Premchand: The Holy Panchayat

The Holy Panchayat

Introduction
‘The Holy Panchayat’ or ‘Panch Parmeshwar’ as it was titled in Hindi
carries the distinction of being Premchand’s first story to be published in
Hindi. Originally it had been written in Urdu and was titled ‘Panchayat’
but Premchand’s desire to reach a wider readership led him to switch
over to writing in Hindi and he translated this story himself. It was
published in 1916 in the May-June issue of the periodical Saraswati.
‘Panch Parmeshwar’ belongs to the early group of short stories by
Premchand, which were written between 1916 and 1920. Other stories
included in this group are ‘Namak ka Daroga’, ‘Bade Ghar ki Beti’, ‘Rani
Sarandha’, ‘Mamta’, ‘Saut’, ‘Amavasya ki Raat’ etc. Most of these stories
share a common purpose and exhibit a similar flow of ideas. They are
narrative / descriptive in nature and are based on an idealistic view of
things. The sense of the teller and the tale comes through quite strongly
and the stance of the author is of the omniscient narrator. He reveals all,
knows the characters’ background, can take a peep into their hearts and
minds and can philosophize on the prevailing state of affairs. Most of
these stories carry within them Premchand’s early beliefs and
convictions. When he bases the resolution of these stories on a ‘change of
heart’ he actually believed it to be possible. In fact, these stories have
often been referred to as the ‘change of heart’ stories since they mostly
end with the events getting resolved through a ‘change of heart’ in the
concerned characters.The element of chance plays an important role,
both in the development of the plot as well as in the resolution of events
towards the end. Because the resolution of the stories depends to a large
extent on an idealistic premise, there seems to be a corresponding lack
of the element of believable probability, which in turn takes the story
away from being entirely realistic in nature.

Detailed Analysis
‘The Holy Panchayat’ or ‘Panch Parmeshwar’ is set in a village and begins
quite characteristically with Premchand at first introducing the reader to
the physical as well as the emotional backdrops of the story. Jumman
Sheikh and Algu Chaudhary show a deep bond of friendship, which goes
back to their childhood days. The two belonging to different faiths shared
nothing, not even food or religion. There was nothing to bind them
except their mental and emotional affinity. The omniscient narrator
intervenes at this point to tell us that this of course is the basic rule of
friendship. Then he proceeds to describe how if Jumman had to go to Haj
he would entrust Algu with the responsibility of looking after his house.
Algu did the same if he had to be away anytime.
We are given a glimpse of the beginnings of this friendship in the boyhood
days of these men when both used to be students of Jumman’s father
Jumrati. In a short paragraph Premchand sketches a vivid picture of the
method of imparting and receiving education in a village. Algu is ever
willing to run odd errands for his teacher and to get his hubble-bubble
ready for him. We may recall how Premchand too received a similar
coaching in the Persian and Urdu letters from a Muslim teacher and was
ever trying to please his teacher though at times for reasons other than
the apparent ones. Despite Algu’s numerous odd jobs for his teacher, he
could never succeed in studies and consoled himself by saying that
education was not in his kismet. Premchand is here giving us a peep into
the mind of an average Indian who is always ready to blame
hiskismet for his own failures. Jumman on the other hand did well and
became known for his learning in the surrounding villages. Algu was
known and respected for his wealth.
Having set the story against this backdrop of a village scene and against
this background of friendship and harmony, Premchand proceeds to
develop it further and introduces a new character - Jumman’s old aunt.
At this point we may stop to take note of a few things. Two things are
important here. Firstly the rural background of the story, which is going
to necessitate the calling of the Panchayat. The Panchayat used to bring
justice to remote areas of the country especially to people who could
either not afford the city courts or simply could not reach them. Equally
important is the strong bond of friendship that existed between the two
friends because it is this bond which will be dealt a severely damaging
blow during the proceedings of the Panchayat. At the same time it will be
used for making a very important point as far as meeting out justice to
the accused is concerned. Thus in a very skillful manner Premchand is
going to connect the opening of his story with the events that follow.

 A Build-up to the Panchayat Proceedings

We are given another peep into the past and are acquainted with events
that have brought matters to their present state. Jumman’s old aunt had
handed over her whole property to Jumman on the assurance that in
return she would be looked after and provided for till she lives. For some
time things went off well but as it usually happens, the old aunt and
Jumman’s wife Kariman began having daily skirmishes over minor matters
like the quality of food being given to the aunt not being good, the dal
being given without any ghee and so on. The aunt complained to
Jumman, but he just turned a deaf ear. He, along with his wife, was of
the view that they had agreed to look after the old lady thinking that she
did not have much time left. But now it seems she will live forever and
already the amount they had fed her would have been enough to buy
them the land she had handed over to them. Such was the talk that the
old aunt had to listen to. She tolerated it for some time but then having
failed to make Jumman listen to her complaints, the old aunt now
demands that she be given some money so she can cook her food
separately. The short exchange that follows between the aunt and
Jumman is packed with suppressed emotions. On being told that money
doesn’t grow on trees, the aunt replies in an apparently polite manner
that though her needs are very little she has to somehow make both ends
meet. The politeness carries with it a sense of simmering anger in the
original, which threatens to burst any moment. Jumman’s cruelly
insensitive comment ‘I had no idea, that you were determined to live for
ever.’ puts a question mark on all his learning and wisdom which ought to
have made him more humane but seems to have succeeded in making him
just more materialistic and insensitive.
When Jumman refuses to give her money, the aunt demands that her land
be returned to her so she can live off it for the rest of her remaining
days. Jumman refuses. She threatens to call the Panchayat. At this
Jumman smiles to himself and readily agrees. After all, who would dare
to speak against him? People of this village as well as other surrounding
area were all indebted to him in some form or the other. Nobody would
dare make him his enemy.

 The Basic Structure

From the point of view of the structure of the story notice that after
having introduced us to the main characters and after having placed them
against a certain physical and emotional backdrop, a problem has now
been presented. As is often the case with Premchand’s stories, he takes
up some problem or the other in almost all of them and works towards a
resolution. This is what is going to happen in ‘The Holy Panchayat’ as
well. A problem has been presented and now the rest of the story will
work towards a resolution of the same.
Two important observations are being made at this point. On the one
hand, Premchand has brought in the Panchayat after preparing the
ground by describing in detail the circumstances that have given rise to
the need for holding the Panchayat. The old, infirm, poor aunt strongly
believes that she will find justice in the village council. From her point of
view the Panchayat seems to be a fair minded authority which would look
at the matter objectively and see the injustice of Jumman’s behaviour.
Premchand thus seems to be presenting the Panchayat as a viable
alternative system of governance for people in the remote corners of the
country. But in Jumman’s reaction Premchand is at once hinting at the
cracks and fissures that are already threatening a smooth, objective and
fair working of this system because Jumman is quite confident that he
would be able to sway the Panchayat’s judgement in his favour.
The old aunt begins to garner support for her case by going and pouring
out her story to all who were willing to listen to her. Premchand being a
keen observer of people and their behaviour gives us a wide range of the
reactions to the old woman’s lament. Some console her, some blame it
on the times but there are even some who have fun at her expense and
laugh at her bent back, sunken cheeks and white hair. Some go even as
far as to admonish her for still having a desire for material things despite
having one foot in the grave. Premchand hints here at the streak of
cruelty that is present in human beings. The question whether the aged
and the infirm should give up all their desire for peace and happiness just
because they are old is implied in his observations.
The old aunt is a determined soul and she persists in going from one
person to the other, inviting them to the Panchayat and to see that
justice is done. In the end she reaches the house of Algu Chaudhary.
Because of his friendship with Jumman, Algu wants to stay away from the
whole affair. The aunt, however, very cleverly appeals to his conscience
and his sense of justice and challenges him by asking ‘Will your turn your
back to justice for fear of ruining your friendship.’ This is the key
sentence of the whole story. As pointed out in the annotations to your
text, the original version carries the word imaanrather than a Hindi
equivalent of justice. The word imaan should carry with it a sense of
conscience too and probably integrity would have been a better word to
use. At this point Premchand enters the narration to make a brief analysis
of the struggle going on in Algu’s mind and bases his argument on a
psychological insight into the subtle workings of the human
consciousness. In a normal course of events we often let our conscience
and our sense of justice persist in a state of convenient slumber but once
challenged it becomes alert and is on its guard. Had the old aunt not
challenged him, Algu would have turned a blind eye towards justice.
Once challenged, however, his conscience rears up its head and now
refuses to be put to sleep. He does not have the courage to say ‘no’ to
the aunt now. Structurally this exchange between Algu and the aunt has
been strategically placed in order to prepare a convincing ground for
Algu’s fair judgement in the Panchayat.

