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上海交通大学：《法律与道德》课程教学资源（案例）洞穴奇案50周年续写，哈佛法律评论原文

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I876 HARVARD LAW REVIEW Vol.112:1834 THE CASE OF THE SPELUNCEAN EXPLORERS: REVISITED KOZINSKI,J.' [IIn the days when the judges ruled,a great famine came upon the land..·· Ruth I:I The statute under which defendants were convicted could not be clearer.It provides that "[w]hoever shall willfully take the life of an- other shall be punished by death."N.C.S.A.(N.s.)$I2-A.These thirteen simple English words are not unclear or ambiguous;they leave no room for interpretation;they allow for no exercise of judg- ment.(It would be different,of course,if the statute contained such inherently ambiguous terms as“is,”“alone,”or“have sex'”一which might mean anything to anybody-but fortunately it doesn't.)Statu- tory construction in this case is more accurately described as statutory reading.In these circumstances,a conscientious judge has no choice but to apply the law as the legislature wrote it. As the jury found,Roger Whetmore did not die of illness,starva- tion,or accident;rather,he was killed by the defendants.And the killing was not the result of accident or negligence;it was willful homicide.Indeed,defendants thought long and hard before they acted,even going to the trouble of consulting physicians and other out- side advisors.Under the law of Newgarth,which we have sworn to apply,we must affirm the conviction. Defendants argue this result is unjust and ask us to make an excep- tion because of the difficult and unusual circumstances in which they found themselves.They claim it is perverse,possibly hypocritical,to punish them for acts that even the best among us might have commit- ted,had we found ourselves in the same predicament.These are good arguments,presented to the wrong people. There was a time in our history,during the age known as the common law,when judges did not merely interpret laws,they actually made them.At common law,when the legislature was seldom in ses- sion and statutes were few and far between,judges developed the law on a case-by-case basis.One case would announce a rule that,when applied to unanticipated facts,reached an absurd result.The judges would then consult their common sense-their sense of justice-and modify the rule to take account of the novel circumstances.At com- Circuit Judge,United States Court of Appeals for the Ninth Circuit.Judge Kozinski has no stomach for spelunking;he prefers tamer sports like snowboarding,bungee jumping and paint- ball. HeinOnline--112 Harv.L.Rev.1876 1998-1999

HARVARD LAW REVIEW THE CASE OF THE SPELUNCEAN EXPLORERS: REVISITED KoZINSKI, J.* [In the days when the judges ruled, a great famine came upon the land .... Ruth i:i The statute under which defendants were convicted could not be clearer. It provides that "[w]hoever shall willfully take the life of another shall be punished by death." N. C. S. A. (N. S.) § 12-A. These thirteen simple English words are not unclear or ambiguous; they leave no room for interpretation; they allow for no exercise of judgment. (It would be different, of course, if the statute contained such inherently ambiguous terms as "is," "alone," or "have sex" - which might mean anything to anybody - but fortunately it doesn't.) Statutory construction in this case is more accurately described as statutory reading. In these circumstances, a conscientious judge has no choice but to apply the law as the legislature wrote it. As the jury found, Roger Whetmore did not die of illness, starvation, or accident; rather, he was killed by the defendants. And the killing was not the result of accident or negligence; it was willful homicide. Indeed, defendants thought long and hard before they acted, even going to the trouble of consulting physicians and other outside advisors. Under the law of Newgarth, which we have sworn to apply, we must affirm the conviction. Defendants argue this result is unjust and ask us to make an exception because of the difficult and unusual circumstances in which they found themselves. They claim it is perverse, possibly hypocritical, to punish them for acts that even the best among us might have committed, had we found ourselves in the same predicament. These are good arguments, presented to the wrong people. There was a time in our history, during the age known as the common law, when judges did not merely interpret laws, they actually made them. At common law, when the legislature was seldom in session and statutes were few and far between, judges developed the law on a case-by-case basis. One case would announce a rule that, when applied to unanticipated facts, reached an absurd result. The judges would then consult their common sense - their sense of justice - and modify the rule to take account of the novel circumstances. At com- * Circuit Judge, United States Court of Appeals for the Ninth Circuit. Judge Kozinski has no stomach for spelunking; he prefers tamer sports like snowboarding, bungee jumping and paintball. 1876 [Vol. 112:1834 HeinOnline -- 112 Harv. L. Rev. 1876 1998-1999

