natural instinct or reflex that one would give as a response to a stimulus. The act committed by the defendants and other persons would be the same provided that they were to be subjected to the same circumstances. It is then hypocritical to any person to impose onto the few who have experienced the circumstance that prompted them to commit the crime. The pressure or perhaps the need or necessity that a person in danger of death would feel can never be easily comprehended without actually experiencing it. Thus, for anyone to impose onto them such penalty must first know if such exceptional circumstance is not enough to acquit them of the crime and the necessity or the pressure cannot be created or simulated easily because of the awareness of the person to be subjected.

Second, Jurisdiction over the Survivors

We do not believe that these survivors are murderers in fact, for their actions represents “The law of nature” and not the commonwealth 6 law in Newgarth . In history, before written laws people coexist harmoniously or barbarically, either of those - communities soon developed written laws in order to manage ororganize important matters that needs regulation. Laws existed for the reasons of peace, justice or order and the like, and these laws created in such assumption that the subjects exist in a common place where there is a need for regulation. The Speluncean explorers were located beyond the said common place where the law applied to them was enacted thus their action for survival is meaningless to the law of the land. Even the forefathers of the land before they established the law applied to these Explorers had no rules, had one of the forefathers killed another before establishing a law that prohibits such would that law be applicable? No it will not apply unless stated but in this case it did not. These unfortunate men existed in a moment just like before the written laws existed because of their alienating circumstance. Thus, making them resort to behave like the ways people who existed before written laws were established. Such alienating circumstance where there is no other way of surviving starvation but to eat, in this circumstance human flesh a cannibalism law could be applied. In this event they would not either think of eating human flesh not unless Whetmore 7 himself suggested it. 8

Cessante ratione legis, cessat et ipsa lex this means that the law applicable to the situation of these men does not apply to them because the law itself is inapplicable. The Courts of Newgarth cannot force a law to apply in situation such law is unsuitable. Having these men trapped inside the cave without assurance of whether they will survive or not need to work together and devise of a way to last until rescue arrives.

 J. Foster Case of Speluncean Explorers By Lon Fuller – p.4 7C.J Truepenny The Case of Spelucnean Explorers By Lon Fuller – p.2 8 J. Foster Case of Speluncean Explorers By Lon Fuller – p.4 6

Since the purpose of law is to produce the greatest number of fruits from 9 cooperation. Being trapped away from civilization wherein the law on murder takes effect does not bind them, for inside the cave by its own factual circumstances it is not any more conducive or appropriate to continually follow such law for it will produce lesser fruits by making these men dying of starvation die, in fact none of them might have survive until the rescue team will drill through the rocks covering the entrance to the cave if they did not ate the flesh of Whetmore. Remember that the rescue team stated that it will be 10 days before they can drill through the rocks and 10 that there is a little chance of surviving stated by the Physician present. Whetmore spoke to them on the 20 th yet they were rescued on the 32 nd therefore of 2 days in excess the survivors could not last and all of them might have died instead. Therefore the law in Newgarth cannot apply for they are outside their civilized society and that circumstances of murders happening in such place could be highly different from where the Speluncean Explorers is located, in addition situations could be very well different. Cooperation by these men by establishing their own congress might save them from dying. Whetmore by fact, proposed an idea which serves as a catalyst for the idea on how to last until the day. Wherefore these men established their own congress and devised a way in order to survive and produce the greater fruits, morally and legally this is the only way presented into them as all of them are already exhausted, shattered and drained because of their situation. Even though Whetmore desisted and was still killed, such killing is subject to the law of Newgarth since it happened again in a remote place outside Newgarths jurisdiction. Since the law is created to shelter the greatest amount of gains so their action did produced such greatest amount of gains and therefore it is not against the basic purpose of why the law was created. Jurisdiction of Newgarth in this case is questionable, as whatever is not forbidden it is 11 permitted , the Newgarth law on murder basically states “"Whoever