 The Realistic Setting in Minute Details

There is a break in time and scene and from the mind of Algu Chaudhary,
Premchand next moves on to describe the physical setting of the
Panchayat. Attention is drawn to the fact that Jumman had taken care to
provide for the comfort of the Panchayat members, having covered the
earthen floor and also having arranged for pan, ilaichi, hukka and
tobacco. A realistic and detailed description of the scene follows,
complete with the barber filling the chillums, the village boys running
around here and there, the smoke arising from the smouldering dung
cakes, the birds chirping noisily in the trees and also the village dogs who
too had started gathering around, anticipating a village feast and who
were contributing to the general din. Premchand being a master of such
descriptions has in a few sentences created the whole scene for us and
we can almost visualize the same. The smoke from the chillums and
from the fire that has been lit is dense enough to be used as an image to
convey how Jumman was going to try and obscure reality here.

 The Panchayat as an Alternative System of Governance

The proceedings of the Panchayat begin. The aunt puts the case before
the members. She is an old and poor woman, a widow, unable to fight ‘in
a court or durbar’ and so has come to the village Panchayat with a hope
for getting some justice. As explained in your textual notes, the aunt’s
use of the word ‘durbar’ lends irony to the situation because in colloquial
terms a durbar is ‘a large assembly of favour seeking individuals at an
important person’s place’. Since Jumman is an influential person in the
village, the aunt is afraid that this Panchayat may turn out to be his
‘durbar.’ All the same, she appeals to the sense of justice of all who are
present and puts her case before them.
Premchand, while following the events of the story and also the
proceedings of the Panchayat step by step, at the same time gives us an
insight into the workings of the Panchayat as a social organization which
makes an alternative system of governance available to the people. In the
rural Indian set-up the village Panchayat had an important role to play in
reaching justice to the poor and downtrodden people who could not
afford the expenses of the city law courts. Premchand in his heart was
partial to this system of justice at the local level just as he had a
preference for the joint family system. With time and due to various
socio-political reasons, both these systems perished but in this story
Premchand makes the Panchayat system work despite all the negative
forces trying to corrupt it. There is an element of wishful thinking on
Premchand’s part. In the unpleasantness between the aunt and the
nephew, however, he could not deny the breakdown of the joint family
system.
 An Idealistic View of Justice

When Algu Chaudhary is named the Sarpanch, Jumman feels overjoyed

and is sure that the judgement will be in his favour as Algu was his
childhood friend. Yet, Premchand shows a very strong sense of conscience
prevailing upon the whole proceeding and Algu pronounces his decision in
favour of the aunt, ordering Jumman to return her lands. Jumman is
stunned! For him it is almost as though his friend had stabbed him in the
back. But Premchand is writing of the times when people’s faith in the
Panchayat system was firm and they abided by its decision whatever may
be the case. So Jumman neither opposes the decision nor poses any
hurdle in the smooth carrying out of the sentence though from that day
onwards the bond between the two friends ceases to exist. They behave
as strangers with Jumman believing that Algu had proved to be
treacherous while Algu believed he had merely performed his duty.
Premchand uses an appropriate simile to describe the relationship
between the two friends when he compares their meeting to the meeting
of a sword and a shield emphasizing on the coldness associated with
steel.

 A Doubling of Events

Another time lapse occurs and Premchand takes us a month ahead from
the old aunt’s Panchayat to a build up of events which give Jumman an
opportunity to take his revenge on Algu when he gets a chance to act as
Panch between Algu Chaudhary and Samjhu Sahu. Premchand brings us up
to date with the situation by first giving us the background to it. It so
happens that Algu had bought a pair of oxen from the village fair the
previous year and within a month of the Panchayat’s decision one ox dies.
He suspects Jumman Sheikh for poisoning it but cannot prove it. Since
Algu is unable to put a single ox to use in the fields he decides to sell it
off. Samjhu Sahu the typical village merchant comes as a prospective
buyer as he needs the ox to ferry his merchandise to and fro between the
farm and the village. Promising to pay the money in a month’s time he
takes the ox away. In that one month Samjhu Sahu extracts the maximum
amount of work from the ox in addition to not feeding him properly and
also not giving him any opportunity to rest and beating him cruelly
according to his whim and fancies. The ox finally gives up and one
evening on a return journey from the town market he collapses on the
road while the village is still a considerable distance away. The cart is
loaded with goods and Samjhu Sahu is also carrying all the cash earned
from his business during the day. He tries to keep awake so the thieves
would stay away but is unable to. When he wakes up in the morning, most
of the goods are stolen as well as the money which he had with him. The
Sahu reaches home an angry man and along with his wife puts the entire
blame on Algu Chaudhary for having sold him a good-for-nothing ox. He
refuses to make any payment for the ox now. After a long wait the
matter comes to the Panchayat. Once again the village gathers under the
same tree to witness the case proceedings. This time it is Jumman
Sheikh’s turn to be made Sarpanch.

 The Role of Conscience

At this point Premchand once again stops to take a look at the subtle
workings of the human consciousness. It is, according to him, a position
of responsibility that brings a man’s seriousness and sense of duty to the
fore. He supports his arguments with a few examples as that of the
newspaper editor who had been making scathing attacks on the politician
only till the day he enters politics himself. Then his style of
understanding undergoes a remarkable change and he becomes
‘impartial’, discriminate and objective’. Similar is the case of the high
strung young people who learn to be patient once they have to shoulder
the responsibility of their own families. In a like manner, Jumman Sheikh
too feels a similar sense of responsibility for his high position the moment
he is made Sarpanch. Till that moment he had been unable to understand
the reason behind Algu’s decision in favour of the aunt. Now, being faced
with a similar dilemma, Jumman could have given vent to his anger by
deciding the case against his friend Algu though that would have meant
going against his own conscience and against justice too. The moment he
sits on the seat of the Sarpanch the sense of responsibility for his position
comes to the fore and he knows, that while pronouncing judgement he
has to be objective and not let any personal feelings influence what he
has to say. He cannot deviate from the truth at all. It is almost as though
God Himself speaks through the mouth of the Sarpanch.
Algu, who had been dreading Jumman’s verdict, is overjoyed when he
listens to the case being decided against the Sahu. He, along with the
other villagers, is all praise for Jumman’s sense of justice and truth which
never gets swayed or coloured by his personal feeling. This, observes
Premchand, is true justice. Such a fair decision prompts us to believe
that God resides in the Panch and speaks through him.
The withered tree of friendship is given a new lease of life after this
Panchayat. All misunderstandings are removed and the point is reiterated
that in pronouncing a just and fair sentence at their respective
Panchayats both friends had remained true to their conscience and their
sense of Justice. Both now believe that it was almost as though God
Himself was speaking through them while they were holding that high
position of authority. They cry on one another’s shoulder and all is
forgiven and understood and their friendship is revived once again.

Additional Comments

 Element of Chance

The structure of the story is similar to that of Premchand’s other stories.

