Monday, June 18, 2012


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Compare and contrast the judgements of Handy J. and Keen J. in the Case of the Speluncean Explorers. Whose conception of the role of the judge in appellate cases is most persuasive?

This case presents contrasting representations of the relationship between law and justice. The judges involved in this case struggle to determine a significant difference. I aim to establish which judgements of Handy J. and Keen J. is the most persuasive.

Firstly I shall start with Truepenny, C.J. who made a valid reference towards the explorers trying to communicate with the outside world whilst being trapped in their, “underground prison”. This is an important point which one must be aware of, as it is referenced to throughout the case with respect to which law the defendants were under.

Truepenny, C.J. also mentions the discrepancy involved over how fair the lots were called and whether it was an appropriate method. This could be compared with the laws of contract, which themselves can be ambiguous. This doesn’t sway me in anyway what so ever as he fails to make a powerful argument with the facts before him.

The most successful element of Truepenny’s presentation has to be the explanation of the statute N.C.S.A. (N.S.) § 1-A “whoever shall wilfully take the life of another shall be punished by death.” He uses it to diminish any previous beliefs you had with respect to the innocence of the explorers. From the statute it seems that the explorers are correctly charged. Although the above presentation is quite persuasive in that Truepenny starts with some promise but finishes poorly.

Similar to Truepenny, Keen J. agrees indefinitely that there is only one way to interpret the statute N.C.S.A. (N.S.) § 1-A. and that there is no question that the explorers “wilfully” took the life of Roger Whetmore. He states that it is his job to apply the law, “I respect the obligations of an office that require me to put my personal predictions out of my mind when I come to interpret and apply the law of this commonwealth,” regardless of his personal opinion, he has to apply the law, which in retrospect is what he has done. This part of his presentation is therefore very influential. Unfortunately, he obliterates his previous argument by admitting he does not know the true meaning of the statute therefore he has reduced the effectiveness of his most powerful fact. He later covers the act of self-defence, which replaces his earlier point by becoming his most valuable source of incriminating evidence.

Keen J. criticises the Chief Justice who gives instructions to the Chief Executive as to what he should do regarding the case. “confusion of governmental functions” it is not the duty of Chief Justice to address Chief Executive although he does express his views that he would pardon the explorers “I would pardon these men altogether, since I believe that they have already suffered enough to pay for any offence they may have committed. I want it to be understood that this remark is made in my capacity as a private citizen” but he does not express this as a judge but as a ‘private citizen,’ by stating that his views are of a private citizen he prevents himself from being criticized.

Handy, J. brings a new perspective to the case and that involves the validity of the ‘contract’ made between the defendants in the cave. He discusses the reality of this contract and whether it has any place in the law of the court. I think it is an element, which should be considered in the case, and therefore significant in the decision over which presentation I find to be most persuasive. Regrettably his presentation is weakened when he brings in public opinion and then says that it is not very trust worthy. This is not a good idea as this supports my view that Handy, J. seems to have based much of his presentation on speculation rather than fact and this makes it unsatisfactory.

The main conclusion reached by Keen J. is that the conviction should be upheld because despite the horrifying nature of the situation that the men found themselves in, they did in fact contrary to the statute wilfully murder Roger Whetmore. It was wilful because it was premeditated and arranged, and also it fell outside the boundaries of the other interpretation which is self defence. Despite the fact that the act was committed to avoid death by starvation of the remaining members it could be considered an act of defence because Whetmore didn’t make a threat to the lives of the defendants and self defence is considered to be the resistance of an aggressive threat to ones own life.

Keen J’s. reasoning is consistent, he makes it clear throughout, the difference between moral and legal thinking and the responsibilities of judges to apply the latter even if their preferred reaction would be to go with the former, he never wavers from this however he highlights the opposing argument and expresses sympathy with it but he also breaks it down legally and maintains that a judges duty is to apply the law and obey statutes even if personal opinion urges you to go the other way.

Although Handy J. and Keen J’s. arguments are totally different, one can’t help but point out the fact that Handy J’s views would perhaps prevail; that given public opinion these men should go free. This seems to be the opinion of Keen J. as well who expresses his opinion as a private citizen but not as a judge.

The most persuasive argument in this case seems to be that of Handy J. Instead of leaving it for the courts to decide, he wants the public to decide the fates of these men and not a person or persons who may be biased and out of touch with modern times. Of course, the law has to be upheld, but this is one those cases where there is a dilemma.

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