I999] THE SPELUNCEAN EXPLORERS I877 mon law,justice meant tweaking a harsh rule to reach a sensible re- sult. But we are not common law judges;we are judges in an age of statutes.For us,justice consists of applying the laws passed by the legislature,precisely as written by the legislature.Unlike common law judges,we have no power to bend the law to satisfy our own sense of right and wrong.As a wise jurist once observed,"judicial discomfort with a surprisingly harsh rule is not enough to permit its revision." United States v.Fountain,840 F.2d 509,519 (7th Cir.1988)(Easter- brook,J.).That we may feel sympathy for the defendants-that any of us might be in their place but for the grace of God-gives us no authority to ignore the will of the citizens of Newgarth,as embodied in their duly enacted laws.(Unless,of course,the laws violate the New- garth Constitution-which the law here does not.) This case illustrates why justice is too elusive a concept to be left to judges.Before us stand sympathetic defendants,represented by silver- tongued lawyers who argue that their clients had no choice but to kill Whetmore."If they had to eat,you must acquit,"they tell us.The re- ality is more doubtful.Defendants were told there was "little possibil- ity,”supra,at1852(Truepenny,,CJ）一not“no possibility'”一they would survive for the ten more days it would take to rescue them. The human body can be strangely resilient and oftentimes surprises us. For example,in late twentieth-century America,Karen Ann Quinlan lived for nine years after life support systems were removed from her comatose body-contrary to doctors'predictions that she would die at once if life support were removed.See Cruzan v.Harmon,760 S.W.2d 408,413 n.6 (Mo.1988),affd sub nom.Cruzan v.Director Mo.Dep't of Health,497 U.S.261(19go). Had defendants not taken Whetmore's life,everyone in the group might have survived.And if all had not survived,one surely would have died first,and that unfortunate fellow's body could have been eaten by the rest.Whetmore himself seemed to think that survival for another week was possible;why were the others in such a rush to shed blood?Whether the deliberate killing of a human being under these circumstances should be criminal is a difficult question.It must be an- swered by the conscience of the community,and that conscience is bet- ter gauged by the 535 members of the Newgarth legislature than by six unelected,effectively unremovable judges. Defendants also argue that the Newgarth legislature could not have meant what it said that it must have overlooked a case such as theirs.But defendants are not the first to have suffered this predica- ment.More than two millennia have passed since Regina v.Dadley and Stephens,14 Q.B.D.273 (1884),which raised precisely the same question,and United States v.Holmes,26 F.Cas.360(C.C.E.D.Pa. 1842)(No.I5,383),which dealt with a closely analogous situation.Un- fortunate incidents like these do happen from time to time,and we HeinOnline--112 Harv.L.Rev.1877 1998-1999