In an entirely credible manner Premchand begins by talking about
mundane, day to day affairs. While developing the plot, however, he
relies not just on logic and argument but a great deal on chance as
well. In fact, most of the important events that take place in the story
happen due to chance — it is by chance that Algu is made the Sarpanch, it
is by chance that his ox dies, it is by chance that he sells the other ox to
a man like Samjhu Sahu, it is also by chance that the other ox dies on the
village road at night and the Sahu is robbed and so on. Yet, all these
incidents have a strong sense of believable probability and they have all
been woven together intricately and skillfully which makes it a realistic
story on one level while an idealistic one on the other. The events can
happen the way they do in the story but can such a change of heart occur
the moment a person is made the Sarpanch? This is a point that invites
critical speculation. What if Samjhu Sahu had been named the Panch in
the first case? Would he have been as objective and as fair-minded as
Algu? Surely all the preparations that Jumman had made for the benefit
of the members of the Panchayat would have had an influence and
helped in deciding the case in favour of Jumman rather than the old
aunt.

 A ‘Change of Heart’Story

‘Panch Parmeshwar’ or ‘The Holy Panchayat’ is a simple story, which is

built around the seemingly unimportant, day- to- day events in the lives
of the people of an Indian village. Yet in its ordinariness we are given a
taste of the greatness of Premchand’s art as a storyteller. He is able to
create the atmosphere of an Indian village quite effortlessly and equally
effortlessly is he able to convey the importance of the alternative system
of justice and governance that we see in operation here. Yet there is
more to it than just a description of how a village Panchayat solved the
cases of Jumman and Algu. On one occasion Premchand had himself
outlined his methods and his intentions for writing a story. He said, ‘I
never write a story for the sake of describing an incident and event. I
write for only one reason.... to present a human truth, or to show a new
angle of looking at common and obvious things... I believe, very strongly,
that no story can depend totally on a clear scene or a dramatic incident;
the story’s sap is a psychological insight.’ In ‘The Holy Panchayat’ too we
are given that psychological insight when he describes a change of heart
occurring in the cases of both Jumman and Algu the moment they are
made Sarpanch. Lest we may remain unconvinced about it in the first
instance when Algu gives his decision against Jumman, Premchand has
given us a doubling of the same occurrence when Jumman too
experiences a similar sense of responsibility and change of heart when he
is made Sarpanch. Structurally therefore we have two separate incidents
proving the same point that a village Panchayat is a viable alternative to
the colonial system of governance. Premchand’s awareness, however, is
not limited or constricted to seeing just the benefits of the system. He is
sensitive to the dangers surrounding it too. Already forces of power,
capitalism and flattery are laying siege to a fair and objective working of
the Panchayat. It is another situation altogether that Jumman’s various
preparations are unable to sway the Panchayat members and they give
whatever decision they have to. But we cannot deny the fact that this
fair judgement hinges very precariously on the Sarpanch’s conscience and
sense of responsibility. It is all very well to think that a man becomes
aware of his duties the moment he is placed in a position of responsibility
but we know that such a process of thought, while indicating faith in
humanity on the one hand, is also suggestive of a certain wishful-thinking
on the part of the writer. In both cases of the holding of the Panchayat
the problems are resolved through the suggestion that God Himself was
operating as a spirit in the whole proceeding. But would God have still
spoken had Samjhu Sahu been made the Sarpanch? So the resolution of
the problem is based on an idealistic premise which leaves many
questions unanswered.

 Erosion of Traditional Values

After forty years of Premchand’s ‘Panch Parmeshwar’ came a story by

Rangey Raghav with the same title. In his story however the village
Panchayat has lost its sanctity and its authenticity completely. While in
Premchand’s story Jumman is unable to influence the decision of the
Panch even though he tries, in Raghav’s story we find that with the
steady advancements of capitalism, a man’s worth is measured by his
material gains. Not only can a rich man sway a decision in his favour by
bribing the Panch but in fact decisions are made keeping the status of the
involved people in mind. Justice here is fickle and has lost its meaning. It
is not God now who speaks through the Panch but money. In such a world
truth and justice have become the inevitable casualties of the system.

 Forward Looking
Premchand too was aware of the issues that were already present in the
social landscape. There is the clash of interests between Jumman and his
clients, which hints at the friction present between various social classes.
There is the lure and power of money which makes a man resort to
dishonest means, as in the case of Jumman’s injustice to his old and
helpless aunt. The story carries the dark hint of a possibility that things
might have gone in the opposite direction with the old woman being
robbed of everything. The vile and cunning of the village merchant,
Algu’s hopeless endeavours to get his payment from the Sahu—are all
indicative of the cracks and fissures already present in the apparently
idealized village community. In fact when Premchand brings in an
element of the fable at this point when the second Panchayat is to be
held, he is being quite sarcastic when he shows, that even the birds do
not find anything worth emulating in the behaviour of human beings. Thus
a story which looks deceptively simple carries within it a hint of things to
come. Specific questions may have been resolved—the old aunt gets her
land and Algu gets his money —but what about the larger questions? The
position of the old and infirm in our society, the power of money which
can corrupt easily, the fate of shy and simple people like Algu who more
often than not would end up being exploited, the clash of interests
between rival groups which is only hinted at mildly in the story but which
has assumed alarming proportions in the present day villages in India.
Premchand was therefore a forward-looking writer who was aware of the
gradual breakdown of traditional values taking place in our society. At
the same time at this stage of his writing career the reformist’s zeal
prompts him to present solutions to these problems too and in ‘Panch
Parmeshwar’ that solution is presented in an idealized view of man which
is romantic and visionary.

 Title and Techniques

‘Panch Parmeshwar’ is therefore a very suitable title for the story and
translated as ‘The Holy Panchayat’ it carries within it the mythic
dimension of the justice we see in operation here. The word ‘Panchayat’
makes it obvious that the story is going to be about a village Panchayat
but by the time we come to the end of the story we also understand why
the word ‘Parmeshwar’ or ‘Holy’ has been used in the title. We
understand why the word of the Panch has been likened to the word of
God and the title justifies its relevance completely.
Characterization in the story is effected through description as well as
dialogue and at times through direct authorial interventions that occur
from time to time. For example, when the writer takes a peep into the
mind of Algu while he is torn between being true to his friend or being
true to the larger call of justice. The tone of the story varies from being
mildly ironic to entirely serious; at times merely observing and at other
times being critical and sarcastic about what is being observed. Since the
omniscient author technique is employed the point of view remains that
of the narrator. This third person omniscient narrator has the freedom to
look into the minds of his characters and he acquaints us with their points
of view too at different stages of the narrative.

 Theme of Friendship and Communal Harmony

In ‘Panch Parmeshwar’, Premchand gives us an insight into one other

aspect of India’s social reality. This has a bearing on the relations
between the Hindu and Muslim communities which existed side by side
through most of the social fabric of India, whether towns or villages. By
showing a strong bond of friendship between a Hindu and a Muslim who
share nothing except like-mindedness, mental and emotional affinities,
Premchand is hinting at the vast possibilities that exist for such
friendships to occur despite the many religious, cultural and social
barriers between the two communities. What Premchand seems to be
saying is that Peace is a joint responsibility of both groups. However, it is
a well known fact that the two communities did exist in complete
harmony, side by side but once again there were forces that threatened
this peaceful coexistence from all sides. Misunderstanding can be one big
hurdle. The same is removed in the story though in a highly
sentimentalized manner. Yet the need for a mutual understanding is what
Premchand seems to be stressing on towards the end of the story.
The Case Of The Speluncean Explorers – An Analytical Study

The Case of the Speluncean Explorers – A Study

PROLOGUE

Professor L. Fuller was adept in explaining law through allegory. It is said that there is no better way
to study law than to read cases. There is no better way to study legal philosophy than to see how
various theories clash with each other. The Professor achieved all of these objectives in the brilliantly
imagined case that he invented – The Case of the Speluncean Explorers.

