Abstract
There are many subtle ways that the choice between competing visions of the composition of the public good will affect the arguments that we put forth to secure the assent of an ideal or universal audience. Even an audience that accepts what Jean Dabin called the “prevalence of the individual human person over every collective”1 is forced to recognize that there are times when every society feels obliged to accept, and indeed even require, the sacrifice of some individuals for the greater good of society. Times of war and natural disaster immediately come to mind. It probably takes no greater feat of imagination than is necessary to envision a world organized around the hypothetical agreement that Rawls uses to construct his just society to assert that the members of any society who accept its legitimacy implicitly promise to preserve that society in the face of its enemies or of natural disasters. As Aristotle said, man is by nature a political animal for whom life in an organized political community is the natural condition.2 Certainly, in most societies, most people seem to have acknowledged an obligation to preserve their society even if, unlike professional soldiers, they have made no express promise to do so. Whether one tries to explain that sense of obligation on the basis of an implied promise or of a moral duty to make some return for the benefits bestowed by society on the individuals who constitute that society, the empirical reality is that people do, in fact, by and large accept these obligations and, more importantly, they are expected by their fellow members of society to do so.3 What justice as personified in the universal audience requires is that the individual should not be sacrificed, except in the most exigent circumstances, and that the choice of the individual to be sacrificed should be based on the most neutral criteria possible. To choose a particular military unit to be left as a hopeless rear guard, because it is the most readily available or the most able to accomplish the mission assigned to it, might be acceptable. It would not be acceptable to choose the unit to be sacrificed based on its racial composition or on the fact that it includes a large percentage of opponents of the political faction currently in control of the government. Indeed, not merely in these extreme cases, but in the allocation of all social burdens and benefits, most societies that purport to be just societies believe that benefits and burdens should not be allocated arbitrarily.
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J. Dabin, General Theory of Law § 142 (1944), reprinted in English in Legal Philosophies of Lask, Radbruch, and Dabin (K. Wilk transi. 1950). The same language appears in § 196 of the second edition, Theorie général du droit (1967), published only in French.
These questions are explored in G. Christie, On the Moral Obligation to Obey the Law, 1990 Duke L. J. 1311. As Ronald Dworkin has pointed out, among the benefits conferred by society on its members is simply the benefit of community. See R. Dworkin, Law’s Empire 167–216 (1986).
See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) and New York Times Co. v. Sullivan, 376 U.S. 254 (1964), as to defamation, and Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973) and Sidis v. F-R Publishing Co, 113 F.2d 806 (2d Cir. 1940) with regard to privacy. See also, with regard to privacy, The Florida Star v. B. J. F., 491 U.S. 524 (1989). Even English law which has retained much of the strict common-law liability for defamation has always recognized situations in which important social interests restricted the plaintiff’s right to recovery. See Horrocks v. Lowe, [1975] A.C. 135 (1974).
See White v. Chief Constable of the So. Wilts. Police, [1999] 1 All E.R. 1 (1998); Page v. Smith [1996] A.C. 153 (1995); Thing v. La Chusa, 48 Ca1.3d 644, 257 Cal. Rptr. 865 (1989); Elden v. Sheldon, 46 Cal.3d 267 (250 Cal. Rptr. 254 (1988)). The United States Supreme Court has taken an even more restrictive position in cases governed by federal laws. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).
See the discussion in In re A.C., 573 A.2d 1235 (D.C. Ct. App. 1990). The court ruled that the lower court’s ordering of a Caesarean section over the objection of the mother was improper. The court stressed that in the case before it, in which the expectant mother was terminally ill with cancer and near death, the surgical procedure could not be said in any way to contribute to her physical welfare. On the general subject, see N. Rhoden, The Judge in the Delivery Room: The Emergence of Court-Ordered Caesareans, 74 CAL. L. REV. 1951 (1986).
The state of the law on this subject is exhaustively analyzed and discussed in G. Christie, The Defense of Necessity Considered from the Legal and Moral Points of View, 48 Duke L. J. 975 (1999).
Esso Petroleum Co. v. Southport Corp., [1956] A.C. 218. See also an earlier English decision, Mouse’s Case, 12 Co. 63, 77 Eng. Rep. 1341 (K. B. 1609) cited and discussed with approval in an American case, Ploof v. Putnam 81 Vt. 471, 71 Atl. 188 (1908). For further citation to cases, see G. Christie, supra note 7, at 988–93.