THE SPELUNCEAN EXPLORERS mon law, justice meant tweaking a harsh rule to reach a sensible result. But we are not common law judges; we are judges in an age of statutes. For us, justice consists of applying the laws passed by the legislature, precisely as written by the legislature. Unlike common law judges, we have no power to bend the law to satisfy our own sense of right and wrong. As a wise jurist once observed, "judicial discomfort with a surprisingly harsh rule is not enough to permit its revision." United States v. Fountain, 840 F.2d 509, 519 (7th Cir. 1988) (Easterbrook, J.). That we may feel sympathy for the defendants - that any of us might be in their place but for the grace of God - gives us no authority to ignore the will of the citizens of Newgarth, as embodied in their duly enacted laws. (Unless, of course, the laws violate the Newgarth Constitution - which the law here does not.) This case illustrates why justice is too elusive a concept to be left to judges. Before us stand sympathetic defendants, represented by silvertongued lawyers who argue that their clients had no choice but to kill Whetmore. "If they had to eat, you must acquit," they tell us. The reality is more doubtful. Defendants were told there was "little possibility," supra, at 1852 (Truepenny, C.J.) - not "no possibility" - they would survive for the ten more days it would take to rescue them. The human body can be strangely resilient and oftentimes surprises us. For example, in late twentieth-century America, Karen Ann Quinlan lived for nine years after life support systems were removed from her comatose body - contrary to doctors' predictions that she would die at once if life support were removed. See Cruzan v. Harmon, 76o S.W.2d 408, 413 & n.6 (Mo. 1988), affd sub nom. Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (i99o). Had defendants not taken Whetmore's life, everyone in the group might have survived. And if all had not survived, one surely would have died first, and that unfortunate fellow's body could have been eaten by the rest. Whetmore himself seemed to think that survival for another week was possible; why were the others in such a rush to shed blood? Whether the deliberate killing of a human being under these circumstances should be criminal is a difficult question. It must be answered by the conscience of the community, and that conscience is better gauged by the 535 members of the Newgarth legislature than by six unelected, effectively unremovable judges. Defendants also argue that the Newgarth legislature could not have meant what it said - that it must have overlooked a case such as theirs. But defendants are not the first to have suffered this predicament. More than two millennia have passed since Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884), which raised precisely the same question, and United States v. Holmes, 26 F. Cas. 36o (C.C.E.D. Pa. 1842) (No. 15,383), which dealt with a closely analogous situation. Unfortunate incidents like these do happen from time to time, and we 1999] 1877 HeinOnline -- 112 Harv. L. Rev. 1877 1998-1999

I878 HARVARD LAW REVIEW [Vol.I12:1834 must presume the legislature was aware of them,yet chose not to make an exception. But even if this were a case of legislative oversight,it would make no difference.We are not free to ignore or augment the legislature's words just because we think it would have said something else,had it but thought of it.Next week we may have a case in which a man is sentenced to death for killing his dog.Could we affirm the sentence if we were persuaded that the legislature would have made canicide a capital offense,had it but thought of it?Surely not. If putting these defendants to death is unjust-if it offends the sense of the community-relief must come from the organs of gov- ernment best equipped to judge what the community wants.Contrary to defendants'claim that they have widespread support among the population,elected officials have been strangely deaf to their pleas. The Newgarth legislature-which is almost always in session nowa- days-could have amended N.C.S.A.(N.s.)$I2-A to make an ex- ception for defendants'case.Any such law could have been made ex- pressly applicable to the defendants,as the Newgarth Constitution contains no reverse ex post facto or bill of attainder clauses.Then again,the Attorney General could have chosen not to prosecute,or to prosecute for a lesser offense.The grand jury-sometimes referred to as the conscience of the community-could have refused to indict, but indict it did.And the petit jury could have exercised its power of nullification by returning a not guilty verdict if convicting defendants offended its collective conscience.See Paul Butler,Racially Based Jury Nullification:Black Power in the Criminal Justice System,1o5 Yale L.J.677,7o0-oI(1995).It would be arrogant for us to pretend that we know better than all these other public officials what justice calls for in this case.The political process may yet come to the defen- dants'rescue,or it may not.But it is in the political arena that defen- dants must seek relief if they believe the law,as applied to them,has reached an unjust result.We serve justice when we apply the law as written. *米 Although this concludes my analysis,I pause to comment on the views expressed by my colleagues.Some of them,see infra,at 1913 (Easterbrook,J.);infra,at 1884-85(Sunstein,J.),infer judicial author- ity to read exceptions and defenses into N.C.S.A.(N.s.)$I2-A from the fact that the statute,if read literally,would condemn willful kill- ings by police,executioners,and those acting in self-defense.This pre- supposes that section I2-A is the only statute bearing on this issue, which it surely is not.In a statutory system,the definition of murder is written in categorical terms,as in section I2-A,while other provi- sions define justifiable homicide,such as legal authority and self- HeinOnline--112 Harv.L.Rev.1878 1998-1999