Professor Lon L. Fuller's Case of the Speluncean Explorers is said to be the greatest fictitious legal
case of all time. That is saying a lot, for it has some stiff competition. While its competitors may
outdo it in courtroom drama, character development, or investigative suspense, none matches it in
legal depth or dialectical agility. It doesn't show what makes some lawyer's caseload interesting, but
what makes law itself interesting.[1] His story of Rex is another interesting allegory[2] which speaks
about the characteristics which a law shouldn’t have. The following statement by Fuller in his book
Morality of Law outlines his philosophy:

The only formula that might be called a definition of law offered in these writings is by now
thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules.
Unlike most modern theories of law, this view treats law as an activity and regards a legal system as
the product of a sustained purposive effort.[3]

ABOUT THE AUTHOR

Fuller (1902-78) is a representative of the school of legal thought known as ‘purposive

jurisprudence’[4]. This is a kind of jurisprudence which sees the activities of the courts as reflecting
the very purposes of the law, which turn upon the subjecting of the human conduct to the control of
‘rules’. Law and morality are intertwined and, according to Fuller a law which is completely divorced
from morality, ceases to be law.
Fuller was an American, a Texan to be precise. He served as professor of Law at Harvard University
for many years, and is noted in American law for his contributions to the law of contracts. His debate
with H.L.A. Hart in the Harvard Law Review (Vol. 71) was of significant importance for framing the
modern conflict between legal positivism and natural law. Fuller was an important influence on
Ronald Dworkin, who was one of his students at Harvard Law.[5] He is regarded as one of the
greatest legal philosophers of the 20th century. He had a profound effect on American jurisprudence.

Fuller’s The Morality of Law, first published in 1964, is his most famous and, perhaps, his most
controversial work. At a time when legal positivism still dominated jurisprudence, the suggestion
that law and morality were not only connected but connected intimately was such an affront to
scientific thinking that it brought repeated charges of “axe grinding” from one reviewer.[6]

CASE OF SPELUNCEAN EXPLORERS

This famous fictitious legal case was created by Lon L. Fuller in his article, "The Case of the
Speluncean Explorers," Harvard Law Review, vol. 62, no. 4 (1949) pp. 616-645. The case tells the
story of a group of spelunkers (cave-explorers) in the Commonwealth of Newgarth, trapped in a cave
by a landslide. As they approach the point of starvation, they make radio contact with the rescue
team. Engineers on the team estimate that the rescue will take another 10 days. The men describe
their physical condition to physicians at the rescue camp and ask whether they can survive another
10 days without food. The physicians think this very unlikely. Then the spelunkers ask whether they
could survive another 10 days if they killed and ate a member of their party. The physicians
reluctantly answer that they would. Finally, the men ask whether they ought to hold a lottery to
determine whom to kill and eat. No one at the rescue camp is willing to answer this question. The
men turn off their radio, and some time later hold a lottery, kill the loser, and eat him. When they
are rescued, they are prosecuted for murder, which in Newgarth carries a mandatory death penalty.
Fuller wrote five Supreme Court opinions on the case which explore the facts from the perspectives
of profoundly different legal principles.

The result was a focused and concrete illustration of the range of Anglo-American legal philosophy at
mid-century- THE SPELUNCEAN EXPLORERS CASE.

It is generally believed that Fuller’s case is based on two real cases, namely
Ø U.S. v. Holmes (1842) and

Ø Regina v. Dudley & Stephens (1884).

These two U.S cases can be called as life boat cases in which disaster at sea was followed by
homicide and prosecution. In the Holmes case, the homicides were to lighten a badly overloaded
lifeboat. In Dudley & Stephens, the homicide was to create a meal for the starving survivors.[7]

One can easily see the uncanny similarities between the facts of these two cases and that of Fuller.
Fuller borrowed from these cases for his own: extremities of desperation, lotteries, cannibalism,
popular sympathy for the defendants, politically difficult prosecutions, defenses of stark necessity,
jury convictions and the possibility of pardons. Even small details, like the jury's special verdict in
Dudley & Stephens, comes up again in Fuller's case. But an inventory of these borrowed elements
only brings into relief the extent of Fuller's creativity. He moved the accident from the high seas to a
cave within Newgarth.

In this paper, the parts have been sub-divided as follows:

1. Allegory

2. Opinion of Chief Justice Truepenny.

3. Opinion of Justice Foster.

4. Opinion of Justice Tatting.

5. Opinion of Justice Keen.

6. Opinion of Justice Handy.

7. Conclusion and Findings

PART I: THE ALLEGORY/STORY

Lon L. Fuller’s the case of Speluncean Explorers was first published in 1949 in the Harvard Law
Review.[8] Fuller wrote this story in order to illustrate a number of different theories about the
nature of law and legal reasoning. The various opinions are written by fictional judges who represent
different theories, and thus each opinion illustrates one or more of those theories.

In the case of Speluncean Explorers, Fuller’s lesson is that the law’s basic integrity is to be found
within the very processes which are utilized ‘in the attainment of its proclaimed goals’. When Lon
Fuller had put together his Speluncean Explorers hypothetical in the 1949, there were only two
significant jurisprudential philosophies in the air: natural law and positivism. The former had largely
been discredited, but was revived in the hypothetical by Justice Foster[9], who claimed that the
trapped explorers were in a moral, if not geographical "state of nature."

This case is set in a mythical future, 4300 A.D. Fuller did not choose the date in random, he
estimated that in 1949[10], ‘the centuries which separate us from the year 4300 are roughly equal to
those that have passed since the Age of Pericles. The case is heard in the Court of General Instances
of the County of Stowfield in the Commonwealth of Newgarth, which has a charter of government
drawn up originally by the survivors of a past catastrophe (the Great Spiral). The case is based on a
statute N.C.S.A (N.S.) which states in specific terms in Section 12-A that ‘whoever lawfully takes the
life of another shall be punished by death.’

The facts of the case are outlined as follows:

The four defendants and Roger Whetmore were members of a Speluncean Society in the
Commonwealth of Newgarth. This society encouraged the exploration of caves. Early in May of 4299
they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the
interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth.[11]
While exploring the cave, when they were in a position remote from the mouth of the cave, a
landslide occurred. Heavy boulders fell in such a manner as to block completely the only known
opening to the cave, and therefore, they were all trapped within the cavern. The five men were
carrying scant resources with them. On their non-return the families of the explorers informed the
Society which in turn informed the State. A rescue party was promptly dispatched for their rescue. In
the rescue operations, 10 workmen lost their lives in fresh landslides. A great expense was also
incurred to rescue the trapped men.

It was found that one of the explorers has a portable radio set capable of sending and receiving
messages. Therefore, contact was established by the rescue team with the trapped men. The five
trapped men, after learning that it would be at least ten more days until they were rescued, sought a
professional medical opinion as to whether or not they could possibly survive this duration. Upon
being informed that they would not, they deliberated for eight hours after which they sought
counsel first from the physician, then from a government official, and finally from a minister as to
whether or not it would be advisable to cast lots and kill and consume one of their members so that
the others may survive. None of the three parties were willing to answer. None of them answered in
the affirmative or negative. With their question unanswered, the men severed radio contact with
the people outside.

On their eventual release, it became apparent that some twenty three days after their entry into the
cave, the defendants had killed and eaten Whetmore. In evidence, it was indicated that Whetmore
had suggested that the group’s survival would be impossible without nutrient, and that this would
necessitate the eating of flesh of a member of the group. It was also said that Whetmore himself had
suggested the casting of lots by dice to choose such unfortunate member. However, Whetmore after
reflection withdrew from the offer terming it frightful and odious. He was accused by the defendants
of breach of faith and they proceeded to cast dice. Whetmore also declared that he had no objection
to one of the defendants casting the dice on his behalf. The throw of the dice was unfortunately
against Whetmore. The other group members therefore killed him after which they ate his flesh.

After the defendants had been rescued from the cave and their suitable treatment, they were
indicted for the murder of Whetmore in the Court of General Instances, the County of Stowfield. The
court found all of them guilty and were sentenced to death by hanging.

Following the discharge of the jury, its members joined in communicating with the state’s Chief
Executive and requesting that the death sentence be commuted to imprisonment for a period of six
months. Similar action was taken by the Trial judge. The defendants brought a petition of error to
the Supreme Court of Newgarth. The court issued its opinions in the year 4300.

In the trial that ensued, the five judge bench gave differing opinions and profoundly different ratios
for the same. Fuller wrote these five opinions as representing different schools of thought.

