Saya menelusuri rak buku milik ayah saya setelah cukup lama saya tidak bermain kesana. Deretan pertama berisikan buku-buku suci, yaa, beberapa koleksi kitab tafsir dan buku bertemakan pendekatan relijius lainnya. Padat dan sungguh berwarna. Deretan kedua berisikan buku-buku politik lawas hingga kontemporer, buku- buku pendekatan psikologi-nafsiologi, psikologi kerja, psikologi anak, psikologi ketuhanan, buku-buku bertemakan perdamaian dan sosialisasi di masyarakat plural, serta beberapa buku tentang aktualisasi diri, mulai dari karya seorang agamis hingga jenderal purnawirawan. Deretan selanjutnya bukan milik ayah saya saja. Itu milik ayah dan ibu saya. Disana ada beberapa karya sastra lepas, prosa lama, kisah-kisah mengenai tokoh idola kedua orang tua saya, serta buku-buku Hirata dan Habiburrahman favorit ibu saya.
Mata saya tertuju pada salah satu buku bersampul tak menarik di ujung deretan kedua. Judulnya Nafsiologi. Karya Sukanto, MM. Kertasnya pun tak jua menarik. Tetapi saya tertarik sekedar membukanya dan melihat-lihat seperti apa isi buku-buku lawas milik ayah saya itu. Ada beberapa bagian yang sungguh menarik rupanya. Saya ulas lengkap buku ini nanti, pada terbitan blog saya mendatang.
"Manusia bukan saja unik tetapi juga kompleks. Pribadi manusia itu secara struktural dicipta dalam wujud yang utuh. Lahir-batin manusia secara fungsional saling mengisi dan bukan membentuk dua anti-pode yang saling tantang. Akan tetapi, kedua sektor itu ternyata bisa 'pecah', sektor lahir berlawanan dengan sektor batin. Bukan itu saja keunikan manusia. Ia memiliki variabel gerak yang demikian besarnya, seolah-olah dunia ini bisa 'ditelan' olehnya. Padahal, ia hanya sebuah 'titik' saja dalam dunia ini. Kompleksitasnya sering nampak, karena 'aku' manusia bisa menyimpan rahasia bersifat prive yang sukar diramal dan diperhitungkan. Ditarik dalam simpul kata, pembahasan tentang manusia belum bisa disebut mencapai predikat tuntas, sejak dulu sampai kini. Dunia filsafat telah menjelajahi jaring-jaring logika, dunia sains telah mengobservasi dengan alat-alat inderawi yang dianggapnya solid, agama ditampilkan dalam berbagai versi tafsir, namun belum juga ada kejelasan yang mantap tentang apa yang disebut 'manusia utuh' atau tentang 'manusia' sebagai 'manusia'..."
:)
Senin, 30 Agustus 2010
Minggu, 29 Agustus 2010
The Heart Can be A Real Bastard
The Heart Can be A Real Bastard
Terkadang saya benci sekali kenapa hati ini tercipta dan terkadang menjadi sentral dari segalanya. Bahkan otak, yang menjadi sumber dari intelegensia si empunya, tertunduk lesu dan tak berdaya ketika hati mulai berbicara. Saya heran mengapa kekuatan itu bisa tercipta. Merusak segala konstelasi pertahanan yang telah diciptakan dengan sedemikian rupa oleh sang empunya, bisa seketika hancur ketika hati menguap dan meletupkan apa yang ia rasa.
Sungguh tidak adil segalanya. Mengapa tidak Tuhan pisahkan saja fungsinya, disebar ke berbahai organ yang menyusun tubuh setiap manusia. Semuanya memiliki unit-unit hati tersendiri yang kemudian pada akhirnya voting suara organ-organ t ubuh tersebut yang akan menjadi suara hati si empunya. Bukan keadaan serba diktatorial yang hati lakukan seperti saat ini. Dia melulu yang menentukan segalanya. Terkadang ia bahkan membuat ilusi bahwa otak tidak pandai dalam membuat keputusan. Otak dicaci sedemikian rupa, kemudian ia membuat bayangan baru di balik otak, dibuatnya sungguh nyata, proyeksi apa yang akan terjadi apabila si empunya mempercayai otaknya ketimbang hatinya. Hati mengeluarkan jurus- jurus kecemasan, ketakutan, kekhawatiran, dan berbagai faktor x lainnya yang membuat si empunya goyah untuk mempercayai rasionya sendiri, dan berpaling ke hal lain yang dianggapnya lebih merepresentasikan suara dirinya, yakni hati tadi. Benar- benar konspirasi yang rapi.
Hidup itu pilihan. Hidup itu hati. Empunya selalu mempercayai hati. Hidup itu tentang hati, selalu begitu pada akhirnya. Saya heran mengapa hati diberi otoritas terlalu banyak, membiarkannya menjadi diktator dalam setiap diri manusia, menjajah jelata hingga para doktor lulusan Harvard sana. Menindas manusia dari berbagai kemasan dan gaya hidup. Hati yang membuat semuanya menjadi lain dan sama. Saya mau tahu apakah ada tombol sakti yang bisa menjatuhkan rezim hati di diri saya. Memilih jalan hidup perlu pertimbangannya. Memilih makanan perlu pertimbangannya. Memilih pakaian perlu kritik darinya. Mengapresiasi seni hanya ketika itu sesuai dengan seleranya. Memilih cinta hanya ketika ia bilang ini cinta. Saya menyerah dan akhirnya sulit berkata tidak akan pilihannya.
Maukah hati bernegosiasi dengan saya sekali saja? Membuat konsesi besar dalam hidup saya, misalnya menjelaskan mengapa pilihannya ini bukan itu, menjelaskan mengapa ini kanan bukan kiri, mengapa ini harus malam bukan siang, mengapa ini cinta dan itu bukan. Atau sekedar memberi saya satu kesempatan untuk memilih tanpa ada intervensi darinya untuk menentukan pilihan.
Ah, saya ini bermimpi. Saya sudah tahu ia tak akan mau diajak bernegosiasi. Negosiasi itu seperti klub malam, tempat yang tak akan hati masuki.
Terkadang saya benci sekali kenapa hati ini tercipta dan terkadang menjadi sentral dari segalanya. Bahkan otak, yang menjadi sumber dari intelegensia si empunya, tertunduk lesu dan tak berdaya ketika hati mulai berbicara. Saya heran mengapa kekuatan itu bisa tercipta. Merusak segala konstelasi pertahanan yang telah diciptakan dengan sedemikian rupa oleh sang empunya, bisa seketika hancur ketika hati menguap dan meletupkan apa yang ia rasa.