 J. West The Speluncean Explorers Revisited Kozinski et. Al., Vol. 112:1834:1999 – p.1893 10  C.J Truepenny The Case of Spelucnean Explorers By Lon Fuller – p.2 11  J. De Bunker The Speluncean Explorers Revisited Kozinski et. Al., Vol. 112:1834:1999 – p. 1905 from Johann Christoph Friedrich von Schiller, Wallenstein's Camp, Sc. 4 (I798), quoted in Bartlett's Familiar Quotations 365 (John Bartlett & Justin Kaplan eds., i6th ed. I992). 9

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shall willfully take the life of another shall be punished by death.” , however it did not state for what purpose the killing would be done, is it for revenge? For money? Or for glory. Legislators, however in creating the law most probably be thinking of prohibiting senseless killing, however life-saving killing in this situation is a farfetched situation that the law itself rendered inapplicable for it cannot define the complexity of this case. If we look into the purpose of the law on murder in Newgarth, 13 taking a life for a life to be saved is not totally against it, for the law purposely was made to protect life. These legislators could have easily legislated such in their law so that it will be applicable, but they did not. Completely because of laziness, cowardice and thoughtlessness or 14 unwillingness to resolve such moral dilemma . Such for that certain reason Newgarth laws will not be applicable to the present case, thus it follows that they too cannot apply the sanction imposed upon these unfortunate survivors. Necessity as a general defense to crime "seems clearly to have 15 standing as a common law defense.” when there is a necessity then no 16 law can compel a person to do so not to commit the action or actions prerequisite to what such necessity pertains, if your life is threatened by no means you will defend it, if somebody steals your bag and by that threatens your life by no other means you will give up your bag, for your life. Laws has recognized rationalizations for taking actions expressly prohibited by the letter of the law when such actions are "necessary" to 17 prevent a "greater harm." The law in Newgarth at present do not cover such exceptionality or distinctiveness of the situations presented and rationality being incorporated and therefore barring them from applying it to the Surviving Speluncean Explorers. Life is sacred and by general rule it is to be protected and preserved, these ill-fated men dying and suffering from starvation, was  C.J Truepenny The Case of Spelucnean Explorers By Lon Fuller – p.3 13  J. Foster Case of Speluncean Explorers By Lon Fuller – p.4 14  J. De Bunker The Speluncean Explorers Revisited Kozinski et. Al., Vol. 112:1834:1999 – p. 1905 15  J. De Bunker The Speluncean Explorers Revisited Kozinski et. Al., Vol. 112:1834:1999 – p. 1906 from The necessity defense has been "anciently woven into the fabric of our culture." J. Hall, General Principles of Criminal Law 4i6 (2d ed. ig60), cited in Laura J. Schulkind, Note, Applying the Necessity Defense to Civil Disobedience Cases, 64 N.Y.U. L. Rev. 79, 83 n.20 (i989). 16  J. De Bunker The Speluncean Explorers Revisited Kozinski et. Al., Vol. 112:1834:1999 – p. 1906 17  J. De Bunker The Speluncean Explorers Revisited Kozinski et. Al., Vol. 112:1834:1999 – p. 1905 12

presented with an answer, though harsh and barbaric, what then they should do? It’s the only way presented by their associate that can absolutely and surely preserve their lives, whom then took it back by desisting eventually. What is harsher than placing all of your hopes of surviving in that method with enough deliberation and that these survivors even accepted that they themselves might be the victim, to have taken away. Another way of presenting that they will just wait to die in starvation, with anything in thier capability thus in this case these Speluncean Explorers by grandest rule to protect and preserve their lives did an action wherein present law in Newgarth does not apply. Thus, Newgarths courts does not have jurisdiction to such case and if there is then there is not applicable nevertheless. Third, The Speluncean Explorers did not act ‘wilfully’ in killing and eating the flesh of Whetmore.