HARVARD LAW REVIEW must presume the legislature was aware of them, yet chose not to make an exception. But even if this were a case of legislative oversight, it would make no difference. We are not free to ignore or augment the legislature's words just because we think it would have said something else, had it but thought of it. Next week we may have a case in which a man is sentenced to death for killing his dog. Could we affirm the sentence if we were persuaded that the legislature would have made canicide a capital offense, had it but thought of it? Surely not. If putting these defendants to death is unjust - if it offends the sense of the community - relief must come from the organs of government best equipped to judge what the community wants. Contrary to defendants' claim that they have widespread support among the population, elected officials have been strangely deaf to their pleas. The Newgarth legislature - which is almost always in session nowadays - could have amended N. C. S. A. (N. S.) § 12-A to make an exception for defendants' case. Any such law could have been made expressly applicable to the defendants, as the Newgarth Constitution contains no reverse ex post facto or bill of attainder clauses. Then again, the Attorney General could have chosen not to prosecute, or to prosecute for a lesser offense. The grand jury - sometimes referred to as the conscience of the community - could have refused to indict, but indict it did. And the petit jury could have exercised its power of nullification by returning a not guilty verdict if convicting defendants offended its collective conscience. See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 700-01 (1995). It would be arrogant for us to pretend that we know better than all these other public officials what justice calls for in this case. The political process may yet come to the defendants' rescue, or it may not. But it is in the political arena that defendants must seek relief if they believe the law, as applied to them, has reached an unjust result. We serve justice when we apply the law as written. Although this concludes my analysis, I pause to comment on the views expressed by my colleagues. Some of them, see infra, at 1913 (Easterbrook, J.); infra, at 1884-85 (Sunstein, J.), infer judicial authority to read exceptions and defenses into N. C. S. A. (N. S.) § 12-A from the fact that the statute, if read literally, would condemn willful killings by police, executioners, and those acting in self-defense. This presupposes that section 12-A is the only statute bearing on this issue, which it surely is not. In a statutory system, the definition of murder is written in categorical terms, as in section 12-A, while other provisions define justifiable homicide, such as legal authority and self- 1878 [VOL. 112:1834 HeinOnline -- 112 Harv. L. Rev. 1878 1998-1999

I999] THE SPELUNCEAN EXPLORERS 879 defense (archaic examples dating from as far back as the twentieth century include sections 196 and 197 of California's Penal Code,Cal. Penal Code Ss 196-197 (West 1988),and section 35.05 of the New York Penal Law,N.Y.Penal Law 35.05 (Consol.1998)),and excus- able homicide caused by accident or misfortune during a lawful activ- ity (to give another twentieth-century example,section 195 of Califor- nia's Penal Code,Cal.Penal Code 195).Defendants have not cited any of the provisions dealing with justification or excuse,doubtless be- cause they do not apply.But that doesn't mean they don't exist,or that the legislature gave judges blanket authority to cut holes into the statute whenever the spirit so moves them. The folly of this approach is perhaps best illustrated by Justice Easterbrook,who finds justification here based on an easy calculus: the killing is justified if there is a net savings in lives.See infra,at 1915(Easterbrook,J.).But,as Justice West ably demonstrates,there are many situations where one could offer such a justification-the case of the conscripted organ donor for example.See infra,at 1896 (West,J.).Justice Easterbrook offers a "negotiation"rationale for his conclusion-he infers that the spelunceans would have preferred to enter the cave under a regime where one would be sacrificed to feed the rest rather than under a regime where all would starve.See infra, at 19I5-16(Easterbrook,J.).One could just as easily hypothesize a negotiation as to organ donation:any group of five people(one healthy and four needing his organs)could be supposed to have made a pact, while they were all still healthy,to sacrifice the one among them whose organs would be needed to save the rest.Under Justice Easterbrook's rationale,the four would be justified in hunting down a fifth and ran- sacking his body for vital organs. The parties here did negotiate but failed to reach agreement be- cause Whetmore refused to go along with the bargain;he,at least as of that time,thought that a one in five chance of being killed and eaten was worse than the alternative.My brother Easterbrook rejects this actual negotiation in favor of a hypothetical one where the outcome is dictated entirely by his personal preferences,but he gives no satisfac- tory reason for doing so.The negotiations actually conducted between the parties-where death was imminent and the risks concrete-are surely a better indication of what agreement would be reached by people in dire straits than Justice Easterbrook's musings about what imaginary explorers,faced with a remote and hypothetical risk,would decide if they took the trouble to think about it.This is a case of a judge who will not let mere facts stand in the way of a perfectly good theory.It demonstrates,better than anything I might say,the danger of appointing academics to the bench. I am more sanguine about the approach taken by my brother Sun- stein,though he dithers mightily before he gets to the point.Unlike Justice Easterbrook-who lightly undertakes to weigh life and death HeinOnline--112 Harv.L.Rev.1879 1998-1999

