Is it legally and morally justifiable to kill and eat a human being in order to save one's life? (As decided in Speluncean Explorers case).

Preliminary

Killing is an act of causing death to another person, a term “kill” in law is called “murder”. Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human being with malice aforethought. This state of mind may, depending upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter. Manslaughter is a killing committed in the absence of malice, brought about by reasonable provocation. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness. Most societies consider murder to be an extremely serious crime, and thus believe that the person charged should receive harsh punishments for the purposes of retribution, deterrence, rehabilitation, or incapacitation. In most countries, a person convicted of murder generally faces a long-term prison sentence, possibly a life sentence; and in a few, the death penalty may be imposed. 

A meaning of a term murder contain a number of elements include Unlawful killing, through criminal act or omission, of a human, by another human, with malice aforethought. For a person to be charged and convicted under a charge of murder those elements must appear in the act he/she did. “The Unlawful” this distinguishes murder from killings that are done within the boundaries of law, such as capital punishment, justified self-defense, or the killing of enemy combatants by lawful combatants as well as causing collateral damage to non-combatants during a war. “Сriminal act or omission” means killing can be committed by an act or an omission. “Of a human” this element presents the issue of when life begins. At common law, a fetus was not a human being. Life began when the fetus passed through the vagina and took its first breath. “By another human” in early common law, suicide was considered murder. The requirement that the person killed be someone other than the perpetrator excluded suicide from the definition of murder. “With malice aforethought” originally malice aforethought carried its everyday meaning a deliberate and premeditated (prior intent) killing of another motivated by ill will. Murder necessarily required that an appreciable time pass between the formation and execution of the intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual premeditation and deliberation as well as true malice. All that was required for malice aforethought to exist is that the perpetrator act with one of the four states of mind that constitutes "malice".

Section 196, provide that, “Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder”. The definition contain all elements which globally acceptable to constitute a complete murder. In United Republic of Tanzania, murder is an offence punishable by the law, if a person found guilty of this offence he/she may be imprisoned for life or suffer death by hanging as provided under section 197 of Penal Code. Not all killings can be termed to be murder there are some exceptions to murder. People like police officers may cause death in their activities, police may battle with armed criminals and kill them, this is not murder because it is a justified killings. Also in The Constitution of United Republic of Tanzania under Article 18, in case of self defense or protection of somebody’s property or life a person may cause death of another person if that person was a threat. But this right must be used in accordance to the law without using excessive force which is not necessary in exercising this right.

Justified or lawful killings (justifiable homicides) are "no fault" homicides. They ordinarily involve the death of someone under circumstances of necessity or duty (commanded or authorized by law). They are characterized by a lack of criminal intent and the person found to have committed a justifiable homicide is freed. They are distinguished from crimes of passion, which involves a lessening of the charge or sentence. Justifiable homicide is not a crime. Defense of property is not by itself a defense against homicide, although a homicide where self-defense became necessary as a result of undertaking defense of property may be justifiable homicide. Examples of justifiable homicide would be self-defense, capital punishment, and police shootings. 

Homicide is also justifiable when committed by any person in any of the following cases; “when resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person” or, 

“when committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein;” or,

 “when committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed”; or, 

“when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace”.

An issue of killing so as to save one’s life was a big topic in law at England, America and other countries worldwide. A person cannot give his/her opinion on this issue without looking or passing through a number of doctrines and concepts includes, natural law, law of nature, positive law (positivism).

Natural law in philosophy is a system of right or justice held to be common to all humans and derived from nature rather than from the rules of society, or positive law. There have been several disagreements over the meaning of natural law and its relation to positive law. Aristotle (384–322 BCE) held that what was “just by nature” was not always the same as what was “just by law,” that there was a natural justice valid everywhere with the same force and “not existing by people’s thinking this or that,” and that appeal could be made to it from positive law. However, he drew his examples of natural law primarily from his observation of the Greeks in their city-states, who subordinated women to men, slaves to citizens, and “barbarians” to Hellenes. In contrast, the Stoics conceived of an entirely egalitarian law of nature in conformity with the logos (reason) inherent in the human mind. Roman jurists paid lip service to this notion, which was reflected in the writings of St. Paul (c. 10–67 CE), who described a law “written in the hearts” of the Gentiles (Romans 2:14–15).

St. Augustine of Hippo (354–430) embraced Paul’s notion and developed the idea of man having lived freely under natural law before his fall and subsequent bondage under sin and positive law. In the 12th century, Gratian, an Italian monk and father of the study of canon law, equated natural law with divine law that is, with the revealed law of the Old and the New Testament, in particular the Christian version of the Golden Rule.