Sungguh tidak adil segalanya. Mengapa tidak Tuhan pisahkan saja fungsinya, disebar ke berbahai organ yang menyusun tubuh setiap manusia. Semuanya memiliki unit-unit hati tersendiri yang kemudian pada akhirnya voting suara organ-organ t ubuh tersebut yang akan menjadi suara hati si empunya. Bukan keadaan serba diktatorial yang hati lakukan seperti saat ini. Dia melulu yang menentukan segalanya. Terkadang ia bahkan membuat ilusi bahwa otak tidak pandai dalam membuat keputusan. Otak dicaci sedemikian rupa, kemudian ia membuat bayangan baru di balik otak, dibuatnya sungguh nyata, proyeksi apa yang akan terjadi apabila si empunya mempercayai otaknya ketimbang hatinya. Hati mengeluarkan jurus- jurus kecemasan, ketakutan, kekhawatiran, dan berbagai faktor x lainnya yang membuat si empunya goyah untuk mempercayai rasionya sendiri, dan berpaling ke hal lain yang dianggapnya lebih merepresentasikan suara dirinya, yakni hati tadi. Benar- benar konspirasi yang rapi.
Hidup itu pilihan. Hidup itu hati. Empunya selalu mempercayai hati. Hidup itu tentang hati, selalu begitu pada akhirnya. Saya heran mengapa hati diberi otoritas terlalu banyak, membiarkannya menjadi diktator dalam setiap diri manusia, menjajah jelata hingga para doktor lulusan Harvard sana. Menindas manusia dari berbagai kemasan dan gaya hidup. Hati yang membuat semuanya menjadi lain dan sama. Saya mau tahu apakah ada tombol sakti yang bisa menjatuhkan rezim hati di diri saya. Memilih jalan hidup perlu pertimbangannya. Memilih makanan perlu pertimbangannya. Memilih pakaian perlu kritik darinya. Mengapresiasi seni hanya ketika itu sesuai dengan seleranya. Memilih cinta hanya ketika ia bilang ini cinta. Saya menyerah dan akhirnya sulit berkata tidak akan pilihannya.
Maukah hati bernegosiasi dengan saya sekali saja? Membuat konsesi besar dalam hidup saya, misalnya menjelaskan mengapa pilihannya ini bukan itu, menjelaskan mengapa ini kanan bukan kiri, mengapa ini harus malam bukan siang, mengapa ini cinta dan itu bukan. Atau sekedar memberi saya satu kesempatan untuk memilih tanpa ada intervensi darinya untuk menentukan pilihan.
Ah, saya ini bermimpi. Saya sudah tahu ia tak akan mau diajak bernegosiasi. Negosiasi itu seperti klub malam, tempat yang tak akan hati masuki.
Halo Dunia
Halo dunia.
Rasanya malu sekali menyapamu kini, setelah beberapa saat saya tidak menyapamu dengan sapaan hangat. Sekenanya saja. Sekedar lewat saja. Maafkan saya yang tidak terlalu memprioritaskan dirimu dibandingkan dengan teman- temanmu disana, jejaring mini yang mengizinkan saya singgah sekenanya saja, dalam rumah kecil berukuran 140 karakter saja. Mungkin kamu terluka melihat hati saya direbut begitu saja. Mohon dimaafkan. Kini saya akan kembali memelukmu seperti sedia kala. Memelukmu seolah tak ada entitas lain yang lebih berharga. Tidak jejaring mini, tidak juga portal akademik, yang beberapa hari yang lalu berhasil menjajah saya selama 27 jam berturut- turut tidak memejamkan mata, memaksa saya terkapar seperti seorang tertuduh di bui yang diinterogasi tanpa henti selama dua puluh tujuh jam! Izinkan saya menceritakan semuanya padamu. Hanya padamu. Maksud saya, kamu yang kedua setelah Tuhan tentunya.
Cerita satu. Saya hanya ingin kuliah. Itu saja.
Cerita diawali dengan perencanaan matang saya untuk mengambil mata kuliah baru di semester lima. Seluruhnya telah saya persiapkan dengan matang, mulai dari kelas- kelas yang disinyalir dapat memberikan warna baru dalam perjalanan akademik saya, dosen- dosen yang ramah dan tentu menarik untuk disimak, hingga menghindari dosen globalonia yang telah masuk daftar hitam kelas yang tidak akan saya ambil di semester berikutnya. Setelah perencanaan yang begitu matang, delapan mata kuliah siap saya ambil untuk semster lima nanti. Enam belas Agustus. Dinihari pukul 00.15, bagian akademik mengumumkan bahwa pada tepat waktu inilah portal akademik akan resmi membuka masa pengisian rencana studi mahasiswa secara on line. Serempak seluruh mahasiswa bersiap-siaga, demi mendapatkan kelas yang diimpikan tanpa harus berebut atau bahkan kecewa karena kuota habis. Hal ini yang menjadi ciri khas periode KRS. Selalu berulang polanya setiap tahunnya. Kami berharap pihak universitas melakukan perbaikan di berbagai sisi, sehingga keluhan- keluhan mahasiswa pada tahun lalu didengar dan dievaluasi menjadi perbaikan total semester ini.
Ternyata tidak.
Saya dan beberapa rekan mulai panik ketika mendapati portal akademik tidak dapat diakses sama sekali. Selalu muncul berbagai angka- angka mistis ketika kami memasukkan alamat web tujuan, kemudian layar komputer kami berubah menjadi tulisan- tulisan aneh yang menandakan situs tersebut tidak dapat diakses. yang mengherankan, beberapa rekan lainnya berhasil mengakses dan bahkan berhasil mendapatkan kelas yang mereka inginkan tanpa hambatan sama sekali. Kami mulai panik. Menghujat dan memaki. Ratusan komplain bertebaran memenuhi berbagai media yang mungkin. Mulai dari jejaring portal, jejaring sosial, hingga komplain langsung yang dittujukan oleh teman- teman yang berada di sekitar kampus. Kami tidak tidur. Kami seperti mayat hidup yang seharian dan semalam suntuk memandangi layar komputer, memandangi layar telepon selular, berharap keajaiban segera datang. Beberapa jam setelah komplain secara langsung disampaikan oleh rekan- rekan kami, muncullah kabar bahwa server memang dnyatakan rusak.
