Main points
We went over the first three opinions in the Speluncean Explorers case: Truepenny, Foster, and Tatting.
Foster’s first argument
We spent a lot of time talking about Foster’s first argument. In particular, we said that it was ambiguous whether his point was:
- There are no laws where coexistence is impossible.
- The Explorers were governed by the social contract they agreed to.
We also clarified the remarks he made about highways, etc. on p. 146. These were made in response to an objection, that life has absolute value.
Foster’s second argument
Foster’s second argument involves a rule for interpreting the Commonwealth’s statutes.
We did not have much time, so we mainly noted that his apparently patronizing remarks about servants were really in response to an objection. The point was not to say anything at all about household servants. It was to say that the courts would still be subservient to the legislature if they followed his interpretive rule.
Tatting
It seems to me that Tatting and, to an extent, Truepenny, are supposed to stand for those who think the philosophy of law (or “jurisprudence”) is useless. By a philosophy of law, I mean a view of the place of law in our values, much as a philosophy of life is a view about our place in the universe.
Well, they stand for those who think that it is useless for judges. (You might have a philosophy of law but think that judges shouldn’t use it).
Both of these justices stick closely to the written statutes and precedents. And neither comes up with a solution.
Truepenny is forthright about this. The law is limited, so we should dump the problem in the executive branch’s lap.
Tatting seems more troubled. His conscience tells him that he should come up with a solution, a way of reconciling justice and the law as he understands it. But he fails and so has nothing to say.
The lesson that Fuller wants us to draw from this justice, I think, is that simply looking at the written law and precedents without a theory of how to interpret them cannot get very far.