At the first instance, the Speluncean Explorers can be said to have acted on their will and with freedom when they took the life and ate the flesh of Whetmore. This can be seen from the stages of planning, dice-rolling, and executing of the act. In these stages, it can be inferred that the explorers have the intention of killing with the end of eating the flesh of Whetmore for survival. We, however, disagree with this contention. In considering an act to be wilful, the actor must have acted with freedom and reason. He must have did the act freely without any force, regardless of any amount, influencing his decision or action. In addition, he must have acted with reason, that is, he was properly guided by his conscience and good judgement when he committed the act. 18

According to Black’s Law Dictionary , the term wilful “proceeds from a conscious motion of the will, knowingly deliberate.” From the same source, “an act or omission is wilfully done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done, that is, with bad purpose either to disobey or to disregard the law.” From the definition, a wilful act must be done voluntarily and intentionally with evil intent. Thus, the act of taking the life of Whetmore by the explorers is not wilful. Although there was planning, the act cannot be said to have been done wilfully due to the demands of necessity to survive and, thus, the absence of evil intent on their part. Moreover, they were not able to act according to reason because of hunger and starvation that affected their rationality.

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Black’s Law Dictionary (1991), p. 1599

The defendants were trapped in the cavern where sustenance needed for survival is not available. There was no source of life in such a place and survival is meagre. If time is allowed to decide their fate, surely, death will come their way. However, with the natural impulse of man to preserve and protect himself, they took control of their lives. They acted on the situation in the only way possible, that is, eating other man’s flesh for survival. The necessity for survival, thus, became the force influencing their decision of taking the life of Whetmore. Without said force, the explorers could have not proceeded with the act. Their freedom to reach the decision was restricted by the circumstances on which they found themselves. They have no other choice; other people who may have found themselves in the same situation might have done the same thing. If there were fish in the cave or any other animal that can be a source of food, naturally, any man will choose it over a human body. As majority of the world consume plants and animals aside from humans, being used to aforementioned source of nutrients, man, as much as possible, desists from eating his own kind. In the case of Speluncean Explorers, there was no other alternative but themselves. Although it can be said that the explorers should have eaten themselves. It is noteworthy from the beginning that the defendants acted in such a way to survive. Eating themselves is equivalent to self-destruction which is against their goal of survival. Definitely, if this is the case, they injure themselves thereby increasing the risk of death due to infection and self-destruction. Assuming that they will be rescued when the infection or deterioration is treatable, still, at the time of their act, the day that they will be rescued was still uncertain. That time being uncertain, they put their lives at stake defeating the purpose of survival. They were, thus, constrained by the circumstances of their predicament. It is also argued that the rationality and good judgement of the defendants were affected by hunger and starvation. As such, they acted without their will as they were experiencing these predicaments. To function well, a person must eat three times daily. Otherwise, his system will deteriorate affecting its proper operation including the mental processes involved in making good judgements. It is obvious then that the circumstances of this case are peculiar and one of a kind. As such, it must be treated differently with proper consideration. The treatment that this case deserves must be the same with those that are justified by virtue of the circumstances of the case. The defendants of this case should be acquitted as they were compelled by the circumstances which limited their rationality and freedom to make good choices.

To consider the acts as falling under the wilful killing prohibited by law will make the application of the law absurd. As in the words of  Justice Sunstein, “it is possible to imagine cases that fit the terms of this statute but for which the outcome is nonetheless so peculiar and unjust 19 that it would be absurd to apply those terms literally or mechanically.” It will lead to absurdity if an act is considered wilful only in the absence of accident. It is an undisputed fact that the explorers were already out of food thereby justifying their actions. Circumstances revolving around the case of the defendants constitute as hindrance to their freedom and reason to choose to do an act. Fourth, Taking one life to save more lives is morally excusable to acquit the defendants from the crime of murder

Our stand would be yes; in a case such as this, where one life should be sacrificed in order to save more lives, should be accepted as a ground to acquit the defendants from the crime of murder. We believe that the preservation of more lives is more humane, and thus morally excusable, than to let everyone die of starvation. We are on the same breath as Justice Foster that the defendants should be acquitted from the crime of murder. Indeed, the usual conditions of human existence incline us to think of human life as an 20 absolute value, not be sacrificed under any circumstance. Such conception, however, cannot be absolutely applied all the time to ordinary relations of society. Just like in this case, it is an undisputed fact that the defendants had to kill Whetmore in order to survive. In cases such as this, we should give weight to the situation under which the act was committed as it involves unique and extraordinary situation. 21