PART II OPINION OF CHIEF JUSTICE TRUEPENNY

In his argument Chief Justice Truepenny[12] after stating the facts as mentioned in Part I of this
paper ruled in favour for strictly applying the letter of the law rather than interpreting the law.
According to him the jury and the trial judge followed a course that was not only fair and wise, but
the only course that was open to them under the law. He however also proposed to his colleagues
that they follow the example of the jury and trial judge by joining in the communications they have
addressed to the Chief Executive of the State for clemency for the defendants.

Chief justice Truepenny appears to be an Advocate of Textualism or Institutionalism. He represented

the Positivist[13] perspective. According to this school law should be given a literal interpretation.
Law is what it is rather than what it ought to be. That is, it is free from moral considerations once it is
enacted by a sovereign authority.

VERDICT: He affirmed the decision of the trial court but however requested clemency also.

ANALYSIS

The main thrust of this argument presented by Chief Justice Truepenny is that the statue under
scrutiny is not ambiguous and is plainly stated for applying the law rather than interpreting the law.
And, as the statue states, “Whoever shall willfully take the life of another shall be punished by
death”, he said the defendants should be hanged till death. However, Truepenny’s argument has
much strength which, at face value, can be applied to this case in question. Arguably, first, the
language of the statue applies directly to what the defendants did to Roger Whetmore. Therefore,
there is no argument not to punish defendants following the existing law. Also, there is no question
into the matter that the men on trial “willfully” took the life of Whetmore. It is an admitted fat that
they did.

However, there is another aspect of this peculiar case. As has been stated in the testimony of the
defendants that Whetmore was in concurrence with the decision to cast lots to determine his own
fate. Now, therefore, the question is, does all accountability of Roger Whetmore’s death reside in
the defendants alone, or should Whetmore be held partly responsible as well for the crime.

Therefore, it is submitted here that it would be impractical to merely apply the statue on the
grounds of the text and ignoring the basic foundation of why law has become law. There should be
utilization of prudence in decision of cases and each case should be decided on its merits. What law
requires is intelligent obedience, not idiotic adherence.

To conclude, Chief Justice Truepenny's legal analysis was short. He recommended a plea for
clemency to the Chief Executive because he felt the statute was clearly against the conspirators.
But there is no reflection or consideration of the statute itself; it is assumed to speak against the
defendants. The appeal for clemency seemed as an abandonment of the judicial role, a sort of "cop
out," or an admission that the legal system was not really able to handle the complexities of the
issue.

OPINION OF JUSTICE FOSTER

Judge Foster it is said represents the alter-ego of Fuller. He represents the natural school[14] of
jurisprudence. His opinion is the best written one of the five.

Justice Foster expressed shock at hearing of Chief Justice Truepenny’s opinion. He argued that the
Law of the Commonwealth is at stake if we try to textually apply the law in this case. According to
him, the defendants when trapped in the cave were outside the jurisdiction of Commonwealth of
Newgarth.

VERDICT: In his verdict, he set aside the verdict of the Trial court and held that purposive
construction should be given to the statutes.

ANALYSIS

Justice Foster did not believe that the law compels the monstrous conclusion that the defendants
were murderers. On the contrary, he said it declares them to be innocent of any crime. He rested
this conclusion on two independent grounds. He said the defendants are not guilty on both of these
grounds independently of each other.

The first of these grounds is that the enacted or positive law of this Commonwealth, including all of
its statutes and precedents, is governed instead by what ancient writers in Europe and America
called "the law of nature." When a situation arises in which the coexistence of men becomes
impossible, then a condition that underlies all of judicial precedents and statutes has ceased to exist.
He says, when that condition disappears, then the force of our positive law disappears with it. It is
similar to a situation in which a crime is committed outside the territorial jurisdiction of the State.
This has the consequences that the law applicable to them is not the enacted and established law of
this commonwealth, but the law derived from those principles that were appropriate to their
condition. He therefore said applying this principle the defendants were not guilty of any crime.
He says that positive law is inherently territorial. Therefore, when a person is outside its scope, the
rules of law would not apply to him. Applying this principle in the instant case, he says that the
defendants were separated from the State by rock walls. Within them the State was not even able to
supply them with succour. He adds that the State was created by a social contract to provide peace,
order and succour to all.

The second ground that he takes is that one of the most ancient bits of legal wisdom is the saying
that a man may break the letter of the law without breaking the law itself. According to him every
proposition of positive law should be interpreted reasonably, in the light of its evident purpose. In
the judgment, Judge Foster says – “Centuries ago it was established that a killing in self defense is
excused. There is nothing in the wording of the statute that suggests this exception. But the
exception in favor of self-defense is not out of the words of the statute, but out of its purpose. When
the rationale of the excuse of self-defense is thus explained, it becomes apparent that precisely the
same reasoning is applicable to the case at bar.” That is, he argues that self-preservation is the most
basic of all human tendencies. In the instant case, the defendants did not kill Whetmore out of mala
fides but because they wanted to give succour to their starving bodies. Therefore, this was a killing in
self defence.

He further sites the case[15] of Commonwealth v. Staymore wherein it was held that a person
cannot be held guilty for anything which was beyond his control. It is here submitted that arguably,
when a man made law is enacted or enforced, there is always a reason why the law was constructed
in the first place. And therefore, law should be construed within its purpose.

Further, he adds that if the State could sacrifice 10 lives to save one, why cannot one life be
sacrificed to save four.

To conclude, Justice Foster based his justification on the following. He says when we consider a case
which has taken place a mile beyond territorial limits of a state; no one would pretend that the law
of the state would be applicable to the case. This means that law is not absolute, and that the
positive law is predicated on the possibility of men's coexistence in society. When a situation arises
in which the coexistence of men becomes impossible, then a condition that underlies all of our
precedents and statutes ceases to exist. When that condition disappears that the force of our
positive law disappears with it, then the law of nature works. Self-defense is a right not out of the
words of a penal statute (like the one in this case), but out of its purpose. Even though there is
nothing in the wording of the statute that suggests self-defense, the exception of self-defense is
accepted.

OPINION OF JUSTICE TATTING.

Judge Tatting had a complete opposite view of that of Judge Foster. He said he cannot accept any of
the latter’s opinions, more so the first part of it. According to Tatting J. law of contract cannot be
more powerful than law of murder. Secondly he asked a very fundamental question – when exactly
did the 5-member company move from a ‘state of civil society’ to a ‘state of nature’. Was it when
the party entered the cave, or when the landslide occurred or when the party crossed the threshold
of starvation? Further, he asked the Supreme Court of Newgarth was created out of a positive law.
From where does the court arrive its authority to decide a dispute on law of nature rather than law
of the State?

Verdict: He withdrew from the case.

ANALYSIS

Tatting J. also represented the positivist school.

Tatting J. argues that it is true that a statute should be applied in the light of its purpose, and that
one of the purposes of criminal legislation is recognized to be deterrence. The difficulty is that other
purposes are also ascribed to the law of crimes. It has been said that one of its objects is to provide
an orderly outlet for the instinctive human demand for retribution. He also argued that law of
retribution is equally important if not more than law of deterrence[16] in criminal law. He quoted
the case of Commonwealth v. Scape wherein it was held that the one of the objects of law is also to
provide outlet for retribution. It has also been said that its object is the rehabilitation of the
wrongdoer as in Commonwealth v. Makeover.

He also said that the there is no doubt that the defendants have committed murder. Citing
Commonwealth v. Valjean[17], he said if a person cannot be pardoned for stealing a loaf of bread,
how can one be forgiven for killing a person out of starvation.[18] Further, he says assuming that we
must interpret a statue in the light of its purpose, what are we to do when it has many purposes or
when its purposes are disputed? The familiar explanation for the excuse of self-defense cannot be
applied by analogy to the facts of this case. These men acted not only "willfully" but also with great
deliberation and after hours of discussion what they should do.
He however gave credence to Foster J. for his theory of purposive construction of a statute. He
added that it is a matter of regret that the Prosecutor saw fit to ask for an indictment of murder. If
we had a provision in our statutes making it a crime to eat human flesh, that would have been a
more appropriate charge. If no other charge suited to the facts of this case could be brought against
the defendants, it would have been wiser not to have indicted them at all.