St. Thomas Aquinas (c. 1224/25–1274) propounded an influential systematization, maintaining that, though the eternal law of divine reason is unknowable to us in its perfection as it exists in God’s mind, it is known to us in part not only by revelation but also by the operations of our reason. The law of nature, which is “nothing else than the participation of the eternal law in the rational creature,” thus comprises those precepts that humankind is able to formulate namely, the preservation of one’s own good, the fulfillment of “those inclinations which nature has taught to all animals,” and the pursuit of the knowledge of God. Human law must be the particular application of natural law.

Other scholastic thinkers, including the Franciscan philosophers John Duns Scotus (1266–1308) and William of Ockham (c. 1285–1347/49) and the Spanish theologian Francisco Suárez (1548–1617), emphasized divine will instead of divine reason as the source of law. This “voluntarism” influenced the Roman Catholic jurisprudence of the Counter-Reformation in the 16th and early 17th centuries, but the Thomistic doctrine was later revived and reinforced to become the main philosophical ground for the papal exposition of natural right in the social teaching of Pope Leo XIII (1810–1903) and his successors.

In an epoch-making appeal, Hugo Grotius (1583–1645) claimed that nations were subject to natural law. Whereas his fellow Calvinist Johannes Althusius (1557–1638) had proceeded from theological doctrines of predestination to elaborate his theory of a universally binding law, Grotius insisted on the validity of the natural law “even if we were to suppose…that God does not exist or is not concerned with human affairs.” A few years later Thomas Hobbes (1588–1679), starting from the assumption of a savage “state of nature” in which each man was at war with every other rather than from the “state of innocence” in which man had lived in the biblical Garden of Eden defined the right of nature (jus naturale) to be “the liberty each man hath to use his own power for the preservation of his own nature, that is to say, of life,” and a law of nature (lex naturalis) as “a precept or general rule found out by reason, by which a man is forbidden to do that which is destructive of his life.” He then enumerated the elementary rules on which peace and society could be established. Thus, Grotius and Hobbes stand together at the head of that “school of natural law” that, in accordance with the tendencies of the Enlightenment, tried to construct a whole edifice of law by rational deduction from a hypothetical “state of nature” and a “social contract” of consent between rulers and subjects. John Locke (1632–1704) departed from Hobbesian pessimism to the extent of describing the state of nature as a state of society, with free and equal men already observing the natural law. In France Charles-Louis de Secondat Montesquieu (1689–1755) argued that natural laws were presocial and superior to those of religion and the state, and Jean-Jacques Rousseau (1712–78) postulated a savage who was virtuous in isolation and actuated by two principles “prior to reason”: self-preservation and compassion (innate repugnance to the sufferings of others).

Law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction. And this is lex oeterna, the moral law, call also the law of nature. And by this law, written with the finger of God in the heart of man, were the people of God a long time governed, before the law was written by Moses, who was the first reporter or writer of law in the world.

Positive laws are human made laws that oblige or specify an action. It also describes the establishment of specific rights for an individual or group. The concept of positive law is distinct from "natural law", which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason." Positive law is also described as the law that applies at a certain time (present or past) and at a certain place, consisting of statutory law, and case law as far as it is binding. More specifically, positive law may be characterized as "law actually and specifically enacted or adopted by proper authority for the government of an organized jural society.

Thomas Aquinas conflated man made law and positive law however, there is a distinction between them. Whereas human made law regards law from the position of its origins (i.e. who it was that posited it), positive law regards law from the position of its legitimacy. Positive law is law by the will of whoever made it, and thus there can equally be divine positive law as there is man made positive law. Positive Law theory stems from the powers that have enacted it. This type of law is necessary as it is manmade or enacted by the state to protect the rights of the individuals, the governed, to resolve civil disputes and lastly to maintain order and safety in the society. In the Summa contra Gentiles Thomas himself writes of divine positive law where he says " if the law be divinely given, dispensation can be granted by divine authority" and "Lex autem a Deo posita est (But the Law was established by God)". Martin Luther also acknowledged the idea of divine positive law, as did Juan de Torquemada. 

Thomas Mackenzie divided the law into four parts, with two types of positive law: divine positive law, natural law, the positive law of independent states, and the law of nations. The first, divine positive law, "concerns the duties of religion" and is derived from revelation. He contrasted it with divine natural law, which is "recognized by reason alone, without the aid of revelation". The third, the positive law of independent states, is the law posited by "the supreme power in the state". It is, in other words, man-made positive law. The fourth, the law of nations, regulates "independent states in their intercourse with each other".