Kami terkejut. Terlebih karena fakta ini bahkan tidak diberitahukan kepada mahasiswa, yang bahkan sudah sejak awal mengira portal akan baik- baik saja. Terlebih kuota kelas semakin berkurang, tandanya selalu ada mahasiswa yang berhasil mengakses portal tersebut. Kami panik bukan main. Beberapa rekan bahkan berkata bahwa nilai puasa mereka dipertanyakan karena adanya insiden ini. Tak mengherankan bla ada yang berbicara demikian. Makian dan hujatan tak lagi terperi dilontarkan di sana- sini, memenuhi pikiran dan kegundahan hati setiap mahasiswa yang tak beruntung seperti kami. Alangkah beratnya. Namun bagaimana lagi. Hanya itulah yang bisa kami lakukan. Selain opsi lan yang memang cukup radikal, seperti misalnya membawa tabung gas elpiji 3 kilogram dan meledakkan kampus kami. Ah, itu hanya sekelibat pikiran yang muncul di tengah deraan kegalauan kami yang tak tertahankan lagi.
Kami tidak main-main soal masa depan kami.
Mata kuliah benar- benar menentukan proyeksi masa depan kami. Fokus dan kecenderungan perilaku kami dibentuk dari awal menyiapkan pengaruh apa yang akan kami serap. Pengaruh apa yang akan mengindoktrinasi hari-hari kami melalui ceramah dan tugas tugas kelas. Teori dan konsepsi apa yang akan kami pakai untuk menganalisa setiap fenomena hubungan internasional yang menjadi fokus kami, atau saya khususnya.
Beberapa jam kemudian kami bisa mengakses dan memilih mata kuliah. Namun ketika dilakukan input data, situs tersebut kembali tak mau diajak bekerjasama. Tak bisa menghitung dia rupanya. Kami memasukkan 24 SKS, ia katakan 87 SKS. Kami benar- benar tak tahu lagi harus bagaimana. Padahal hari itu bertepatan dengan hari kemerdekaan negara kita. Kami merasa belum lepas dari penjajahan seketika.
Saya lagi- lagi tidak bisa tidak memberikan seluruh perhatian saya pada situs ini. Sepertinya saya bahkan sudah lelah untuk lelah. Saya lelah untuk pasrah, kemudian pasrah saja merelakan kelelahan ini merasuk dan bertengger, selamat datang. Saya kembali tidak tidur dan menunggu. Tak ada hasil. Ia masih pula tak dapat berhitung.
18 Agustus 2010 pukul 02.05
Seorang teman meghubungi saya bahwa situs itu telah kembali normal dan bisa diakses dengan cepat. Dia bilang, jangan gunakan PC atau Laptop. Dia bilang, gunakan telepon selular. Seketika saya mengakses lewan ponsel saya, melakukan input dengan luar biasa cepatnya, dan akhirnya.....
KELAS BERHASIL DIAMBIL. 24 SKS.
Ingin pingsan saya rasanya. Saya mengeluarkan air mata. Saya kesal, mengapa harus berlebihan seperti ini. Benar- benar diluar kontrol akal sehat saya.
Sambil tersenyum saya kirimkan pesan ke teman- teman yang bernasib serupa bahwa portal sudah bisa diakses. beberapa tertidur. Kehilangan kuota. Beberapa terbangun dan tersenyum seperti saya.
Rasanya malu sekali menyapamu kini, setelah beberapa saat saya tidak menyapamu dengan sapaan hangat. Sekenanya saja. Sekedar lewat saja. Maafkan saya yang tidak terlalu memprioritaskan dirimu dibandingkan dengan teman- temanmu disana, jejaring mini yang mengizinkan saya singgah sekenanya saja, dalam rumah kecil berukuran 140 karakter saja. Mungkin kamu terluka melihat hati saya direbut begitu saja. Mohon dimaafkan. Kini saya akan kembali memelukmu seperti sedia kala. Memelukmu seolah tak ada entitas lain yang lebih berharga. Tidak jejaring mini, tidak juga portal akademik, yang beberapa hari yang lalu berhasil menjajah saya selama 27 jam berturut- turut tidak memejamkan mata, memaksa saya terkapar seperti seorang tertuduh di bui yang diinterogasi tanpa henti selama dua puluh tujuh jam! Izinkan saya menceritakan semuanya padamu. Hanya padamu. Maksud saya, kamu yang kedua setelah Tuhan tentunya.
Cerita satu. Saya hanya ingin kuliah. Itu saja.
Cerita diawali dengan perencanaan matang saya untuk mengambil mata kuliah baru di semester lima. Seluruhnya telah saya persiapkan dengan matang, mulai dari kelas- kelas yang disinyalir dapat memberikan warna baru dalam perjalanan akademik saya, dosen- dosen yang ramah dan tentu menarik untuk disimak, hingga menghindari dosen globalonia yang telah masuk daftar hitam kelas yang tidak akan saya ambil di semester berikutnya. Setelah perencanaan yang begitu matang, delapan mata kuliah siap saya ambil untuk semster lima nanti. Enam belas Agustus. Dinihari pukul 00.15, bagian akademik mengumumkan bahwa pada tepat waktu inilah portal akademik akan resmi membuka masa pengisian rencana studi mahasiswa secara on line. Serempak seluruh mahasiswa bersiap-siaga, demi mendapatkan kelas yang diimpikan tanpa harus berebut atau bahkan kecewa karena kuota habis. Hal ini yang menjadi ciri khas periode KRS. Selalu berulang polanya setiap tahunnya. Kami berharap pihak universitas melakukan perbaikan di berbagai sisi, sehingga keluhan- keluhan mahasiswa pada tahun lalu didengar dan dievaluasi menjadi perbaikan total semester ini.
Ternyata tidak.
Saya dan beberapa rekan mulai panik ketika mendapati portal akademik tidak dapat diakses sama sekali. Selalu muncul berbagai angka- angka mistis ketika kami memasukkan alamat web tujuan, kemudian layar komputer kami berubah menjadi tulisan- tulisan aneh yang menandakan situs tersebut tidak dapat diakses. yang mengherankan, beberapa rekan lainnya berhasil mengakses dan bahkan berhasil mendapatkan kelas yang mereka inginkan tanpa hambatan sama sekali. Kami mulai panik. Menghujat dan memaki. Ratusan komplain bertebaran memenuhi berbagai media yang mungkin. Mulai dari jejaring portal, jejaring sosial, hingga komplain langsung yang dittujukan oleh teman- teman yang berada di sekitar kampus. Kami tidak tidur. Kami seperti mayat hidup yang seharian dan semalam suntuk memandangi layar komputer, memandangi layar telepon selular, berharap keajaiban segera datang. Beberapa jam setelah komplain secara langsung disampaikan oleh rekan- rekan kami, muncullah kabar bahwa server memang dnyatakan rusak.
