The Speluncean Explorers and Normative Criminal Law

In his essay "The Case of the Speluncean Explorers" Fuller analyzes several theories of law by having five fictitious judges give opinions on a criminal case. The bulk of the judges' opinions deal with philosophies of law in quite abstract ways. For example, only a fraction of Justice Keen's opinion deals with the case at hand; the rest of it is a broad overview of the history and implications of what he percieves as loose judicial interpretation. I, however, feel that all five opinions overlook a critical matter: normativity as it relates to criminal law.

In the Hart-Fuller debate, one of the main issues was how fidelity to law, and consequently the normative aspects of law, can be accounted for. In criminal law, especially, normativity is important. As Holmes argues, laws must be written so that the "bad man", the amoral individual, can understand how he is to act. My understanding of this line of reasoning is that a completely amoral person, when deciding whether or not to do some specific act, may consult the law to become aware of the legality of that act.

It could be argued that not all laws are normative. For example, right-giving laws may not be. But certaily criminal laws are, as shown by the normative language of N.C.S.A. 12-A:

Whoever shall willfully take the life of another shall be punished by death.

In the Speluncean Explorers case, the defendents literally consult the law: they ask on their radio of any lawyers or judges would advise them on whether or not they should eat one of their own. When no one responds, the law has failed in its normative duty. To me, the problem with handing down a guilty verdict comes from this failure of normativity.

I'd be interested to hear about other people's take on this opinion