See G. Robinson, Handbook of Admiralty Law in the United States 778–79 (1939).
See art. 9 of the (Brussels) Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea, September 23, 1910, 37 Stat. 1658, 1671, and art. 16 of its successor, the (London) International Convention on Salvage, April 28, 1989, Hein’s No. KAV 3169.
Southport Corp. v. Esso Petroleum Co., [1953] 2 All E.R. 1204, 1209–10 (Q.B.). For the decision in the House of Lords, see note 8, supra.
Section 228 BGB, translated in The German Civil Code § 228 (S. Goren transl. 1994).
G. Stephani et al., Droit Pénal Général 315 (15th ed. 1995).
Restatement Of Torts § 197 (1934); Restatement (Second) of Torts § 197 (1965).
For example, W. Prosser, Handbook of the Law of Torts, § 24, at 126–27 (41h ed. 1971); W. P. Keeton et al., Prosser and Keeton on the Law of Torts, § 24, at 145–48 (51h ed. 1984), F. Harper et al., 1 The Law of Torts § 1.22, at 1:84–89, § 2–43, at 2:140–42 (3d ed. by O. Gray 1996) merely set forth the Restatements’ position. R. Keeton, Conditional Fault in the Law of Torts, 72 HARV. L. REV. 401, 415–18, 427–30 (1959) generally supports the positions taken by the Restatements but is skeptical about whether a person who destroys property to save the lives of others has any obligation to pay compensation for the property destroyed. F. Bohlen, Incomplete Privilege to Inflict Intentional Invasions of Interests of Property and Personality, 39 HARV. L. REV. 307, 31819 (1926) took the position that when property is destroyed to save the lives of others, but not one’s own life, there was no obligation to pay compensation. These writers are all legal scholars. Philosophers who have considered the question seem to all have believed that compensation is owing in all circumstances when property is destroyed to save human life. See J. Coleman, RISKS AND WRONGS 285–302 (1992); J. Feinberg, Voluntary Euthanasia and the Right to Life, 7 PHIL & PUB. AFF. 93, 101–03 (1978).
Minn. 456, 124 N.W. 221 (1910).
This certainly appears to be how English courts would have viewed the situation. See River Wear Comm’rs v. Adamson, [1877] 2 A.C. 743.
There is no suggestion in Vincent that keeping the ship tied to her berth was necessary to save human life. Indeed, the case was expressly decided on the basis that the defendants were acting “for the preservation of their property.” 109 Minn. at 458, 124 N.W. at 221.
G. Fletcher, Rethinking Criminal Law § 10.2, at 777 (1978) (citing H. Jescneck, Lehrbruch des Stafrechts: Allgemeiner Teil (2d ed. 1972)).
J. Coleman, supra note 17, at 282. Coleman’s hypothetical is a simplified version of a hypothetical case, posed by Joel Feinberg, involving a backpacker who is suddenly caught in a blizzard and who breaks into an uninhabited cabin. The backpacker remains there until the storm abates, in the meantime consuming the food stored in the cabin and burning the furniture to keep warm. J. Feinberg, supra note 17, at 102.
The distinction that Coleman is using seems to have been developed by Judith Jarvis Thomson. See J. Thomson, Rights, Restitution, And Risk 33 (1986).
A classic illustration is the fairy tale, The Golden Goose,in which two brothers who refuse to share their food and drink with a hungry and thirsty old man are met with bad luck and the third brother, who does share his food and drink with the old man, is blessed with extraordinary good fortune. See THE Complete Brothers Grimm Fairy Tales 274–77 (L. Owens ed. 1981).
P. Foot, The Problem of Abortion and the Doctrine of the Double Effect, 5 Oxford Rev. 5, 8–9 (1967), reprinted in P. Foot, Virtues and Vices and other Essays in Moral Philosophy 19, 23 (1978).
J. Thomson, The Realm of Rights 176 (1990), hereinafter cited as Realm of Rights. She also discusses the “Trolley Problem” in her earlier work, Rights, Restitution and Risk (1986), hereinafter cited as Rights, Restitution And Risk, e.g., at pp. 78 and 94. There are minor verbal differences in the formulation of the core case as it appears in each of these discussions. For stylistic reasons, 1 have chosen to use one of the verbal formulations from her later book.