Kami terkejut. Terlebih karena fakta ini bahkan tidak diberitahukan kepada mahasiswa, yang bahkan sudah sejak awal mengira portal akan baik- baik saja. Terlebih kuota kelas semakin berkurang, tandanya selalu ada mahasiswa yang berhasil mengakses portal tersebut. Kami panik bukan main. Beberapa rekan bahkan berkata bahwa nilai puasa mereka dipertanyakan karena adanya insiden ini. Tak mengherankan bla ada yang berbicara demikian. Makian dan hujatan tak lagi terperi dilontarkan di sana- sini, memenuhi pikiran dan kegundahan hati setiap mahasiswa yang tak beruntung seperti kami. Alangkah beratnya. Namun bagaimana lagi. Hanya itulah yang bisa kami lakukan. Selain opsi lan yang memang cukup radikal, seperti misalnya membawa tabung gas elpiji 3 kilogram dan meledakkan kampus kami. Ah, itu hanya sekelibat pikiran yang muncul di tengah deraan kegalauan kami yang tak tertahankan lagi.
Kami tidak main-main soal masa depan kami.
Mata kuliah benar- benar menentukan proyeksi masa depan kami. Fokus dan kecenderungan perilaku kami dibentuk dari awal menyiapkan pengaruh apa yang akan kami serap. Pengaruh apa yang akan mengindoktrinasi hari-hari kami melalui ceramah dan tugas tugas kelas. Teori dan konsepsi apa yang akan kami pakai untuk menganalisa setiap fenomena hubungan internasional yang menjadi fokus kami, atau saya khususnya.
Beberapa jam kemudian kami bisa mengakses dan memilih mata kuliah. Namun ketika dilakukan input data, situs tersebut kembali tak mau diajak bekerjasama. Tak bisa menghitung dia rupanya. Kami memasukkan 24 SKS, ia katakan 87 SKS. Kami benar- benar tak tahu lagi harus bagaimana. Padahal hari itu bertepatan dengan hari kemerdekaan negara kita. Kami merasa belum lepas dari penjajahan seketika.
Saya lagi- lagi tidak bisa tidak memberikan seluruh perhatian saya pada situs ini. Sepertinya saya bahkan sudah lelah untuk lelah. Saya lelah untuk pasrah, kemudian pasrah saja merelakan kelelahan ini merasuk dan bertengger, selamat datang. Saya kembali tidak tidur dan menunggu. Tak ada hasil. Ia masih pula tak dapat berhitung.
18 Agustus 2010 pukul 02.05
Seorang teman meghubungi saya bahwa situs itu telah kembali normal dan bisa diakses dengan cepat. Dia bilang, jangan gunakan PC atau Laptop. Dia bilang, gunakan telepon selular. Seketika saya mengakses lewan ponsel saya, melakukan input dengan luar biasa cepatnya, dan akhirnya.....
KELAS BERHASIL DIAMBIL. 24 SKS.
Ingin pingsan saya rasanya. Saya mengeluarkan air mata. Saya kesal, mengapa harus berlebihan seperti ini. Benar- benar diluar kontrol akal sehat saya.
Sambil tersenyum saya kirimkan pesan ke teman- teman yang bernasib serupa bahwa portal sudah bisa diakses. beberapa tertidur. Kehilangan kuota. Beberapa terbangun dan tersenyum seperti saya.
Senin, 23 Agustus 2010
Mohon Maaf
Saya memohon maaf.
Untuk diri saya yang membiarkan halaman ini berhari-hari terabaikan. Berhari-hari tanpa kabar. Sulit sekali saya menjelaskan mengapa. Bahkan diri saya sendiripun tidak sanggup menjelaskan mengapa.
I just knew what 'home issue' is. So this is it?
Untuk diri saya yang membiarkan halaman ini berhari-hari terabaikan. Berhari-hari tanpa kabar. Sulit sekali saya menjelaskan mengapa. Bahkan diri saya sendiripun tidak sanggup menjelaskan mengapa.
I just knew what 'home issue' is. So this is it?
Minggu, 15 Agustus 2010
If There's Any?
If there's any amendment shall we made to our law, in specific case of people commiting adultery, that would be..
This House Would Put Capital Punishment to People Committing Adultery. Chemical castration's just not that comparable to the damage that has been made by it.
Just Saying
This House Would Put Capital Punishment to People Committing Adultery. Chemical castration's just not that comparable to the damage that has been made by it.
Just Saying
Sabtu, 14 Agustus 2010
This is GOOD
Saya dikirimi sebuah artikel menarik mengenai hukum oleh rekan saya, Skanda (tidak pakai L). Dia seorang mahasiswa hukum di NLS India, salah satu adjudicator favorit saya ketika UADC kemarin. Dia bilang ini salah satu tugas kuliahnya yang paling menarik.
Harvard Law Review
Vol. 62, No. 4, February 1949
THE CASE OF THE SPELUNCEAN EXPLORERS
by
LON L. FULLER
IN THE SUPREME COURT OF NEWGARTH, 4300
The defendants, having been indicted for the crime of murder, were convicted and sentenced to be hanged by the Court of General Instances of the County of Stowfield. They bring a petition of error before this Court. The facts sufficiently appear in the opinion of the Chief Justice.
TRUEPENNY, C. J. The four defendants are 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.
From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed that they might find the nutriment without which survival was impossible in the flesh of one of their own number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice.
Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore's turn, the dice were cast for him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions.
After the rescue of the defendants, and after they had completed a stay in a hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore. At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief Executive is apparently awaiting our disposition of this petition of error.
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." N. C. S. A. (N. S.) § 12-A. 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.
In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.
FOSTER, J. I am shocked that the Chief Justice, in an effort to escape the embarrassments of this tragic case, should have adopted, and should have proposed to his colleagues, an expedient at once so sordid and so obvious. I believe something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our Commonwealth. If this Court declares that under our law these men have committed a crime, then our law is itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of error. For us to assert that the law we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate justice.
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.
The proposition that all positive law is based on the possibility of men's coexistence has a strange sound, not because the truth it contains is strange, but simply because it is a truth so obvious and pervasive that we seldom have occasion to give words to it. Like the air we breathe, it so pervades our environment that we forget that it exists until we are suddenly deprived of it. Whatever particular objects may be sought by the various branches of our law, it is apparent on reflection that all of them are directed toward facilitating and improving men's coexistence and regulating with fairness and equity the relations of their life in common. When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force.