Further, it seems from the allegory that Judge Tatting believed in the power of judicial precedents.
He was confused as to what effect this precedent [19] would have on future cases before the courts.

Since He was wholly unable to resolve the doubts that beset him about the law of this case, He
declared his withdrawal from the case

From the allegory, it can be said that Judge Tatting ultimately withdrew from the case because of
the overwhelming dissonance he felt after thinking through the issues. He disagreed with Foster on
the state of nature issue, but he agreed with Foster that there is precedential value in his theory of
self-defense. He however, did not see statutes as having just one purpose, and according to him
there are other explanations of self-defense stressing the importance of "non-willful" conduct. But
the conspirators acted "willfully." And that is the reason for his confusion. He sees that both
perspectives (acquittal and conviction) have equally strong arguments and he cannot decide.

OPINION OF JUSTICE KEEN

At the outset of his opinion, Judge Keen says Executive clemency is a question for the Chief
Executive, not for the judges to direct the Chief Executive. He therefore disapproved of that passage
in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to
what he should do in this case.

He said while deciding whether what these men did was "right" or “wrong" "wicked" or "good’ is not
for a judge to decide. He should not apply his conceptions of morality, but the law of the land. The
sole question before us, therefore, he said, for decision is whether these defendants did, within the
meaning of N.C.S. A. (N.S.) § 12-A, willfully take the life of Roger Whetmore. On this count, any
candid observer would concede at once that these defendants did "willfully take the life" of Roger
Whetmore. He then proceeded to acknowledge that hard decisions are never popular, but that hard
decision may even have a certain moral value by bringing home to the people their own
responsibilities toward the law that is ultimately their creation and by reminding them that there is
no principle of personal grace that can relieve the mistakes of their representatives, i.e. the
legislators.
VERDICT: He found the defendants guilty.

ANALYSIS

Keen J too belonged to the positivist school. He appears to be an advocate of Textualism. He

stressed that asking for executive clemency is improper for judges, although they may do so in their
capacity as private citizens. He said that the major problem in the case is the failure of others to
separate law and morality. Once this is done, one realizes that statutes are not necessarily
embodiments of moral thoughts and a decision is much easier.

He said there was a time in the Commonwealth when the judges did in fact legislate very freely. But
we now have a clear-cut principle, which is the supremacy of the legislative branch of our
government. From that principle flows the obligation of the judiciary to enforce faithfully the written
law in accordance with its plain meaning without reference to our personal desires or our individual
conceptions of justice. Here, he outlines the principle of strict adherence to separation of powers of
the three chief organs of government.

Then, he goes into the history of the community, stressing that judicial activism or indeterminacy of
interpretation actually was a factor in precipitating a civil war.[20] He also declines to accept the
theory that there is only one purpose for a statute. It really is impossible for a judge to divine
legislative "purpose." Finally, a hard and harsh decision here is probably good, for it forces the
legislature to reconsider the statute. He says it is for the people to remind the Legislature of his
mistake and not for the judiciary. The scope of the exception in favor of self-defense as it has been
applied by the Court is plain: it applies to cases of resisting an aggressive threat to the party's own
life. It is therefore too clear for argument that this case does not fall within the scope of the
exception, since it is plain that Whetmore made no threat against the lives of these defendants

To conclude, it can be said that according to him a law in the form of a law can be enforced if it is a
good law or a bad one. And lawyer should think of the letter of the law not personal moral. And the
process of the judicial reform requires steps on the part of the Legislature/executive.

OPINION OF JUSTICE HANDY.

Justice Handy believed that law should be what the public wants. He disproved of what he called his
colleagues' ability to throw an obscuring curtain of legalisms about every issue presented to them
for decision. Judges should not go into positivism or natural law, right or wrong. According to him,
since by a poll it was said that the majority populace wanted the defendants to be let off with a
token punishment, the judges should comply with this popular opinion.
According to him government is a human affair, and that men are ruled, not by words on paper or by
abstract theories, but by other men. They are ruled well when their rulers understand the feelings
and conceptions of the masses. They are ruled badly when that understanding is lacking. Judges
need to be in tune with popular opinion. He disapproved of the practice of the courts. He observed-
“Lawyers are hired by both sides to analyze and dissect. Judges and attorneys vie with one another
to see who can discover the greatest number of difficulties and distinctions in a single set of facts.
Each side tries to find cases, real or imagined, that will embarrass the demonstrations of the other
side. To escape this embarrassment, still further distinctions are invented and imported into the
situation. When a set of facts has been subjected to this kind of treatment for a sufficient time, all
the life and juice have gone out of it and we have left a handful of dust.”

According to him, the case before the court was a question of practical wisdom, to be exercised in
context, not of abstract theory, but of human realities. He said the most obvious advantage of
treating forms and abstract concepts as instruments is that it permits one to go about one’s daily
tasks with efficiency and common sense. When these conceptions are applied to the case before the
courts, decision becomes perfectly easy. He further added that this case has aroused enormous
public interest. In one widely read newspaper chain’s poll, on the question, "what do you think the
Supreme Court should do with the Speluncean explorer?” about 90% expressed a belief that the
defendants should be pardoned or let off with a kind of token punishment. It is perfectly clear, then,
how the public feels about the case. And this is the decision the judges should give.”

VERDICT: He set aside the verdict and said that the court should follow public opinion.

ANALYSIS

Judge Handy is the judge of practical/popular wisdom.[21] In the allegory, he echoed the views of
sociological school of jurisprudence. Practical wisdom is a significant category for Aristotle in his
Nicomachean Ethics and refers to the skill needed in life to deliberate and reach decisions (in
contrast to theoretical knowledge or practical skill).[22] This judge is very solicitous of public
opinion, believing that the legitimacy of the judicial enterprise is because it reflects the will of the
people. This aspect has practical implications in our media-driven society. Many a times we see that
popular media has had an effect on judges.[23] Further, trial by media has been an issue of hot
debate in legal as well as popular circles since some time now.
 This was the last of the five opinions. The Supreme Court being equally divided, the conviction and
the sentence of the Court of General Instances was affirmed. The defendants were ordered to be
hanged.

CONCLUSION AND FINDINGS

Fuller’s case looks at separation of powers issue (through the notion of recommending clemency to
the Chief Executive), natural law theory, positivism, statutory interpretation (whether there are
"gaps" in statutes and how to "fill" them), the purpose(s) of statutes, the role of precedents and how
to use them, the relationship of law and morality, judging as the manifestation of practical reason,
various theories of self-defense. All in all it deals with almost all the issues that could be
contemplated in mid-20th century.

As said earlier, it is widely believed that Fuller based his case on two real cases. A brief gist of the
cases is produced below for the benefit of the reader.

U.S. vs. Holmes (1842)[24]

FACTS: In 1841, the U.S. immigrant ship William Brown sailing from Liverpool to Philadelphia, sank
after hitting an iceberg. 42 people, including the mate and several sailors, found themselves on one
of the life boats; after a day or so it began to spring leaks and was sinking. Crewmen, including the
defendant Alexander William Holmes, believed that their overloaded lifeboat was in danger of itself
sinking and put 14 or 16 passengers overboard to their inevitable deaths in the frigid water. On his
return to Philadelphia, Holmes was arrested and charged with murder. However, the grand jury
rejected the indictment and substituted manslaughter. The judge in the United States circuit court
for the Eastern District of Pennsylvania instructed the jury that necessity might be a complete
defence but that "before the protection of the law of necessity can be invoked, a case of necessity
must exist, the slayer must be faultless, he must owe no duty to the victim." The jury convicted
Holmes and the principle of necessity was not tested by any higher court.

· Holmes was found guilty and sentenced to six months in prison and a fine of $20; he served the time
but did not have to pay the fine, because he was eventually pardoned by President John Tyler.