Apart from the fact that a lot efforts and money were expended, lives were also lost trying to save them. In the quest of rescuing the trapped explorers, ten workingmen lives were, unfortunately, taken in the process of removing the rocks blocking the opening of the cave. Rescue operations such as this, where extreme effort is required, undoubtedly involves serious danger and risk to the lives of the rescue men executing the action. Should it be right and proper that the ten workingmen die to save the lives of the five trapped explorers; then the four defendants, who killed Whetmore for their survival, should likewise be deemed morally excusable and should not be convicted. As in the words of Justice Foster, “every highway, every tunnel, every building we project involves a risk to human life. Taking these projects in the aggregate, we can calculate with some precision how many  J. Sunstein The Speluncean Explorers Revisited Kozinski et. Al., Vol. 112:1834:1999 – p. 1884 20  Justice Foster, The Case of Speluncean Explorers by Lon Fuller, pp. 5 21  Justice Foster, The Case of Speluncean Explorers by Lon Fuller, pp. 1 19

deaths the construction of them will require…Yet we deliberately and knowingly incur and pay this cost on the assumption that the values 22 obtained for those who survive outweigh the loss.” We cannot dodge the presumption that behind every project, for the benefit of many, lives are risked inevitably. What more in such situations as in the case of the Speluncean explorers where survival is imperative, and the only way is to kill one of their members to supply the need of their body, in order not to die of starvation. Moreover, it would be uneconomical to subject the lives of the defendants into the harsh rule of law, which should be deemed as inapplicable in this case, as such would throw into waste the efforts, the lives of the ten workmen, and the money, which was spent up to the point of exhaustion of the Spelucian Society’s treasury, for their rescue. If such would be the case, then it would’ve been better that rescue operations were not executed; it would have even preserved the lives of the ten rescue men. Though this would be countered by an argument that such  justification is irrelevant since there was no specific law that governs such, then that would be the same as in the situation of these survivorSpelunkans. There must also be a law governing unique and extra-ordinary situations such as this case, and to do such would be unfeasible. Hence, to use the plain meaning of the law would be to restrict the scope of the law as to the facts of the case, notwithstanding the situation that can be considered as an excuse to acquit these defendants, who only wanted to preserve their lives.  Just like some members of the United States Court of Appeals, we also stand that the killing done by defendants against Whetmore was 23 morally excusable , because the defendants deemed it necessary in order that more of them would live, notwithstanding the fact that Whetmore initiated the plan. It is rather right that we uphold the principle, that the sacrifice of one life is only morally right, and excusable, if it is to save many. Fifth, Judicial Mitigation should be given importance on the basis of either the lowering or acquittal of the sentence

“Whatever disagreement there may be as to the scope of the phrase "due process of law" there can be no doubt that it embraces the 24 fundamental conception of a fair trial, with opportunity to be heard”.

 Justice Foster, The Case of Speluncean Explorers by Lon Fuller, pp. 5  Sustein, J. The Case of the Speluncean Explorers: Revisited, Author(s):  Justice Kozinski, Justice Sunstein, Justice West, Justice de Bunker, Justice Eastebrook, Stupidest Housemaid. Source: Harvard Law Review, Vol. 112, No. 8 (Jun.,1999) p.1889 24 Oliver Wendell Holmes, Jr., Frank v. Magnum , 237 U.S. 309, 347 (1915). 22 23