Thomas Aquinas has little difficulty with the idea of both divine positive law and human positive law, since he places no requirements upon the person who posits law that exclude either humans or the divine. However, for other philosophers the idea of both divine and human positive law has proven to be a stumbling block. Thomas Hobbes and John Austin both espoused the notion of an ultimate sovereign. Where Thomism (and indeed Mackenzie) divided sovereignty into the spiritual (God) and the temporal (Mackenzie's "supreme power in the state"), both Hobbes and Austin sought a single, undivided, sovereign as the ultimate source of the law. The problem that this causes is that a temporal sovereign cannot exist if humans are subject to a divine positive law, but if divine positive law does not apply to all humans then God cannot be sovereign either. Hobbes and Austin's answer to this is to deny the existence of divine positive law, and to invest sovereignty in humans, that are however subject to divine natural law. The temporal authority is sovereign, and responsible for translating divine natural law into human positive law. 

Is it legally and morally justifiable to kill and eat a human being in order to save one's life? (As decided in Speluncean Explorers case).

The four defendants in this case were members of the Speluncean Society, an organization of amateurs interested in 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. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave. When the men discovered their predicament they settled themselves near the obstructed entrance to wait until a rescue party should remove the detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party was promptly dispatched to the spot.

The task of rescue proved one of overwhelming difficulty. It was necessary to supplement the forces of the original party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of these, ten of the workmen engaged in clearing the entrance were killed. The treasury of the Speluncean Society was soon exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was expended before the imprisoned men were rescued. Success was finally achieved on the thirty-second day after the men entered the cave.

Since it was known that the explorers had carried with them only scant provisions, and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation before access to them could be obtained. On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain. They asked to be informed how long a time would be required to release them. The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed in communication with a committee of medical experts. The imprisoned men described their condition and the rations they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wireless machine within the cave then remained silent for eight hours. When communication was re-established the men asked to speak again with the physicians. The chairman of the physicians' committee was placed before the apparatus, and Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number. The physicians' chairman reluctantly answered this question in the affirmative. Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. None of the physicians present was willing to answer the question. Whetmore then asked if there were among the party a judge or other official of the government who would answer this question. None of those attached to the rescue camp was willing to assume the role of advisor in this matter. He then asked if any minister or priest would answer their question, and none was found who would do so. Thereafter no further messages were received from within the cave, and it was assumed (erroneously, it later appeared) that the electric batteries of the explorers' wireless machine had become exhausted. When the imprisoned men were finally released it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions.

After the imprisoned explorers released, it was discovered that one of them was killed and eaten when they were in a cave and it was a reason for their survivor. They were charged with murder by causing death of whetmore and there was a lot of opinions and decision as given by the following judges who involved to give decision of this fiction case;

Truepenny, C.J. sentenced the defendants to be hanged until death for causing death of George Whetmore for grounds that, commonwealth laws give no exception to kill relating to a tragedy happened to the defendants. And laws clearly say that it is not allowed in any situation for a person to cause unjustified death. It seems to me that in dealing with this extraordinary case 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. The language of our statute is well known: "Whoever shall willfully take the life of another shall be punished by death". This statute permits of no exception applicable to this case, however our sympathies may incline us to make allowance for the tragic situation in which these men found themselves.

Foster, J. was against Truepenny on a ground of Executive Clemency, he had a view that there is no need of sympathy to offenders but there must be a good legal system so as to give clear decisions, on his opinion Foster say, “For myself, I do not believe that our law compels the monstrous conclusion that these men are murderers. I believe, on the contrary, that it declares them to be innocent of any crime. I rest this conclusion on two independent grounds, either of which is of itself sufficient to justify the acquittal of these defendants”.

The first of these grounds rests on a premise that may arouse opposition until it has been examined candidly. I take the view that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case, and that the case is governed instead by what ancient writers in Europe and America called "the law of nature."

This conclusion rests on the proposition that our 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 has ceased to exist. When that condition disappears, then it is my opinion that the force of our positive law disappears with it. We are not accustomed to applying the maxim cessante ratione legis, cessat et ipsa lex to the whole of our enacted law, but I believe that this is a case where the maxim should be so applied.

Tatting, J. said, in the discharge of my duties as a justice of this Court, I am usually able to dissociate the emotional and intellectual sides of my reactions, and to decide the case before me entirely on the basis of the latter. In passing on this tragic case I find that my usual resources fail me. On the emotional side I find myself torn between sympathy for these men and a feeling of abhorrence and disgust at the monstrous act they committed. I had hoped that i would be able to put these contradictory emotions to one side as irrelevant, and to decide the case on the basis of a convincing and logical demonstration of the result demanded by our law. Unfortunately, this deliverance has not been vouchsafed me.

