Legal Skills: Evaluating Justice Keen in Speluncean Explorers

This essay provides a critical analysis and evaluation of Justice Keen's judgment in Lon Fuller's 'The Case of the Speluncean Explorers'. The essay focuses on a concise and accurate analysis of Justice Keen’s legal argument, examining his adherence to legal positivism and his emphasis on the separation of law and morality. It outlines the facts of the case, the differing views of the judges, and Keen's perspective on the supremacy of law, the inapplicability of self-defense, and the role of judges in upholding the law. The analysis also discusses the implications of Keen's views and their relevance to the case, highlighting the importance of understanding his reasoning within the context of the Speluncean Explorers case. The essay concludes by summarizing Keen's main arguments and their impact on the overall judgment, showcasing that the law cannot be questioned and all judges must act according to the laws and not provide their personal views.

Running head: LEGAL SKILLS
Legal Skills

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There are five judicial possible solution to the case of Speluncean Explorers has been
provided in the case. Lol L Fuller creates this case in Harvard Law Review. The main
focussed of discussion is on the judgement of Justice Keen. The other judges views also will
be discussed in this case1.
The four defendants who have been charged for murder are the members of Speluncean
Society as they are interested in the exploration of caves. It was happened that the explorers
while visiting the cave a landslide has occurred and due to that explores was completely
blocked into the cave. The rescue team informed that it would take ten days by to reach the
explorers. Explorers have to survive for ten days and they had been ran out of food for ten
days. The explorers to survive took out lottery and it was decided that the loser would be
killed and eaten by other explorers for survival. The other explores than have survived and
had been rescued. The Court found them guilty for the capital punishment2.
Chief Justice Truepenny has found the defendants guilty and has affirmed the conviction.
However, at the same time clemency has also been demanded by the chief justice truepenny.
As the facts suggests in the case Australia Consume Law, executive shall be provide
clemency.
Justice Foster will have set aside the conviction because he has stated that the circumstances
which the defendants face where the law of Commonwealth will not be applied. It has been
analysed from the decision of foster he wants to convey that in some circumstances the law of
society and where the law of defence would have been used3.
Justice Tatting has not reached the conclusion although he has criticised the judgement of
Foster. It has been stated that the natural laws has been under the postulate “state of nature”
that specify the freedom of contract has been much above than right to life4.
Justice Keen has affirmed the conviction and also criticised the views of Foster and has
provided their personal views on the morality and immorality. The case of Speluncean has
been considered simple by justice keen and stated that it is the question of Newgarth positive
law. It has been analysed by the views of Justice Keen has exemplifies the reasoning for the
relation of Legal Positivism. The Legal Positivism say that the only legal or legitimate
1 Lon Fuller, The Case of the Speluncean Explorers (1949) 62 Harv.L.Rev
2 Frederick Schauer, Fuller's Fairness: The Case of the Speluncean Explorers (2016) 11 U. Queensland LJ
3 Marius Van Staden, "The Case of the Speluncean Explorers in the South African Constitutional Court” 1
(2015) 1 Obiter 35.
4 George R, '"Natural Law”' (2008) 31 Harv. JL & Pub Pol'y

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sources will be considered such as rules, written regulations and principles that shall be
recognised by government authorities5.
Justice Keen has the clear view that law of morality is the above of all laws and it should
been respect by all judges. Justice keen has criticise the chief justices by saying that clemency
should been provided to defendants but as the judge he has not the role to advice executive
that what to decide. The morality side of equation cannot be decided by him that what is right
and what is wrong. Justice keen has simply found that the laws of statue should been
implemented to the case. The major problem found by justice keen in this case is the failure
of separation of law and morality. If the differentiation had been made than realizes that, the
statues are not mandatory for personification of moral feelings and the decision becomes
easier. He stated that it was the time when fact legislates was done by judges very freely in
the Commonwealth but now there is a clear principle that is supremacy of law. It can
consider that hard and harsh decision can be good, for this the statues are forced to reconsider
the decision. The people will not remember legislation for its judiciary but will remember for
its mistake. He has said that the exception of self-defence will not apply in this case. It only
applies when there is a serious threat to his own life. It can be said that it is very clear that
the case does not belongs under the scope of exception, as it was plain and there was no
threat to the life of defendants6.
It can be concluded from the Justice Tatting view that law should be in the form of law. It
does not matter whether it is a bad law or a good law.
Justice Handy has the view laws are made for the public and it must been in accordance with
the public. The laws should been that what public wants. The judges should not go in
accordance with the positivism or natural laws. Justice Handy said that majority of people
want in this case in accordance with the poll that the defendants should been released.
According to his view, judges have to comply with the public opinion7.
In conclusion, it can be said in Speluncean case all judges have their different views. It can be
said that all judges has applies different theories and gave arguments in accordance with their
views. Justice Keen judgement has been analysed as he found defendants guilty of capital
5 Wink Van der Burg, '"The Work Of Lon Fuller: A Promising Direction For Jurisprudence In The Twenty-First
Century”' (2014) 64 University of Toronto Law Journal
6 At 1
7 William Eskridge, "Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a
Nutshell." (1992) 61 Geo. Wash. L. Rev

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punishment and in his view there must been supremacy of judiciary. The law cannot be
questioned and all judges must act according to the laws and not provide their personal views.

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Bibliography
Secondary Sources
Journal
Robert George, '"Natural Law”' (2008) 31 Harv. JL & Pub Pol'y.
Schauer, F, Fuller's Fairness: The Case of the Speluncean Explorers (2016) 11 U. Queensland
LJ
Van der Burg W, '"The Work of Lon Fuller: A Promising Direction For Jurisprudence In The
Twenty-First Century”' (2014) 64 University of Toronto Law Journal
Van Staden, M, "The Case of the Speluncean Explorers in the South African Constitutional
Court” 1 (2015) 1 Obiter 35
Fuller, L, The Case of the Speluncean Explorers (1949) 62 Harv.L.Rev.
Eskridge, W, "Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation
in a Nutshell." (1992) 61 Geo. Wash. L. Rev.