Death penalty should not be imposed to the defendants as it is contrary to their constitutional right of fair trial. Judgement rendered without judicial mitigation or merciful justice violates the due process of law granted upon every individual. Defendants should be given the chance to show the courts that their actions are justified as it was done out of necessity and with consideration to the extraordinary plight they encountered. As already discussed by the preceding arguments it was done out of practical wisdom.  Justice, as one of the main functions of law, should also be taken into consideration on the acquittal of the defendants. Instead of granting a sentence of death it would be better to use the law to serve justice on both ends of the law. The two types of Justice, corrective and distributive, should be used in rendering rehabilitation and answer to the case. Corrective Justice is when the court redresses a wrong committed by a certain party against another while Distributive Justice seeks to give each 25 person his due according to what he or she deserves. It is not the legal challenges of death penalty that should be taken into account but the capacity of death penalty being just or unjust. Death sentence as it is constitutionally illegitimate. As contended by Justice West while referring to the imposition of death penalty, “What’s the point why the government should kill people to prove that killing people is 26 wrong? Even though their action was a criminal homicide, it does not follow 27 that the punishment of death is warranted. The penalty of death that is based on the positive law is not applicable in the case for the facts is not in line with the “state of society” particularly, in this situation, the possibility of the coexistence of men ceased to exist wherein life only became possible by the taking of life which is governed by human laws in 28 addressing and resolving issues and concerns within the society. In the case at bar, the defendants were not in the state of society but rather in the “state of nature”. They were in a very difficult situation wherein they couldn’t handle the consequences and factors brought by the incident.  Aristotle, Wacks, Raymond. Natural Law (in Philosophy of Law: A Very Short Introduction), Oxford University Press: 2006 26 West J. The Case of the Speluncean Explorers: Revisited, Author(s): Justice Kozinski, Justice Sunstein, Justice West, Justice de Bunker, Justice Easterbrook, Stupidest Housemaid Source: Harvard Law Review, Vol. 112, No. 8 (Jun., 1999), pp. 1891-1999, Published by: The Harvard Law Review Association 27 Ibid: 28  Foster J. The Case of the Speluncean Explorers by Lon Fuller 25

Death penalty under Criminal Law was created for the sole purpose to deter crimes. This cannot be applied in relation to the facts of the case since the defendants were clearly faced with the alternative of life and death. Death penalty executed by the society under a state of nature cannot be functional since the law sought by justice do not include both ends of the argument but merely on what is ruled in favor as provided by the intent of the law. It would be unjust to apply such law considering the circumstances involved in the case at bar. The character of every act depends upon the circumstances in which 29 it is done. The people in the cave could not look use the law to guide them since it was already stated in the facts that they asked for advice from the expertise of the officials outside the cave but to no avail. It was natural for them to act out of necessity in the presence of danger of starvation and death. They did the best they could under the 30 circumstances, selecting a process which is rational and fair. It would be unjust to take the lives of these four men who only resulted in such outrageous act as a desperate attempt for survival. It does not follow that the punishment of death is warranted because they had already extremely suffered an extraordinary situation. Justice will not be served by taking of another life particularly the life of these four defendants as it would also not bring back the deceased back to life nor the life of the 10 workmen. Likewise, it is favorable not to impose death penalty since funds and people were already put at stake during their rescue. If the death sentence will be applied then the loss of the ten lives at the expense of saving these four would be nothing but useless. The fact that that multiple lives were risked, lost and exhausted for the rescue of the explorers are reason enough to show that the lives of these four men are of great value and cannot be simply put to an . Life should not be sacrificed 31 in any circumstances. Lastly, We should always apply Law together with Politics

The law should be what the public wants. We agree with Justice Hardy’s opinion. The defendants should be pardoned.

Oliver Wendell Holmes, Schenck v. United States, 249 U.S. 47, 52 (3 March 1919) 30  De Bunker J. The Case of the Speluncean Explorers: Revisited , Author(s):  Justice Kozinski, Justice Sunstein, Justice West, Justice de Bunker, Justice Easterbrook, Stupidest Housemaid Source: Harvard Law Review, Vol. 112, No. 8 (Jun., 1999), pp. 1899-1912, Published by: The Harvard Law Review Association 31  Justice Foster, The Case of the Speluncean Explorers by Lon Fuller 29

“Government is a human affair, and that men are ruled, not by words on  paper or by abstract theories, but by other men. They are ruled well when their  rulers understand the feelings and conceptions of the masses. They’re rules badly when that understanding is lacking. Of all branches of the government, the 32  judiciary is the most likely to lose its contact with the common man”.