Among the arguments that can be made in support of the distinction are the following: In the case of acting to bring about a result, one’s active participation in the chain of events leading up to that result is causally essential. If one had chosen not to do anything, that result would not have occurred. When one simply allows something to happen, the result is the same as that which would have ensued if one had not existed. Merely allowing something to happen, furthermore, is not as morally salient as acting: if it were, one would be morally responsible for every unfortunate result one could have acted to prevent.
See,e.g., L. Alexander, Self-Defense, Justification and Excuse,22 Phil. & PUB. AFF. 53, 60 (1993); M. Costa, Another Trip on the Trolley, 25 S. J. Phil. 461 (1987); M. Costa, The Trolley Problem Revisited, 24 S. J. PHIL.437 (1986); B. Gert, Transplants and Trolleys, 53 Phil. & Phenom. Res. 173, 174 (1993); R. Hallborg, Jr., Comparing Harms: the Lesser Evil Defense and the Trolley Problem, 3 Legal Theory 291, 295 (1997); F. Kamm, Harming Some to Save Others, 57 Phil. Stud. 227, 231 (1989); M. Otsuka, Killing the Innocent in Self Defense, 27 PHIL. & PUB. AFF. 74, 75 (1994); E. Rakowski, Taking and Saving Lives, 93 Colum. L. Rev. 1063, 1065 (1993).
See J. Harris, The Survival Lottery, 50 Phil. 81, 81–87 (1975), reprinted in Killing AND Letting DIE, 257, 259–65 (B. Steinbock and A. Norcross eds. 1994),which discusses the transplant situation.
Model Penal Code and Commentaries § 3.02 (Official Draft and Revised Comments 1985), hereinafter cited as Official Model Code.
KY. Rev. Stat. Ann. § 503.030 (Banks-Baldwin 1997); Mo. Ann. Stat. § 563.026 (WEST 1979).
WIS. Stat. ANN. § 939.47 (West 1996).
See Official Model Code, § 3.02, comment 5, note 23. se N.Y. Penal Code § 35.05 (McKinney 1975).
N.Y. Penal Code § 35.05, practice commentary (McKinney 1975).
People v. Brown, 70 Misc.2d 224, 333 N.Y.S.2d 342 (1972).
Tenn. (7 Heisk.) 99 (1872).
W. White, They were Expendable 203–04 (1942).
See N. Miller, War AT SEA 507–16 (1995). There were in addition about 25,000 wounded. See G. Weinberg, A World AT Arms 868 (1994). About 2,400 bombers made emergency landings on Iwo Jima which means, if each bomber had a crew of 10, that perhaps as many as 24,000 bomber crewmen benefited from the availability of Iwo Jima. See id. at 869; Miller, supra, at 516. A realistic estimate of the tradeoff in casualties is not that simple since, if Iwo Jima were not available, some of the planes undoubtedly might have made it back to their bases in the Marianas. Many more would have taken advantage of the elaborate air-sea rescue schemes that had been established, see Weinberg, supra, at 869, including the stationing of submarines at fixed points known to the air crews. There is even some legal authority expressly recognizing the extensive authority of governmental officials to decide who shall live and who shall die. In Chandler v. Director of Pub. Prosecutions, [1964] A.C. 763 (1962), the court refused to allow nuclear disarmament demonstrators, who had been prosecuted for attempting to enter a Royal Air Force air station that was being used by nuclear-armed United States aircraft, to argue that Great Britain (and the world) would be safer if such aircraft were prevented from taking off. See id. at 774–76.
But cf L. Alexader, supra note 41, who argues that certain factors such as the “relative age of the parties,” if these factors are generalizable ex ante, might be relevant.
On May 23, 1939, in peacetime, while the United States submarine Squalus was practicing a crash dive, the main induction valves failed to close and water poured into the engine rooms. The submarine sank to the ocean floor more that 200 feet below the surface. The two engine rooms were closed off as well as the after torpedo room, entombing 26 men. The remaining 33 were eventually rescued. See C. La Vo, Back from the Deep 32–61 (1994). The Squalus ‘s travails are covered in more detail in N. Barrows, Blow All Ballast! (1941). The man who actually closed the bulkhead door was reported as saying, when rescued, “I wish to make it clear that I acted according to the requirements of my duty in closing the bulkhead door. I have the utmost sorrow for my shipmates who died, but I would not hesitate to do the same thing if similar circumstances required….” Id. at 172.