THE SPELUNCEAN EXPLORERS defense (archaic examples dating from as far back as the twentieth century include sections 196 and 197 of California's Penal Code, Cal. Penal Code §§ 196-197 (West 1988), and section 35.05 of the New York Penal Law, N.Y. Penal Law § 35.05 (Consol. 1998)), and excusable homicide caused by accident or misfortune during a lawful activity (to give another twentieth-century example, section 195 of California's Penal Code, Cal. Penal Code § 195). Defendants have not cited any of the provisions dealing with justification or excuse, doubtless because they do not apply. But that doesn't mean they don't exist, or that the legislature gave judges blanket authority to cut holes into the statute whenever the spirit so moves them. The folly of this approach is perhaps best illustrated by Jjustice Easterbrook, who finds justification here based on an easy calculus: the killing is justified if there is a net savings in lives. See infra, at 1915 (Easterbrook, J.). But, as Justice West ably demonstrates, there are many situations where one could offer such a justification - the case of the conscripted organ donor for example. See infra, at 1896 (West, J.). Justice Easterbrook offers a "negotiation" rationale for his conclusion - he infers that the spelunceans would have preferred to enter the cave under a regime where one would be sacrificed to feed the rest rather than under a regime where all would starve. See infra, at 1915-16 (Easterbrook, J.). One could just as easily hypothesize a negotiation as to organ donation: any group of five people (one healthy and four needing his organs) could be supposed to have made a pact, while they were all still healthy, to sacrifice the one among them whose organs would be needed to save the rest. Under Justice Easterbrook's rationale, the four would be justified in hunting down a fifth and ransacking his body for vital organs. The parties here did negotiate but failed to reach agreement because Whetmore refused to go along with the bargain; he, at least as of that time, thought that a one in five chance of being killed and eaten was worse than the alternative. My brother Easterbrook rejects this actual negotiation in favor of a hypothetical one where the outcome is dictated entirely by his personal preferences, but he gives no satisfactory reason for doing so. The negotiations actually conducted between the parties - where death was imminent and the risks concrete - are surely a better indication of what agreement would be reached by people in dire straits than Justice Easterbrook's musings about what imaginary explorers, faced with a remote and hypothetical risk, would decide if they took the trouble to think about it. This is a case of a judge who will not let mere facts stand in the way of a perfectly good theory. It demonstrates, better than anything I might say, the danger of appointing academics to the bench. I am more sanguine about the approach taken by my brother Sunstein, though he dithers mightily before he gets to the point. Unlike Justice Easterbrook - who lightly undertakes to weigh life and death 1999] 1879 HeinOnline -- 112 Harv. L. Rev. 1879 1998-1999

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