 Judges should not go in to positivism or natural law, right or wrong since by a poll it was said that the majority populace wanted the defendants to be let off with a token punishment, the judges need to be in 33 tune and should comply with this popular opinion. The legitimacy of government rests upon how well it serves the people. In history, misery in people has been caused by the lack of this accord between the ruler and the ruled, and it does not just affect people but also the government - it was destroyed. For us to maintain the well-being of our society, there must be a give-and-take between the people and the government as described by Hobbes' social contract 34 theory. We must surrender our natural freedom so that we will be free. A danger of any kind of judgment legalism is that it is alienated from popular needs. The reason that the judiciary is most likely to lose its contact with the common man is that when the masses react to a situation in terms of a few salient features, judges pick into little pieces every situation presented to them. This case is a question of wisdom, to be exercised in context, not of 35 abstract theory, but of human realities. Law is political indeed. For many times, we have seen that popular media has great effect on the  judges and certain cases have become hot issues for interesting debates. This case has aroused enormous public interest. With this in mind, he points out that this case has been publicized not only nationally but internationally. The entire world is watching. This is a populist appeal. The polls that have been taken all suggest that more than 90% of the public believed that the men on trial should be pardoned. In this case, the people have already expressed their sentiments to four people who have experienced a tragedy and humiliation. If the  Eskridge, William N. Jr., "The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell" (1993). Faculty Scholarship Series. Paper 3839 33 Eskridge, William N.Jr.,( Fuller, supra note 1, at 639, 643-44 (opinion of Handy, J.)) 34 Thomas Hobbes and J.C.A. Gaskin(1998). Leviathan. Oxford:Oxford University Press. 35  Fuller, The case of Speluncean Explorers p- 15ayaw na pag type palihug kay alas 32

courts do not consider the public’s opinion, then the government may as well lose its authority.  Justice Hardy has an indirect knowledge that the Chief Executive would not pardon these accused if they were convicted. We all know that  judges are the least democratic aspect in the overall governance process.  Judges are appointed, they're not elected, they're not represented, and their job is not to make laws. It's the job of the legislator. Therefore, why should we go against what 90% of the people want when they clearly want these people to be freed and we clearly know that the Chief Executive is not going to pardon them? This one, is also of legal realism. If we look closely on some of the realities of the administration of our criminal law, when a person is accused of a crime, generally speaking, there are four ways in which he may be escape punishment. First is the determination by a judge that under the applicable law, he has committed no crime. Second, through the decision of the Prosecutor to withdraw the indictment, third, an 36 acquittal by jury and lastly, a pardon by the executive. In this case, we cannot say that these decisions are held within the formal framework of rules that prevents factual error, excludes emotional and personal factors 37 and guarantees that all the forms of the law will be observed. Realistically speaking, the pardoning route was not available to the court, the decision that would best satisfy the public and not make the 38 court look foolish was to vote to acquit. Then, the executive could have exercised clemency. This exactly demonstrates the rule of majority in which the court should observe. Going back to the populist appeal, the judges also know that they should decide what they think is right. The majority of the people know what is right and is telling the judges and the whole world that acquitting the four poor men is the right thing to do. The opinion of the people matters. They call this opinion for a reason. The government should not stand a person on a platform, tie a rope around his neck, and then kick the platform out from under him. And invite guests to watch him vomit 39 blood. In the first place, who but the government gone be left to scrub Ibid: 37 7D'Amato, Anthony, "The Effect of Legal Theories on Judicial Decisions" (2010). Faculty Working Papers. Paper 82. 38 See id. at 639 "The Effect of Legal Theories on Judicial Decisions" (2010) 39 West J. The Case of the Speluncean Explorers: Revisited, Author(s): Justice Kozinski, Justice Sunstein, Justice West, Justice de Bunker, Justice Easterbrook, Stupidest Housemaid Source: Harvard Law Review, Vol. 112, No. 8 (Jun., 1999), pp. 1918 Published by: The Harvard Law Review Association 36