Had the tragic events of this case taken place a mile beyond the territorial limits of our Commonwealth, no one would pretend that our law was applicable to them. We recognize that jurisdiction rests on a territorial basis. The grounds of this principle are by no means obvious and are seldom examined. I take it that this principle is supported by an assumption that it is feasible to impose a single legal order upon a group of men only if they live together within the confines of a given area of the earth's surface. The premise that men shall coexist in a group underlies, then, the territorial principle, as it does all of law. Now I contend that a case may be removed morally from the force of a legal order, as well as geographically. If we look to the purposes of law and government, and to the premises underlying ourpositive law, these men when they made their fateful decision were as remote from our legal order as if they had been a thousand miles beyond our boundaries. Even in a physical sense, their underground prison was separated from our courts and writ-servers by a solid curtain of rock that could be removed only after the most extraordinary expenditures of time and effort.
I conclude, therefore, that at the time Roger Whetmore's life was ended by these defendants, they were, to use the quaint language of nineteenth-century writers, not in a "state of civil society" but in a "state of nature." This has the consequence 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. I have no hesitancy in saying that under those principles they were guiltless of any crime.
What these men did was done in pursuance of an agreement accepted by all of them and first proposed by Whetmore himself. Since it was apparent that their extraordinary predicament made inapplicable the usual principles that regulate men's relations with one another, it was necessary for them to draw, as it were, a new charter of government appropriate to the situation in which they found themselves.
It has from antiquity been recognized that the most basic principle of law or government is to be found in the notion of contract or agreement. Ancient thinkers, especially during the period from 1600 to 1900, used to base government itself on a supposed original social compact. Skeptics pointed out that this theory contradicted the known facts of history, and that there was no scientific evidence to support the notion that any government was ever founded in the manner supposed by the theory. Moralists replied that, if the compact was a fiction from a historical point of view, the notion of compact or agreement furnished the only ethical justification on which the powers of government, which include that of taking life, could be rested. The powers of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible.
Fortunately, our Commonwealth is not bothered by the perplexities that beset the ancients. We know as a matter of historical truth that our government was founded upon a contract or free accord of men. The archeological proof is conclusive that in the first period following the Great Spiral the survivors of that holocaust voluntarily came together and drew up a charter of government. Sophistical writers have raised questions as to the power of those remote contractors to bind future generations, but the fact remains that our government traces itself back in an unbroken line to that original charter.
If, therefore, our hangmen have the power to end men's lives, if our sheriffs have the power to put delinquent tenants in the street, if our police have the power to incarcerate the inebriated reveler, these powers find their moral justification in that original compact of our forefathers. If we can find no higher source for our legal order, what higher source should we expect these starving unfortunates to find for the order they adopted for themselves?
I believe that the line of argument I have just expounded permits of no rational answer. I realize that it will probably be received with a certain discomfort by many who read this opinion, who will be inclined to suspect that some hidden sophistry must underlie a demonstration that leads to so many unfamiliar conclusions. The source of this discomfort is, however, easy to identify. The usual conditions of human existence incline us to think of human life as an absolute value, not to be sacrificed under any circumstances. There is much that is fictitious about this conception even when it is applied to the ordinary relations of society. We have an illustration of this truth in the very case before us. Ten workmen were killed in the process of removing the rocks from the opening to the cave. Did not the engineers and government officials who directed the rescue effort know that the operations they were undertaking were dangerous and involved a serious risk to the lives of the workmen executing them? If it was proper that these ten lives should be sacrificed to save the lives of five imprisoned explorers, why then are we told it was wrong for these explorers to carry out an arrangement which would save four lives at the cost of one?
Every highway, every tunnel, every building we project involves a risk to human life. Taking these projects in the aggregate, we can calculate with some precision how many deaths the construction of them will require; statisticians can tell you the average cost in human lives of a thousand miles of a four-lane concrete highway. Yet we deliberately and knowingly incur and pay this cost on the assumption that the values obtained for those who survive outweigh the loss. If these things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which these defendants and their companion Whetmore found themselves?
This concludes the exposition of the first ground of my decision. My second ground proceeds by rejecting hypothetically all the premises on which I have so far proceeded. I concede for purposes of argument that I am wrong in saying that the situation of these men removed them from the effect of our positive law, and I assume that the Consolidated Statutes have the power to penetrate five hundred feet of rock and to impose themselves upon these starving men huddled in their underground prison.
Now it is, of course, perfectly clear that these men did an act that violates the literal wording of the statute which declares that he who "shall willfully take the life of another" is a murderer. But 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. Every proposition of positive law, whether contained in a statute or a judicial precedent, is to be interpreted reasonably, in the light of its evident purpose. This is a truth so elementary that it is hardly necessary to expatiate on it. Illustrations of its application are numberless and are to be found in every branch of the law. In Commonwealth v. Staymore the defendant was convicted under a statute making it a crime to leave one's car parked in certain areas for a period longer than two hours. The defendant had attempted to remove his car, but was prevented from doing so because the streets were obstructed by a political demonstration in which he took no part and which he had no reason to anticipate. His conviction was set aside by this Court, although his case fell squarely within the wording of the statute. Again, in Fehler v. Neegas there was before this Court for construction a statute in which the word "not" had plainly been transposed from its intended position in the final and most crucial section of the act. This transposition was contained in all the successive drafts of the act, where it was apparently overlooked by the draftsmen and sponsors of the legislation. No one was able to prove how the error came about, yet it was apparent that, taking account of the contents of the statute as a whole, an error had been made, since a literal reading of the final clause rendered it inconsistent with everything that had gone before and with the object of the enactment as stated in its preamble. This Court refused to accept a literal interpretation of the statute, and in effect rectified its language by reading the word "not" into the place where it was evidently intended to go.
The statute before us for interpretation has never been applied literally. 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. Various attempts have been made to reconcile the legal treatment of self-defense with the words of the statute, but in my opinion these are all merely ingenious sophistries. The truth is that the exception in favor of self-defense cannot be reconciled with the words of the statute, but only with its purpose.
The true reconciliation of the excuse of self-defense with the statute making it a crime to kill another is to be found in the following line of reasoning. One of the principal objects underlying any criminal legislation is that of deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say. Looking therefore to the broad purposes of criminal legislation, we may safely declare that this statute was not intended to apply to cases of self-defense.
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. If in the future any group of men ever find themselves in the tragic predicament of these defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our criminal code. Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case. The withdrawal of this situation from the effect of the statute is justified by precisely the same considerations that were applied by our predecessors in office centuries ago to the case of self-defense.