Regina vs. Dudley & Stephens (1884)[25]

There was another case in 1884 (Queen v. Dudley) which resembles the Speluncean Case even more
closely, insofar as it too involved cannibalism, albeit cannibalism on the high seas. The facts of the
case are as follows:
· A yacht sailing from Essex, England to Sydney, Australia sank, leaving four crew members in a 13-foot
lifeboat: the captain (Dudley) and the mate (Stephens), and two seamen, Brooks and Parker. Parker
was 17 years old and already weak. After several days without food and water, Dudley suggested to
Stephens that they conduct a lottery to choose one person to be killed and eaten by the others.
Stephens refused. Later Dudley convinced Stephens that they should kill Parker, who was already ill
and without family, and eat him. They did so and consumed about half of Parker over the next few
days, at which point they were rescued by a German Boat. The boat put in at Falmouth, England on
its way back to Germany. There the men were charged with murder. The public was on the side of
the defendants, so the judge asked the jury for a special verdict: not a finding of guilt or innocence,
but simply a finding on the facts.

· Based on the facts found by the jury, the judge found the men guilty and sentenced them to hang.
They were pardoned by Queen Victoria.

As said earlier, when Lon Fuller had put together his Speluncean Explorers hypothetical in the 1940s,
there really were only two significant jurisprudential philosophies in the air: natural law and
positivism. The former had largely been discredited, but was revived in the hypothetical by Justice
Foster, who claimed that the trapped explorers were in a moral, if not geographical "state of
nature." It seems that Fuller included a natural law argument in the hypothetical was that the one of
the underlying real cases was US v. Holmes, where the defendant's attorneys unsuccessfully tried to
argue such a defense for Holmes. Positivism, the other theory, was all the rage in the 1940s.
Positivism is a "big umbrella" word, which covers all things from the utilitarianism of Jeremy
Bentham to any effort that wants to separate law from morality. Justice Keen is the exponent of
positivism in the hypothetical.

Through this allegory, Fuller is seeking consideration of the purposes for which law exists. The
varying nature of judgements of the Supreme Court are used to illustrate a variety of approaches to
law. The opinion of the Chief Justice seems to be based upon a belief in the significance of executive
clemency in appeals against conviction and sentence. Foster J (who accepts Fuller’s own views)
draws attention to the importance of the spirit of the law rather than the letter. Tatting J. evades
responsibility by declaring his inability to reach a decision. Keen J. follows the philosophy of
positivism in separating matters of law and morality. Handy J. advocates a decision which he
believes to be administratively convenient and popular.
Through the decision of Foster J., Fuller affirms his belief in the need for intertwining of law, morality
and reason in deciding legal questions. Each strand of the process is necessary. Positivism provides a
distorted view of law, which is seen as a ‘one-way projection of authority’ – the law is set out and it
is the duty of the citizen to obey its letter.

Fuller’s own postscript to the case is of particular significance. The case, he notes, was constructed
for the sole purpose of bringing into a common focus certain divergent philosophies of law and
government, philosophies which have existed since the time of the ancient Greeks. Even after we
have sought solutions to the problems raised in earlier times, the debates will continue. He ends
with saying that if there is any element of prediction in the case, it does not go beyond a suggestion
that the questions raised here are permanent questions before the human race. This statement, it is
submitted here is particularly true. Debates on judicial accountability, judicial activism, separation of
powers, role of media, retributive theory of punishment v. reformative theory of punishment are still
constant topics of debate and discussions even after 60 years of this allegory. And it seems unlikely
that these debates will be settled soon.

It is also pertinent to mention here that D'Amato's "Further Proceedings,”[26] added further
proceedings. The author in his article imagines that the decision of the Court was given over to a
Committee of three professors’ for review. His article deals with the opinion of these professors. It
would not be wrong to mention here the reasons for the article as mentioned by the author himself
in its first paragraph

“……………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. 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.”
A Jury of Her Peers by Susan Glaspell

In A Jury of Her Peers by Susan Glaspell we have the theme of connection, inequality,
independence, control and oppression. Taken from her collection of the same name the story
is narrated in the third person by an unnamed narrator and after reading the story the reader
realises that Glaspell may be exploring the theme of connection. On several occasions the
reader notices that both Mrs Hale and Mrs Peters are able to make a connection with Minnie
Foster. Mrs Hale, when seeing the unfinished housework in Minnie’s home is reminded of
her own unfinished housework. Likewise when Mrs Peters remembers the incident of the
young boy killing her cat (when Mrs Peters was a child) it brings her closer to understanding
why Minnie may have killed John Wright. These connections are significant as it is through
them that both Mrs Hale and Mrs Peters start to not only understand Minnie a little better but
they also begin to feel sympathetic towards Minnie. In many ways both Mrs Hale and Mrs
Peters connection with Minnie is stronger than any connection that they have with their
husbands. Something that is more noticeable at the end of the story when rather than showing
their husbands the dead canary, which would provide Henderson with the motive he is
looking for (as to why Minnie killed Wright), they hide the canary ensuring or strengthening
Minnie’s chances of being found not guilty of killing Wright.

What is also interesting about the story is the inequality that appears to exist between Mrs
Hale, Mrs Peters and all three men in the story. At no stage is either woman taken seriously
by any of the men. If anything each man, at different stages of the story, makes fun of (or
belittles) both women considering any input that they may have into why Minnie may have
killed Wright to be insignificant. This may be important as by introducing a sense of
inequality into the story Glaspell may also be highlighting the inequality that existed between
men and women at the time the story was published (1917) with many women being treated
as inferior to men in a mainly male dominated society.

Glaspell also appears to be exploring the theme of independence. Through Mrs Hale the
reader discovers that Minnie lived her life, prior to marrying Wright, as she would have liked
to have lived it. She was part of the community (singing in the choir) and seems to have
enjoyed her life or at least in Mrs Hale’s eyes appears to have been happy. However after
marrying Wright, Minnie seems to have isolated herself from the community or at least lost
her own individual voice (something that is more apparent by the fact that Minnie stops
singing with the choir). It is possible that Glaspell is suggesting, again at the time the story
was published, that many women after they had gotten married were no longer free to live
their lives as they would have liked to. If anything they may have lost the independence that
they once had, prior to getting married. No longer being in control of their own lives but
rather having to live their lives being controlled by their husbands, which appears to be the
case for Minnie. The fact that Henderson when talking to Mrs Peters tells her that ‘a sheriff’s
wife is married to the law’ may also be important as by introducing this line to the story
Glaspell may also be suggesting (again at the time the story was published) that many women
were not free to think for themselves or be independent of their husbands.

There is also some symbolism in the story which may be significant. The canary in many
ways mirrors Minnie’s life. Just as a canary would sing, likewise the reader is aware that
before marrying Wright, Minnie also liked to sing in the local choir. It is also possible that by
introducing the canary’s cage to the story Glaspell is also suggesting that after marrying
Wright, Minnie likewise has also been caged (or trapped) within her marriage. The fact that
the canary is found dead may also be symbolically important as it may be a case that Glaspell
is suggesting that Minnie too has had her spirit killed (or broken) throughout her marriage to
Wright. The quilt may also be important. Symbolically it can be seen to represent Minnie’s
life and the fact that there is one piece badly sewn may suggest that all was not right in
Minnie’s life. Something that is clear to both Mrs Hale and Mrs Peters.

