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Necessary Evil: Justification, Excuse or Pardon?

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Abstract

The problem of necessary evil is a sub-class of the problem of moral dilemmas. In cases of genuine moral dilemmas the agent cannot avoid doing evil whatever he does. In some cases of genuine moral dilemmas, the options facing the agent are incommensurable. But in some other cases of genuine moral dilemmas, though wrong doing is inescapable, there is a rationally best course of action. These are cases of necessary evil. There are several views regarding the doing of necessary evil. On the closure view it is never necessary to do what is evil. This is the view of some utilitarians and of Kant. Then there are people who believe that it is sometimes necessary to do evil. Of these some (like John Gardner) believe that evil in such cases is justified even though it remains an evil; while there are others (like Gandhi) who believe that evil in such cases can never be justified but it can at best be excused or pardoned. Some even think that in some extreme cases the individual who does evil (even if it is the lesser evil) should be punished even though the individual could not avoid doing evil whatever he chose. The paper stresses the significance of the distinction between justified wrong doing, pardonable wrong doing, and excusable wrong doing.

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Notes

  1. This is consistent with the view that it may be necessary to do what is a prima facie wrong or evil; when there is a prima facie evil, there is a presumption of evil doing and if it has to be done, say to avoid a greater evil, the presumption is defeated.

  2. ‘A justification of wrong doing, as I explained it, is a cancelling permission. It does not cancel the reason not to commit the wrong-it only defeats that reason-but it does cancel the reason’s mandatariness. This proposal contradicts the closure view but preserves an important aspect of it’ (Gardner 2007, p. 255).

  3. ‘But since duty and obligation are concepts that express the objective practical necessity of certain actions and two rules opposed to each other cannot be necessary at the same time, if it is a duty to act in accordance with one rule to act in accordance with the opposite rule is not a duty but even contrary to duty. So a collision of duties and obligations is inconceivable. However, a subject may have two grounds of obligation, one or the other of which is not sufficient to put him under obligation…so that one of them is not a duty. When two such grounds conflict with each other practical philosophy says not that the stronger obligation takes precedence…but that the stronger ground of obligation prevails’ (Kant 1996, pp. 378–379). Also, genuine moral dilemmas (at any rate where there is necessary evil) pose a problem for the Kantian doctrine that ‘ought’ implies ‘can’. On that doctrine one ought not to do evil implies that one can avoid doing evil. But if there are cases of necessary evil how does one avoid doing evil?

  4. ‘…we cheerfully subscribe to, or have the grace to be torn between, simply disparate ideals-why must there be a conceivable amalgam, the Good Life for Man?’ (Austin 1961, p. 151).

  5. ‘Life according to the Christian religion is a progress toward the divine perfection…Increase of life according to this consists in nothing but the quickening of the progress toward perfection. And therefore the progress toward perfection of the publican Zaccheus, of the woman who was a sinner, and of the robber on the cross, implies a higher degree of life than the stagnant righteousness of the Pharisee’ (Tolstoy 1986, p. 88).

  6. ‘I have never permitted violence. I have simply stated two grades of bravery and cowardice. The only thing lawful is non-violence….Though violence is not lawful, when it is offered in self-defence or in the defence of the defenceless, it is an act of bravery far better than cowardly submission’ (Gandhi 1986, p. 344). See also Gruzalski (2001).

  7. ‘Only it (violence) may be regarded as excusable’ (Gandhi 1986, p. 307).

  8. ‘Even in proved cases of necessity, violence cannot be defended on principle. It may be defended on grounds of expedience’ (Gandhi 1986, p. 307).

  9. Machiavelli is associated with the view that the end justifies the means. So it is interesting to note that Isaiah. Berlin while expounding Machiavelli’s views says: ‘The end is always the same: a state conceived after the analogy of Periclean Athens, or Sparta, but above all the Roman Republic. Such an end, for which men naturally crave … "excuses" any means’ (Berlin 1992, p. 222).

  10. Aristotle (1925, pp. 24–25) uses the language of pardon when discussing the conditions of responsibility.

  11. ‘A moderate perfection loses its power of influencing men’s hearts’ (Tolstoy 2006, p. 88).

  12. This is because the closure theorist could say that though the obligation or the duty gets extinguished the grounds of the obligation or duty need not get erased. Thus in the example where one steals medicine to save a life, on the closure strategy one is not violating any duty or obligation, morally speaking. The fact that a person owns the medicine, is the reason why it is normally wrong to take away his medicine without his consent. When one steals in a medical emergency one is not (on the closure strategy) doing any wrong. But the fact that the medicine belonged to the person can still provide the reason why we should compensate him. On the view that rejects the closure strategy, it is arguable that the compensation should be greater because there is an additional reason for compensation, namely a wrong been done to the victim.

  13. In a similar vein, some moral philosophers have distinguished ‘ought’ from ‘must’ and argued that ‘ought’ can lose its mandatory force without ceasing to be an ‘ought’ (Gowans 1987).

  14. This is what happened in Dudley and Stephens, though it is arguable that in that case some of the wrong doing was not necessary.

  15. On Gandhi’s views, violence even in self defence is not permissible and is at best pardonable. But he can grant that violence in self defence against an unjust aggressor is less bad than violence against an innocent person.

  16. Almost all the thinkers I have discussed in this paper who believe that there cases of necessary evil, tend to assume that their method of rejecting the closure view is the only plausible one. We saw that Herbert Morris and Frankena commend something like the justified wrong doing view without even considering the view that the injustices may be excused rather than justified. And Austin distinguished excuses from justification in a way which ruled out justified wrong doing! Gandhi, Hart and Austin all rule out the justified wrong doing view because they assume (unlike Gardner) that wrong doing (as long as it remains wrong doing) is impermissible and therefore never justifiable.

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Acknowledgments

This paper owes much to the stimulus provided by John Gardner’s Offences and Defences. A shorter version of this paper was delivered as the N. K. Sen Memorial Lecture at the Department of Philosophy, Delhi University, March 2010. I would also like to thank Richard Sorabji and the referees of Criminal Law and Philosophy for very helpful suggestions.

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Correspondence to Vinit Haksar.

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Haksar, V. Necessary Evil: Justification, Excuse or Pardon?. Criminal Law, Philosophy 5, 333–347 (2011). https://doi.org/10.1007/s11572-010-9104-7

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