P. Rakes, Casualties on the Homefront: Scotts Run Mining Disasters During World War II, 53 W. VA. Hist. Rev. 95, 111 (1994) describes an instance in which, after the failure of a two-day attempt to extinguish a fire in a mine, the mine officials abandoned the search for a missing miner and sealed off the affected area.
Stgb art. 34, translated in The Penal Code of the Federal Republic of Germany 59 (J. Darby trans. 1987), hereinafter cited as STGB.
George Fletcher maintains that German law would not permit the taking of innocent life to save the lives of a greater number of innocents. See G. Fletcher, Rethinking Criminal Law §§ 10.2–10.2.2, at 774–88 (1978).
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, art. 2(2), at 197, U.N. Doc. A/RES/39/46 (1984), hereinafter cited as Torture Convention.
International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 7, 6 I.L.M. 368, 370, hereinafter cited as ICCPR.
The Israeli security service has apparently sought to use torture in these circumstances and indeed has, in the past, been accused of actually using some forms of what many would consider torture. See B. Gellman, Israeli First: Word `Torture’ Is Spoken: Attorney General Condemns Shaking of Arab Prisoners in Interrogation, Wash. Post, Oct. 21, 1995, at A17. Soon after this report, the question was considered by the Israeli Supreme Court. Accepting for the moment a civil-rights lawyer’s allegation that what the security services were engaged in was torture, that court was reported as having refused to uphold an injunction that had been issued by a lower court. See id. One of the judges described as “immoral” the position that a person could not be tortured when the lives of a thousand people could thereby be saved. See S. Schmemann, Israel Allows Use of Physical Force in Arab ‘s Interrogation, N. Y. TIMES, Nov. 16, 1996, § 1, at 8. More recently, however, a nine-member panel of the Israeli Supreme Court held that the routine use of physically coercive measures such as violent shaking, forcing prisoners to crouch like frogs, and shaping them in contorted positions were illegal and must immediately be stopped. The court left open what would be the case in an emergency situation when the suspect would know of a “ticking bomb.” See D. Sontag, Israeli Court Bans Most Use of Force in Interrogations, N.Y. Times Sept. 7, 1999, at Al. Article 4(1) of the Torture Convention, on the other hand as already indicated, specifically provides that the parties shall make acts of torture and all attempts to commit torture criminal offenses. It has been suggested that torture of the terrorist might be justifiable, in some instances, on the ground of self-defense. See E. Benveniste, The Role of National Courts in Preventing Torture of Suspected Terrorists, 8 Eur. J. INT’L L. 596 (1997). See also A. Enker, Duress, Self- Defence and Necessity in Israeli Law, 30 Israeli L. Rev. 188 (1996). The most compelling case would be one in which the terrorist and his interrogator are confined in a small place and both will be killed if the bomb is not discovered and disarmed.
European Convention for Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 5 Europ. T. S. 3, hereinafter cited as European Convention.
Official Model Code §§ 3.04(2)(b), 3.05. See also Restatement (Second) OF Torts §§ 65, 76 (1965).
Compare G. Fletcher, The Right and the Reasonable, 98 Harv. L. REV. 949, 971–76 (1985), with K. Greenawalt, The Perplexing Borders Between Justification and Excuse, 84 CoLum. L. REV. 1897, 1918–27 (1984). This subject is discussed at greater length in G. Christie, supra note 7, at 1034–35.
See European Convention §§ 2(1), 2(2), and 15(2) discussed in notes 76 and 77, supra, and accompanying text.
Cf. I. Kant, Foundations of the Metaphysics of Morals 54 (L. Beck transi. 1959) (1785): The practical imperative, therefore, is the following: Act so that you treat humanity, whether in your own person or in that of another, as an end and never as a means only.
As is well-known, in a later work, Kant discussed the classic case of two drowning men struggling for possession of a plank and concluded that, even if legal sanctions are pointless in that situation, “there still cannot be any necessity that will make what is unjust legal.” I. Kant The Metaphysical Elements of Justice 42 (J Ladd transI. 1965) (1797).
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Christie, G.C. (2000). Choosing between Competing Visions of the Good—the Case of Necessity. In: The Notion of an Ideal Audience in Legal Argument. Law and Philosophy Library, vol 45. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9520-9_7
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