The ending of the story is also interesting as it not only serves to highlight the connection that
both Mrs Hale and Mrs Peters have with Minnie but it also highlights the strong bond that
exists between all three women, which appears to be stronger than any bond that either Mrs
Hale or Mrs Peters have with their husbands. By hiding the canary Mrs Hale and Mrs Peters
are also going against their husbands (or at least defying them) which may be the point that
Glaspell is trying to make. It is possible that Glaspell is suggesting that women (again at the
time the story was written) should unite and take a stand against a male dominated
society. There is also a sense of irony that it is through Mrs Hale and Mrs Peters investigation
rather than through Mr Peters and Henderson’s investigation that the reader discovers the
reason as to why Minnie may have killed Wright. If anything, throughout the story both men
appear to be going around in circles ignoring or at least not noticing how unhappy Minnie
may have been in her marriage and at the same time not taking any input that either Mrs Hale
or Mrs Peters have seriously.
A Jury of Her Peers Summary

The story begins with Martha Hale’s hasty departure from her farmhouse kitchen. She looks
around, hating to leave her workspace in disarray, but her husband impatiently tells her to
hurry. Mrs. Hale joins the group of people in the buggy outside. The party includes: the
county attorney, George Henderson, the local sheriff, Henry Peters, his wife, Mrs. Peters, and
Mrs. Hale’s husband, Lewis Hale. The small group arrives at a neighboring farmhouse and
enters the kitchen. Mrs. Hale reflects that she has never set foot in the farmhouse, but wishes
she had called on the inhabitants: John Wright and Minnie Wright. Mrs. Hale knew Minnie
Wright as a young woman, but she has been caught up in her own busy life, and has not made
the effort to visit Minnie in the past twenty years.

George Henderson calls upon Mr. Hale to tell his story of the events of the previous day at
the farmhouse. Mrs. Hale looks on nervously as her husband speaks, aware of his tendency to
mix up stories or to share unnecessary information. She reflects that this could make things
worse for Minnie. Mr. Hale explains how he was driving by the Wrights’ farmhouse the
previous day when he stopped to call on his neighbor. He had hop

ed to install a party line telephone for both their houses, but Wright hadn’t been interested,
and Mr. Hale decided to try asking him in front of his wife. Although, Mr. Hale reflects, he
doesn’t know that his wife’s opinion would have made much difference to John Wright. Mr.
Hale entered the house to find Minnie Wright in her rocking chair. He asked after her
husband and she calmly told him that he was there, but Mr. Hale couldn’t speak with him
because he was dead. Mr. Hale went upstairs and found John Wright’s body in his bed. He
has been strangled to death. Minnie Wright said she did not wake up, although she slept next
to him, when this murder occurred.Minnie Wright was then arrested and taken to jail. She is
being held while the county attorney and the local sheriff

search her home for any clues regarding the murder. They are particularly looking for any
evidence that would point to a motive for the crime. The men dismiss the items in the kitchen
as womanly concerns that will not provide any evidence. But before they move upstairs to
examine the scene of the crime, Minnie Wright’s ruined canning jars of fruit are discovered.
The recently completed canning project has been ruined by the cold weather because the
contents have frozen and the jars burst open. Mrs. Peters says that Minnie had been worrying
about just this possibility. Henry Peters immediately laughs, joking about a woman who
could be so worried about something trivial when faced with a charge of murder. Mr. Hale
acknowledges, “women are used to worrying over trifles.” Mr. Henderson criticizes Minnie’s
messy kitchen and poor housekeeping, and Mrs. Hale immediately defends Minnie,
reminding the attorney of how much work there is to be done around a farmhouse.

George Henderson gives Mrs. Peters permission to take some clothes and things to Minnie in
jail. He tells her to keep an eye out for any evidence, and Mr. Hale immediately questions
whether the women would know a piece of evidence if they found one. Once the men go
upstairs, Martha Hale expresses her unhappiness that they would criticize Minnie’s kitchen in
her absence. Mrs. Peters says that the men are just doing their duty in coming into the space
and searching for evidence. The women gather together the items they will bring to Minnie
and they notice the poor quality of her clothes, which reveals her husband’s stinginess. Mrs.
Hale suddenly asks Mrs. Peters if she thinks that Minnie is guilty, and the two women discuss
the strange manner of John Wright’s death. Mrs. Hale shares that Mr. Hale said there was a
gun in the house, and yet this was overlooked in favor of the more brutal act of strangling
John Wright.

The women discover an in-progress quilt, and as the men return downstairs they overhear
Mrs. Hale wondering whether Minnie was planning to finish the quilt by the regular
technique or by knotting it. The men again laugh at the women’s trivial interests. The men
then leave to go out to the barn. As Mrs. Peters and Martha Hale examine the quilt, they
observe an area of the stitching that is messy and crooked, unlike the rest. They suppose that
Minnie was anxious or tired or otherwise upset when she was sewing.

As they collect the items to take to Minnie, the two women comment on an empty birdcage
they find. The birdcage is notable for its broken door. Martha Hale expresses her concerns
about not having visited Minnie in twenty years because she was aware of John Wright’s
unsocial and stern character. She imagines the lonely life Minnie must have had with John
Wright. The women look for Minnie’s quilting materials, open a red box, and are instantly
repulsed by the smell from inside: it is a dead bird, its neck twisted to one side as if strangled.

The men reenter suddenly and Martha Hale conceals the box the women have just
discovered. After the men leave, Mrs. Peters and Martha Hale reflect on stillness and
loneliness. Mrs. Peters recalls a traumatic childhood memory of a neighboring boy who killed
her pet kitten. Mrs. Peters acknowledges that she wished to hurt this boy in that instant.
Martha Hale’s reflections are self-critical. She repeats how much she wishes she had visited
Minnie and speaks of her own actions as a crime that went unpunished.

The men wrap up their investigation with no evidence to point to a motive. George
Henderson starts to look through the things Mrs. Peters is taking to Minnie at the jail, but
then stops, laughing that the things are only harmless, womanly things. Hidden among these
things is the box with the dead bird inside. The men have failed in their search for evidence,
but at least, George Henderson jokes, they found out about Minnie’s quilting project. He asks
Martha Hale to remind him what the term was for how Minnie might finish her quilt, and
Mrs. Hale replies, with certainty, that Minnie Wright was going to “knot it
Crime and Punishment
Theme analysis

The story begins like a murder mystery, in which evidence is sought to convict a culprit. A
murder mystery examines a crime, which, when the criminal is caught, is appropriately
answered with a punishment. However, in this story, the ideas about what constitutes a crime
and how a punishment can or cannot account for a crime are made more complicated. The
jury of Minnie Wright’s peers—Mrs. Peters and Martha Hale—judges her to have been
justified in her “crime.” Mrs. Peters and Martha Hale conceal the dead bird because they do
not believe the legal system will be able to adequately judge and punish the “crime” that was
committed. In their eyes, this was not a murder, not the crime one might assume based on that
word, but instead was Minnie Foster’s only option given the long standing oppression and
isolation she was forced into by her husband and by the social and economic subjugation that
defines all the characters’ lives. The women are able to recognize that Minnie Foster’s
situation is a special case because, as women, they have experienced these same crimes
committed against themselves. Martha Hale says, “we all go through the same things—it’s all
just a different kind of the same thing.”

Martha Hale further recognizes that many actions can be crimes that are not acknowledged by
a legal system. Therefore, these crimes go unpunished. When she feels guilty for not havi

ng visited and assisted Minnie Wright for the last twenty years, she asks, “who’s going to
punish that?” While Martha directs this question at herself, her quote also subtly points out
that the many crimes of the men in the play also go unpunished because the legal system is
blind to the crimes that arise from a system of gender-based oppression and injustice.

Male Obliviousness to Women’s Importance

Theme analysis

While society and individual men oppress women throughout this short story, another theme
in the text is the unexpected power the women have within the domestic sphere. This power
is unexpected because the male characters repeatedly overlook the potential of the “trifles”
that concern women. Ironically, the two women discover the evidence the men seek among
the domestic items that the men dismiss. The men are unable to see the importance of the
domestic sphere because they are unable to see the importance and intelligence of the women
in their lives. By placing the solution to the murder mystery within the domestic sphere,
Glaspell empowers the women with the very information the men unsuccessfully seek.The
male characters are oblivious to the domestic sphere because they take for granted their own
self-importance. A society with distinct gender roles that oppresses women has also taught
men to value and trust their own opinions and minds without question. The men cannot
recognize their need to consider the potential, or the threat, of the women near them, as when
the county attorney assumes that anything Mrs. Peters would take to Minnie Wright must
necessarily be harmless, simply because she’s a woman.