There are those who raise the cry of judicial usurpation whenever a court, after analyzing the purpose of a statute, gives to its words a meaning that is not at once apparent to the casual reader who has not studied the statute closely or examined the objectives it seeks to attain. Let me say emphatically that I accept without reservation the proposition that this Court is bound by the statutes of our Commonwealth and that it exercises its powers in subservience to the duly expressed will of the Chamber of Representatives. The line of reasoning I have applied above raises no question of fidelity to enacted law, though it may possibly raise a question of the distinction between intelligent and unintelligent fidelity. No superior wants a servant who lacks the capacity to read between the lines. The stupidest housemaid knows that when she is told "to peel the soup and skim the potatoes" her mistress does not mean what she says. She also knows that when her master tells her to "drop everything and come running" he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect the same modicum of intelligence from the judiciary. The correction of obvious legislative errors or oversights is not to supplant the legislative will, but to make that will effective.
I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime of murdering Roger Whetmore, and that the conviction should be set aside.
TATTING, J. 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.
But it is not necessary to explore these niceties further to demonstrate the absurdity of my brother's position. Mr. Justice Foster and I are the appointed judges of a court of the Commonwealth of Newgarth, sworn and empowered to administer the laws of that Commonwealth. By what authority do we resolve ourselves into a Court of Nature? If these men were indeed under the law of nature, whence comes our authority to expound and apply that law? Certainly we are not in a state of nature.
Let us look at the contents of this code of nature that my brother proposes we adopt as our own and apply to this case. What a topsy-turvy and odious code it is! It is a code in which the law of contracts is more fundamental than the law of murder. It is a code under which a man may make a valid agreement empowering his fellows to eat his own body. Under the provisions of this code, furthermore, such an agreement once made is irrevocable, and if one of the parties attempts to withdraw, the others may take the law into their own hands and enforce the contract by violence - for though my brother passes over in convenient silence the effect of Whetmore's withdrawal, this is the necessary implication of his argument.
The principles my brother expounds contain other implications that cannot be tolerated. He argues that when the defendants set upon Whetmore and killed him (we know not how, perhaps by pounding him with stones) they were only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had had concealed upon his person a revolver, and that when he saw the defendants about to slaughter him he had shot them to death in order to save his own life. My brother's reasoning applied to these facts would make Whetmore out to be a murderer, since the excuse of self-defense would have to be denied to him. If his assailants were acting rightfully in seeking to bring about his death, then of course he could no more plead the excuse that he was defending his own life than could a condemned prisoner who struck down the executioner lawfully attempting to place the noose about his neck.
All of these considerations make it impossible for me to accept the first part of my brother's argument. I can neither accept his notion that these men were under a code of nature which this Court was bound to apply to them, nor can I accept the odious and perverted rules that he would read into that code. I come now to the second part of my brother's opinion, in which he seeks to show that the defendants did not violate the provisions of N. C. S. A. (N. S.) § 12-A. Here the way, instead of being clear, becomes for me misty and ambiguous, though my brother seems unaware of the difficulties that inhere in his demonstrations.
The gist of my brother's argument may be stated in the following terms: No statute, whatever its language, should be applied in a way that contradicts its purpose. One of the purposes of any criminal statute is to deter. The application of the statute making it a crime to kill another to the peculiar facts of this case would contradict this purpose, for it is impossible to believe that the contents of the criminal code could operate in a deterrent manner on men faced with the alternative of life or death. The reasoning by which this exception is read into the statute is, my brother observes, the same as that which is applied in order to provide the excuse of self-defense.
On the face of things this demonstration seems very convincing indeed. My brother's interpretation of the rationale of the excuse of self-defense is in fact supported by a decision of this court, Commonwealth v. Parry, a precedent I happened to encounter in my research on this case. Though Commonwealth v. Parry seems generally to have been overlooked in the texts and subsequent decisions, it supports unambiguously the interpretation my brother has put upon the excuse of self-defense.
Now let me outline briefly, however, the perplexities that assail me when I examine my brother's demonstration more closely. 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. Commonwealth v. Scape. It has also been said that its object is the rehabilitation of the wrongdoer. Commonwealth v. Makeover. Other theories have been propounded. Assuming that we must interpret a statute in the light of its purpose, what are we to do when it has many purposes or when its purposes are disputed?
A similar difficulty is presented by the fact that although there is authority for my brother's interpretation of the excuse of self-defense, there is other authority which assigns to that excuse a different rationale. Indeed, until I happened on Commonwealth v. Parry I had never heard of the explanation given by my brother. The taught doctrine of our law schools, memorized by generations of law students, runs in the following terms: The statute concerning murder requires a "willful" act. The man who acts to repel an aggressive threat to his own life does not act "willfully," but in response to an impulse deeply ingrained in human nature. I suspect that there is hardly a lawyer in this Commonwealth who is not familiar with this line of reasoning, especially since the point is a great favorite of the bar examiners.
Now the familiar explanation for the excuse of self-defense just expounded obviously cannot be applied by analogy to the facts of this case. These men acted not only "willfully" but with great deliberation and after hours of discussing what they should do. Again we encounter a forked path, with one line of reasoning leading us in one direction and another in a direction that is exactly the opposite. This perplexity is in this case compounded, as it were, for we have to set off one explanation, incorporated in a virtually unknown precedent of this Court, against another explanation, which forms a part of the taught legal tradition of our law schools, but which, so far as I know, has never been adopted in any judicial decision.
Harvard Law Review
Vol. 62, No. 4, February 1949
THE CASE OF THE SPELUNCEAN EXPLORERS
by
LON L. FULLER
IN THE SUPREME COURT OF NEWGARTH, 4300
The defendants, having been indicted for the crime of murder, were convicted and sentenced to be hanged by the Court of General Instances of the County of Stowfield. They bring a petition of error before this Court. The facts sufficiently appear in the opinion of the Chief Justice.
TRUEPENNY, C. J. The four defendants are 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.
From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed that they might find the nutriment without which survival was impossible in the flesh of one of their own number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice.
Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore's turn, the dice were cast for him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions.
After the rescue of the defendants, and after they had completed a stay in a hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore. At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief Executive is apparently awaiting our disposition of this petition of error.
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." N. C. S. A. (N. S.) § 12-A. 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.
In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.
FOSTER, J. I am shocked that the Chief Justice, in an effort to escape the embarrassments of this tragic case, should have adopted, and should have proposed to his colleagues, an expedient at once so sordid and so obvious. I believe something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our Commonwealth. If this Court declares that under our law these men have committed a crime, then our law is itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of error. For us to assert that the law we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate justice.
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.
The proposition that all positive law is based on the possibility of men's coexistence has a strange sound, not because the truth it contains is strange, but simply because it is a truth so obvious and pervasive that we seldom have occasion to give words to it. Like the air we breathe, it so pervades our environment that we forget that it exists until we are suddenly deprived of it. Whatever particular objects may be sought by the various branches of our law, it is apparent on reflection that all of them are directed toward facilitating and improving men's coexistence and regulating with fairness and equity the relations of their life in common. When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force.
