THE CASE OF THE SPELUNCEAN EXPLORERS: ALTERNATIVE JUDGEMENT
I. INTRODUCTION
Throughout the breadth and width of human existence the value of life has played a crucial role in the development of our justice system. A strict reading of the murder provision can only lead to the conclusion that the law was contravened by the defendants and, therefore, the consequences of their actions must be faced, however severe. This does, of course, seem an odious conclusion; it indicates that the law of Newgarth condemned these men to death at the moment of the rockslide; there was no possible way for them to survive, for either they would have starved to death, or killed one of their number and been convicted of murder. This, I suggest, shows a deep and fundamental …show more content…
On this basis, I agree with my brother Tatting J, insofar as his finding Foster J’s ‘state of nature’ argument to be lacking a clear basis for his assertion that the explorers somehow escaped the jurisdiction of Newgarth. In addition, I am in agreement with my brother Tatting J’s critical view of Foster J being unable to pinpoint when this supposed transition of jurisdiction occurred. Subsequently, I find Foster’s argument that ‘the law is underpinned by the fundamental assumption that men live together, and that once that assumption loses its truth, the law loses its force’, flawed for several reasons. Firstly, allowing that premise for the moment, it is not at all clear that the explorers were not living together or, therefore, living in a "state of nature.” They were, after all, living together in the cave, thereby coexisting with each other. In addition, there existed a distinct possibility that they would rejoin larger society, upon the rescuers having succeeded in clearing the rocks. The fact that, in the meantime, they were separated from society by a "a solid curtain of rock" seems relevant only if we allow physical impediments to obstruct the reach of the law. Thus, it is my opinion that the trapped explorers remained entirely under the jurisdiction of Newgarthian law. Moreover, allowing a state of nature to exist, rather than attempting to alter or …show more content…
In particular, this case highlights the need for the inclusion of an explicit provision creating and outlining defences that ought to be available to defendants charged under N.C.S.A. (N.S.) § 12-A. However, alteration of legislation being beyond my power as a judge. In addition, I disagree with my brothers Tatting, J and TruePenny J who are of the opinion that the safeguards that exist to mitigate the harm exerted by such laws, such as executive clemency, are substantial enough when that chance means gambling with the lives of multiple individuals. Therefore, without the ability to enact immediate legislative change, I am of the strong conviction that the previous lack of application of the statute to our own judicial system is, in itself, enough to substantiate an innocent verdict. If we, as the judiciary, are able to wilfully condemn an individual to the death penalty, without facing the penalties associated with it, then so should life-or-death situations have the ability to fall under this implied exception. Furthermore, the action of the defendants clearly lacked wilfulness, due to the extreme necessity of the deed itself. Had the defendants not found themselves in such a dire situation, they would not have chosen to carry out such an extreme act. Moreover, the application of the reasonable person to said argument further exacerbates when the lack of
I. INTRODUCTION
Throughout the breadth and width of human existence the value of life has played a crucial role in the development of our justice system. A strict reading of the murder provision can only lead to the conclusion that the law was contravened by the defendants and, therefore, the consequences of their actions must be faced, however severe. This does, of course, seem an odious conclusion; it indicates that the law of Newgarth condemned these men to death at the moment of the rockslide; there was no possible way for them to survive, for either they would have starved to death, or killed one of their number and been convicted of murder. This, I suggest, shows a deep and fundamental …show more content…
On this basis, I agree with my brother Tatting J, insofar as his finding Foster J’s ‘state of nature’ argument to be lacking a clear basis for his assertion that the explorers somehow escaped the jurisdiction of Newgarth. In addition, I am in agreement with my brother Tatting J’s critical view of Foster J being unable to pinpoint when this supposed transition of jurisdiction occurred. Subsequently, I find Foster’s argument that ‘the law is underpinned by the fundamental assumption that men live together, and that once that assumption loses its truth, the law loses its force’, flawed for several reasons. Firstly, allowing that premise for the moment, it is not at all clear that the explorers were not living together or, therefore, living in a "state of nature.” They were, after all, living together in the cave, thereby coexisting with each other. In addition, there existed a distinct possibility that they would rejoin larger society, upon the rescuers having succeeded in clearing the rocks. The fact that, in the meantime, they were separated from society by a "a solid curtain of rock" seems relevant only if we allow physical impediments to obstruct the reach of the law. Thus, it is my opinion that the trapped explorers remained entirely under the jurisdiction of Newgarthian law. Moreover, allowing a state of nature to exist, rather than attempting to alter or …show more content…
In particular, this case highlights the need for the inclusion of an explicit provision creating and outlining defences that ought to be available to defendants charged under N.C.S.A. (N.S.) § 12-A. However, alteration of legislation being beyond my power as a judge. In addition, I disagree with my brothers Tatting, J and TruePenny J who are of the opinion that the safeguards that exist to mitigate the harm exerted by such laws, such as executive clemency, are substantial enough when that chance means gambling with the lives of multiple individuals. Therefore, without the ability to enact immediate legislative change, I am of the strong conviction that the previous lack of application of the statute to our own judicial system is, in itself, enough to substantiate an innocent verdict. If we, as the judiciary, are able to wilfully condemn an individual to the death penalty, without facing the penalties associated with it, then so should life-or-death situations have the ability to fall under this implied exception. Furthermore, the action of the defendants clearly lacked wilfulness, due to the extreme necessity of the deed itself. Had the defendants not found themselves in such a dire situation, they would not have chosen to carry out such an extreme act. Moreover, the application of the reasonable person to said argument further exacerbates when the lack of