The facts of the case the Speculean Explorers is that there were five cave explorers which got trapped inside a cave due to a landslide and they had only scant provisions. Therefore, to stay alive they decided to play a dice game and whoever lose, will have to sacrifice himself. In The Case of the Speluncean Explorers, Justice Foster has put forward his argument in favour of the accused and has put forward his arguments on two independent grounds in support of his views that the law does not compel "(…) the monstrous conclusion that these men are murderers… ", the first one is the "state of nature" at the time of the killing and second ground is the “functional approach” that should be used in applying the statute.
In the first ground, …show more content…
In his judgement Keen has taken a formalist approach and had viewed the law as certain and stable whereas Foster had viewed the law from a realist and functionalist approach and recognizes its mobility and its legal interpretation in terms of practical politics. Justice Foster had also criticized the judgement of Justice Truepenny as Justice Truepenny argues that the statute should be applied rather than being interpreted and as the statute stated: “Whoever shall wilfully take the life of another shall be punished by death” thus the defendants shall be hanged whereas Justice Foster argued that the defendants acted on the basis of self-defence and even viewed that the law should not be apply as it is but it should be read between the lines and should be interpreted reasonably or according to the facts of each case "no superior wants a servant who lacks the capacity to read between the lines." and he went on giving two examples …show more content…
He even stated that the element of self-defence cannot be used in this case as the defendants had wilfully executed Whetmore’s killing. He had also made reference to the case of Jean Claude Valjean of ‘Les Miserables’ in which Jean Claude was sentenced to hard labour because he tried to steal a loaf of bread in order to feed his starving family. Justice Tatting argument was if Valjean could not be excused of stealing a loaf of bread due to starvation so how can the defendants be freed after admitting killing
In the first ground, …show more content…
In his judgement Keen has taken a formalist approach and had viewed the law as certain and stable whereas Foster had viewed the law from a realist and functionalist approach and recognizes its mobility and its legal interpretation in terms of practical politics. Justice Foster had also criticized the judgement of Justice Truepenny as Justice Truepenny argues that the statute should be applied rather than being interpreted and as the statute stated: “Whoever shall wilfully take the life of another shall be punished by death” thus the defendants shall be hanged whereas Justice Foster argued that the defendants acted on the basis of self-defence and even viewed that the law should not be apply as it is but it should be read between the lines and should be interpreted reasonably or according to the facts of each case "no superior wants a servant who lacks the capacity to read between the lines." and he went on giving two examples …show more content…
He even stated that the element of self-defence cannot be used in this case as the defendants had wilfully executed Whetmore’s killing. He had also made reference to the case of Jean Claude Valjean of ‘Les Miserables’ in which Jean Claude was sentenced to hard labour because he tried to steal a loaf of bread in order to feed his starving family. Justice Tatting argument was if Valjean could not be excused of stealing a loaf of bread due to starvation so how can the defendants be freed after admitting killing