Had the tragic events of this case taken place a mile beyond the territorial limits of our Commonwealth, no one would pretend that our law was applicable to them. We recognize that jurisdiction rests on a territorial basis. The grounds of this principle are by no means obvious and are seldom examined. I take it that this principle is supported by an assumption that it is feasible to impose a single legal order upon a group of men only if they live together within the confines of a given area of the earth's surface. The premise that men shall coexist in a group underlies, then, the territorial principle, as it does all of law. Now I contend that a case may be removed morally from the force of a legal order, as well as geographically. If we look to the purposes of law and government, and to the premises underlying ourpositive law, these men when they made their fateful decision were as remote from our legal order as if they had been a thousand miles beyond our boundaries. Even in a physical sense, their underground prison was separated from our courts and writ-servers by a solid curtain of rock that could be removed only after the most extraordinary expenditures of time and effort.
I conclude, therefore, that at the time Roger Whetmore's life was ended by these defendants, they were, to use the quaint language of nineteenth-century writers, not in a "state of civil society" but in a "state of nature." This has the consequence 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. I have no hesitancy in saying that under those principles they were guiltless of any crime.
What these men did was done in pursuance of an agreement accepted by all of them and first proposed by Whetmore himself. Since it was apparent that their extraordinary predicament made inapplicable the usual principles that regulate men's relations with one another, it was necessary for them to draw, as it were, a new charter of government appropriate to the situation in which they found themselves.
It has from antiquity been recognized that the most basic principle of law or government is to be found in the notion of contract or agreement. Ancient thinkers, especially during the period from 1600 to 1900, used to base government itself on a supposed original social compact. Skeptics pointed out that this theory contradicted the known facts of history, and that there was no scientific evidence to support the notion that any government was ever founded in the manner supposed by the theory. Moralists replied that, if the compact was a fiction from a historical point of view, the notion of compact or agreement furnished the only ethical justification on which the powers of government, which include that of taking life, could be rested. The powers of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible.
Fortunately, our Commonwealth is not bothered by the perplexities that beset the ancients. We know as a matter of historical truth that our government was founded upon a contract or free accord of men. The archeological proof is conclusive that in the first period following the Great Spiral the survivors of that holocaust voluntarily came together and drew up a charter of government. Sophistical writers have raised questions as to the power of those remote contractors to bind future generations, but the fact remains that our government traces itself back in an unbroken line to that original charter.
If, therefore, our hangmen have the power to end men's lives, if our sheriffs have the power to put delinquent tenants in the street, if our police have the power to incarcerate the inebriated reveler, these powers find their moral justification in that original compact of our forefathers. If we can find no higher source for our legal order, what higher source should we expect these starving unfortunates to find for the order they adopted for themselves?
I believe that the line of argument I have just expounded permits of no rational answer. I realize that it will probably be received with a certain discomfort by many who read this opinion, who will be inclined to suspect that some hidden sophistry must underlie a demonstration that leads to so many unfamiliar conclusions. The source of this discomfort is, however, easy to identify. The usual conditions of human existence incline us to think of human life as an absolute value, not to be sacrificed under any circumstances. There is much that is fictitious about this conception even when it is applied to the ordinary relations of society. We have an illustration of this truth in the very case before us. Ten workmen were killed in the process of removing the rocks from the opening to the cave. Did not the engineers and government officials who directed the rescue effort know that the operations they were undertaking were dangerous and involved a serious risk to the lives of the workmen executing them? If it was proper that these ten lives should be sacrificed to save the lives of five imprisoned explorers, why then are we told it was wrong for these explorers to carry out an arrangement which would save four lives at the cost of one?
Every highway, every tunnel, every building we project involves a risk to human life. Taking these projects in the aggregate, we can calculate with some precision how many deaths the construction of them will require; statisticians can tell you the average cost in human lives of a thousand miles of a four-lane concrete highway. Yet we deliberately and knowingly incur and pay this cost on the assumption that the values obtained for those who survive outweigh the loss. If these things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which these defendants and their companion Whetmore found themselves?
This concludes the exposition of the first ground of my decision. My second ground proceeds by rejecting hypothetically all the premises on which I have so far proceeded. I concede for purposes of argument that I am wrong in saying that the situation of these men removed them from the effect of our positive law, and I assume that the Consolidated Statutes have the power to penetrate five hundred feet of rock and to impose themselves upon these starving men huddled in their underground prison.
Now it is, of course, perfectly clear that these men did an act that violates the literal wording of the statute which declares that he who "shall willfully take the life of another" is a murderer. But 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. Every proposition of positive law, whether contained in a statute or a judicial precedent, is to be interpreted reasonably, in the light of its evident purpose. This is a truth so elementary that it is hardly necessary to expatiate on it. Illustrations of its application are numberless and are to be found in every branch of the law. In Commonwealth v. Staymore the defendant was convicted under a statute making it a crime to leave one's car parked in certain areas for a period longer than two hours. The defendant had attempted to remove his car, but was prevented from doing so because the streets were obstructed by a political demonstration in which he took no part and which he had no reason to anticipate. His conviction was set aside by this Court, although his case fell squarely within the wording of the statute. Again, in Fehler v. Neegas there was before this Court for construction a statute in which the word "not" had plainly been transposed from its intended position in the final and most crucial section of the act. This transposition was contained in all the successive drafts of the act, where it was apparently overlooked by the draftsmen and sponsors of the legislation. No one was able to prove how the error came about, yet it was apparent that, taking account of the contents of the statute as a whole, an error had been made, since a literal reading of the final clause rendered it inconsistent with everything that had gone before and with the object of the enactment as stated in its preamble. This Court refused to accept a literal interpretation of the statute, and in effect rectified its language by reading the word "not" into the place where it was evidently intended to go.
The statute before us for interpretation has never been applied literally. 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. Various attempts have been made to reconcile the legal treatment of self-defense with the words of the statute, but in my opinion these are all merely ingenious sophistries. The truth is that the exception in favor of self-defense cannot be reconciled with the words of the statute, but only with its purpose.
The true reconciliation of the excuse of self-defense with the statute making it a crime to kill another is to be found in the following line of reasoning. One of the principal objects underlying any criminal legislation is that of deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say. Looking therefore to the broad purposes of criminal legislation, we may safely declare that this statute was not intended to apply to cases of self-defense.
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. If in the future any group of men ever find themselves in the tragic predicament of these defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our criminal code. Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case. The withdrawal of this situation from the effect of the statute is justified by precisely the same considerations that were applied by our predecessors in office centuries ago to the case of self-defense.
