Speluncean Explorers Essay

This essay will be looking at the judgement of J Foster and his colleagues in the case of the Speluncean Explorers. In the case, five explorers were trapped in a cave after a landslide occurred. They had then found out that the rations that they had would not keep them alive, so they ate one of the explorers. After being rescued, they were held accountable for the murder of the fifth explorer and faced a mandatory death sentence. Newgarth’s statute states, “whoever shall wilfully take the life of another shall be punished by death”1 Foster J had two main grounds for his decision for the explorer’s conviction to be quashed. The first ground was based on enacted and positive law of the commonwealth. The second ground he took was said to be ancient bits of legal wisdom by suggesting that a man may break the latter of the law, but not the law itself.2

The first ground, was the enacted and positive law. Foster J explained, “when coexistence of the men became impossible, then a condition that underlines judicial precedents and statutes ceased to exist”3 Here, Foster J is suggesting that because they were in theory locked away from society, the legislation did not apply to them. …show more content…
In this ground, we can see that the purposive approach was used for interpretation. It is saying that the man may break the latter of the law, but in some circumstances, it does not need to be sanctioned. J Foster said in regard to self-defence, “Centuries ago…killing in self-defence is excused…but in the favour of self-defence is not out of the words of the statute…”5 After analysing this quote, it suggests that that Foster J is saying that the men were acting in self-defence to avoid death by starvation. It could also be argued that it was not necessary to kill Whitmore, “But such a conclusion does not mean that we should give them a privilege of acting "out of necessity" to harm or kill someone