the blood out the city square? There is no point for the government to kill people to prove that killing is not right. It supposed to separate crime from the punishment. The judges must analyze and dig deeper to the case and not just apply the letter of the law. They must interpret the law based also on equity. People who believe that they are going to die immediately will not be prevented from saving they own lives by the threat of dying ultimately. We agree with the stupidest housemaid that if she found herself in the position that the spelunceans encountered she would have grabbed a butcher knife and commence to stabbing quickly. 40 Most anybody would do the same. The rule of law is a myth, something rich white folks made up to keep everybody else from taking their stuff. Poor and colored folks are supposed to shut up when the law tells them they can't have what rich 41 people have. They are supposed to believe it aren’t the rich folks making them up- it's the rule of law. But the law can often be argued every way. The judges choose the argument which they like best. The law does not mean what its words say it mean. What matters is the vote. We do not anymore need to incapacitate the defendants for they will surely not roam around again finding caves for their own graves. They must be pardoned as what the people say. After all, the sacrifice of the rescuers will be in vain if the rescued people were to be killed. V. Conclusion

The defendants, as human beings, are subject to the rules imposed upon them by nature. One of such rules is the preservation of their own life. This rule is established throughout the ages and is observed uniformly even in the behavior of animals or of human beings. The necessity to such preservation would justify any act committed that would uphold such rule; especially those done under impulse or response to the threat of such rule and those done not on impulse but with influence of the protection of such rule. In the situation of the defendants, they are merely upholding the necessity of protecting such rule for it governs their lives over which any plain reason or logic would explain. West J. The Case of the Speluncean Explorers: Revisited, Author(s): Justice Kozinski, Justice Sunstein, Justice West, Justice de Bunker, Justice Easterbrook, Stupidest Housemaid Source: Harvard Law Review, Vol. 112, No. 8 (Jun., 1999), pp. 1918 -1919 Published by: The Harvard Law Review Association 41 West J. The Case of the Speluncean Explorers: Revisited, Author(s): Justice Kozinski, Justice Sunstein, Justice West, Justice de Bunker, Justice Easterbrook, Stupidest Housemaid Source: Harvard Law Review, Vol. 112, No. 8 (Jun., 1999), pp. 1920-1921 40

Morality would be rendered immaterial for the necessity of protecting one’s own life, as it is one of the basis of the justification of self-defense. In such case as this, where one life has to be sacrificed, to be served as a meal at that, in order to save more lives, is morally excusable to acquit the defendants from the crime of murder. We should give weight to the situation under which the act was committed as it involves unique and extraordinary situation, which might be impaired by the extreme restriction of the law if such would be imposed against them. This would entirely disregard the efforts, money and even the lives of the ten workmen, who unintentionally but foreseeably, sacrificed their lives to execute the risky rescue operations. Furthermore, we hold on to the principle that the sacrifice of one life, if it is to save the lives of many, is morally right and excusable so as to acquit the defendant from the crime of murder. The defendants must be acquitted since they are not criminal under the law. Their acts being not wilful and , thus, not fall under those prohibited by law, no crime was committed by the explorers. We should take into account the mitigating circumstances from the peculiar happenings suffered by the defendants and likewise apply their right to due process. The courts should render a favorable decision to them provided that it was not done without any intention. As the great US Supreme Court Justice Holmes said “The character of every act depends upon the circumstances in which it is done”42 Hanging the defendants should not be used to show that killing is wrong. If we consider these defendants and how they dealt with the obstacle they encountered on the way to their own promised land, we got to do what we ought to. The people know this, so with the judges. Judges must follow what they think is right. Considering the people's justifiable opinion in this case will prevent any discord between the government and the people. Life is holy. It is better that one person died rather than five. Wherefore these “Survivors” having survived the situation they undergone should not be dealt with a death sentence. Life should be protected and preserved, and decisions should be made for the greatest benefit of all with the least backlash. Therefore as matter of general rule and with sufficient examination we arrived back to the most obvious and probable decision that the said Chief Executive should have responded when requested by the Jury and Justices to grant executive clemency to the survivors, in which herein he should have granted such. Hereby we Oliver Wendell Holmes, Schenck v. United States, 249 U.S. 47, 52 (3 March 1919) 42

do not support and strongly contend in convicting these survivors of crime murder with a sanction of death penalty. We rest our case.