There are those who raise the cry of judicial usurpation whenever a court, after analyzing the purpose of a statute, gives to its words a meaning that is not at once apparent to the casual reader who has not studied the statute closely or examined the objectives it seeks to attain. Let me say emphatically that I accept without reservation the proposition that this Court is bound by the statutes of our Commonwealth and that it exercises its powers in subservience to the duly expressed will of the Chamber of Representatives. The line of reasoning I have applied above raises no question of fidelity to enacted law, though it may possibly raise a question of the distinction between intelligent and unintelligent fidelity. No superior wants a servant who lacks the capacity to read between the lines. The stupidest housemaid knows that when she is told "to peel the soup and skim the potatoes" her mistress does not mean what she says. She also knows that when her master tells her to "drop everything and come running" he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect the same modicum of intelligence from the judiciary. The correction of obvious legislative errors or oversights is not to supplant the legislative will, but to make that will effective.
I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime of murdering Roger Whetmore, and that the conviction should be set aside.
TATTING, J. 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.
But it is not necessary to explore these niceties further to demonstrate the absurdity of my brother's position. Mr. Justice Foster and I are the appointed judges of a court of the Commonwealth of Newgarth, sworn and empowered to administer the laws of that Commonwealth. By what authority do we resolve ourselves into a Court of Nature? If these men were indeed under the law of nature, whence comes our authority to expound and apply that law? Certainly we are not in a state of nature.
Let us look at the contents of this code of nature that my brother proposes we adopt as our own and apply to this case. What a topsy-turvy and odious code it is! It is a code in which the law of contracts is more fundamental than the law of murder. It is a code under which a man may make a valid agreement empowering his fellows to eat his own body. Under the provisions of this code, furthermore, such an agreement once made is irrevocable, and if one of the parties attempts to withdraw, the others may take the law into their own hands and enforce the contract by violence - for though my brother passes over in convenient silence the effect of Whetmore's withdrawal, this is the necessary implication of his argument.
The principles my brother expounds contain other implications that cannot be tolerated. He argues that when the defendants set upon Whetmore and killed him (we know not how, perhaps by pounding him with stones) they were only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had had concealed upon his person a revolver, and that when he saw the defendants about to slaughter him he had shot them to death in order to save his own life. My brother's reasoning applied to these facts would make Whetmore out to be a murderer, since the excuse of self-defense would have to be denied to him. If his assailants were acting rightfully in seeking to bring about his death, then of course he could no more plead the excuse that he was defending his own life than could a condemned prisoner who struck down the executioner lawfully attempting to place the noose about his neck.
All of these considerations make it impossible for me to accept the first part of my brother's argument. I can neither accept his notion that these men were under a code of nature which this Court was bound to apply to them, nor can I accept the odious and perverted rules that he would read into that code. I come now to the second part of my brother's opinion, in which he seeks to show that the defendants did not violate the provisions of N. C. S. A. (N. S.) § 12-A. Here the way, instead of being clear, becomes for me misty and ambiguous, though my brother seems unaware of the difficulties that inhere in his demonstrations.
The gist of my brother's argument may be stated in the following terms: No statute, whatever its language, should be applied in a way that contradicts its purpose. One of the purposes of any criminal statute is to deter. The application of the statute making it a crime to kill another to the peculiar facts of this case would contradict this purpose, for it is impossible to believe that the contents of the criminal code could operate in a deterrent manner on men faced with the alternative of life or death. The reasoning by which this exception is read into the statute is, my brother observes, the same as that which is applied in order to provide the excuse of self-defense.
On the face of things this demonstration seems very convincing indeed. My brother's interpretation of the rationale of the excuse of self-defense is in fact supported by a decision of this court, Commonwealth v. Parry, a precedent I happened to encounter in my research on this case. Though Commonwealth v. Parry seems generally to have been overlooked in the texts and subsequent decisions, it supports unambiguously the interpretation my brother has put upon the excuse of self-defense.
Now let me outline briefly, however, the perplexities that assail me when I examine my brother's demonstration more closely. 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. Commonwealth v. Scape. It has also been said that its object is the rehabilitation of the wrongdoer. Commonwealth v. Makeover. Other theories have been propounded. Assuming that we must interpret a statute in the light of its purpose, what are we to do when it has many purposes or when its purposes are disputed?
A similar difficulty is presented by the fact that although there is authority for my brother's interpretation of the excuse of self-defense, there is other authority which assigns to that excuse a different rationale. Indeed, until I happened on Commonwealth v. Parry I had never heard of the explanation given by my brother. The taught doctrine of our law schools, memorized by generations of law students, runs in the following terms: The statute concerning murder requires a "willful" act. The man who acts to repel an aggressive threat to his own life does not act "willfully," but in response to an impulse deeply ingrained in human nature. I suspect that there is hardly a lawyer in this Commonwealth who is not familiar with this line of reasoning, especially since the point is a great favorite of the bar examiners.
Now the familiar explanation for the excuse of self-defense just expounded obviously cannot be applied by analogy to the facts of this case. These men acted not only "willfully" but with great deliberation and after hours of discussing what they should do. Again we encounter a forked path, with one line of reasoning leading us in one direction and another in a direction that is exactly the opposite. This perplexity is in this case compounded, as it were, for we have to set off one explanation, incorporated in a virtually unknown precedent of this Court, against another explanation, which forms a part of the taught legal tradition of our law schools, but which, so far as I know, has never been adopted in any judicial decision.
Jumat, 13 Agustus 2010
TGIF 13
Thank God It's Friday 13!
I never been into horoscope. Literally.
But today's daily horoscope is something.
Be more forgiving of yourself today, Scorpio. You always expect perfection, and usually that's what you accomplish. But perfectionism has its price. If you aren't totally pleased with the way you handle every challenge you face this morning and afternoon, don't obsess over what went wrong. Instead, focus on what you did well, and rest assured there will be a lot of it. Tonight, when you go over your day in your mind, think about the high points, not the low points. It' better to fall asleep with a sense of accomplishment rather than thinking about any perceived failures.
I never been into horoscope. Literally.
But today's daily horoscope is something.
Be more forgiving of yourself today, Scorpio. You always expect perfection, and usually that's what you accomplish. But perfectionism has its price. If you aren't totally pleased with the way you handle every challenge you face this morning and afternoon, don't obsess over what went wrong. Instead, focus on what you did well, and rest assured there will be a lot of it. Tonight, when you go over your day in your mind, think about the high points, not the low points. It' better to fall asleep with a sense of accomplishment rather than thinking about any perceived failures.
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