The Case Of The Speluncean Explorers

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The Speluncean Explorers-Further Proceedings* by Anthony D'Amato, 32 Stanford
Law Review 467 (1980) Code A80a
Lon L. Fuller's The Case of the Speluncean Explorers [FN1] is a classic in jurisprudence.
Set in the Supreme Court of Newgarth in the year 4300 the case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Professor Fuller in 1949 are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point- the "rights thesis" as advanced by Professor Dworkin and others. [FN2]
Simply stated, the rights thesis holds that there is a "right" answer, and only one right answer, in every case. The litigants have a "right" to that and finally-to add one more shade of meaning to the comprehensive term "right"-the answer thus arrived at is dictated by general requirements of justice. Since justice is a branch of morality, the "right" answer is not only correct but also right in a moral sense.
My purpose here is to examine how the rights thesis would apply to the Speluncean Case, and to do so in the spirit of my former teacher's presentation. Therefore, let us imagine that, right after the decision in the Speluncean Case was handed down, the Chief
Executive of Newgarth constituted a Special Commission of three law professors at the
University of Newgarth School of Law to present a recommendation on the question whether executive clemency should be extended to the convicted defendants.[FN3]
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*Anthony D'Amato, 1980, Professor of Law, Northwestern University School of Law
[FN1] Fuller, The Case of the Speluncan Explorers, 62 HARV. L. REV. 616 (1949).
[FN2] See R.