As I analyze the opinion just rendered by my brother Foster, I find that it is shot through with contradictions and fallacies. Let us begin with his first proposition: these men were not subject to our law because they were not in a "state of civil society" but in a "state of nature." I am not clear why this is so, whether it is because of the thickness of the rock that imprisoned them, or because they were hungry, or because they had set up a "new charter of government" by which the usual rules of law were to be supplanted by a throw of the dice. Other difficulties intrude themselves. If these men passed from the jurisdiction of our law to that of "the law of nature," at what moment did this occur? Was it when the entrance to the cave was blocked, or when the threat of starvation reached a certain undefined degree of intensity, or when the agreement for the throwing of the dice was made? These uncertainties in the doctrine proposed by my brother are capable of producing real difficulties. Suppose, for example, one of these men had had his twenty-first birthday while he was imprisoned within the mountain. On what date would we have to consider that he had attained his majority - when he reached the age of twenty-one, at which time he was, by hypothesis, removed from the effects of our law, or only when he was released from the cave and became again subject to what my brother calls our "positive law"? These difficulties may seem fanciful, yet they only serve to reveal the fanciful nature of the doctrine that is capable of giving rise to them.

Lastly Tatting had no any authority to use and he was incapable to use a state of nature as proposed by Foster. He failed to continue with a case and he declared withdrawal from a case.

My judgment if I was a judge (Conclusion)

To give judgment to this case I decide to use two doctrines one is “state of nature”, and the second is “positive laws”. I can accept but with little doubt on facts presented by Foster, J on his decision, he stated that the men were in state of nature that they were not linked to laws applicable on earth, they had their own control of themselves and they created their own system for decision on what to do. In my opinion I know that a state of nature was that before the enactment of positive laws, before the existence of man made laws people were leaving under a state of nature depending the environment, they were regulated by environment. After the coming of positive laws, people decided to make their own ways of leaving through laws but at the same time they decided to include natural laws in statutes then state of nature cease to exist in this situation.

If this tragedy had to happen in a state of nature where the environment was the law and control of human beings I can say yes they did something right to kill one of their own for their survivor and they are not guilty because they were in a state of nature where the positive laws cannot used.

As a judge using positive laws it is clear that there was an offence in speluncean explorers, it is globally known that there is no exception to murder apart from justifiable killings and excuses which is not defense per se because it only reduce punishment and not acquittal of an accused person.

In a case of Commonwealth v Valjean, starvation was held not to justify the theft of a loaf of bread, Valjean was imprisoned after stealing bread to feed his sister's starving children. This precedent give me power as a judge who use positive law to see an offence committed by defendants, by using this case I can say that, if starvation cannot justify theft cannot justify killings either and the defendants were guilty to the eyes of the law.

R v Dudley and Stephens is a leading English criminal case which established a precedent throughout the common law world that necessity is not a defense to a charge of murder. It concerned survival cannibalism following a shipwreck and its purported justification on the basis of a custom of the sea. It marked the culmination of a long history of attempts by the law, in the face of public opinion sympathetic to cast aways, to outlaw the custom and it became something of a cause célèbre in Victorian Britain.

Dudley and Stephens were shipwrecked along with two other men. When one of them, the cabin boy Richard Parker, fell into a coma, Dudley and Stephens decided to kill him for food. After a highly publicized trial they were convicted of murder and sentenced to death with a recommendation for clemency; the sentence was commuted to six months in prison.

In United States v Holmes, in 1842, a longboat containing passengers and members of the crew of a sunken American vessel was cast adrift in the stormy sea. To prevent the boat from being swamped, members of the crew threw some of the passengers overboard. A ruling stated that “A man may not kill another in order to save himself, even if by doing so he will save others as well, absent a direct and immediate threat to his or another’s life by the person to be killed”. The defendants were sentenced because they were found guilty by causing death of other human beings.

By using the ideas of other judges as discussed above and as a judge who use man made laws, the defendants are guilty and they have to suffer death by hanging as provided by the laws worldwide. But may decision will base on a situation itself that explorers found themselves, also sometime we are not forced to use the law as it is(plain text of the statute), law is made for betterment of the society and for the purpose to bring development, losing five people in the cave for just a stupid notion of following the law is crazy, what happened was not right but at least we lost one person and save the remaining.

I declare to set the defendants free with no case to answer but I recommend that this tragedy must be included in the amendment of law so as to add this situation as an exception to murder.

BIBLIOGRAPHY

CASES

Commonwealth v Valjean Caron & Gely 2004, p. 70–71.

R v Dudley and Stephens (1884) 14 QBD 273 DC

United States v Holmes, in 1842

BOOKS

Finch J. (1999) Introduction to Legal Theory, 3rd Edn, Sweet& Maxwell; London.

Myneni S.R (2004), Jurisprudence(Legal Theory), 2nd Edn, S.P. Gogia Asia Law House; India.

Tripathi B.N.M (1997) An Introduction to Jurisprudence (Legal Theory), Allahahbad Law Agency; New Delhi.

ONLINE SOURCES

https://en.wikipedia.org/wiki/Murder

https://definitions.uslegal.com/j/justifiable-homicide/

https://www.britannica.com/topic/natural-law

http://www.duhaime.org/LegalDictionary/L/LawofNature.aspx

https://en.wikipedia.org/wiki/Positive_law