PHILOSOPHY OF LAW
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HAND-OUTS
SPRING 2003





Killing & Letting Die (What's the Difference?)



1. Consider the following (again):

John is the driver of a trolley, whose brakes have failed. On the track ahead of him are five people; the banks are so steep that they will not be able to get off the track in time. The track has a spur leading off to the right, and John can turn the trolley onto it. Unfortunately, there is one person on the right hand track. John can turn the trolley, killing the one; or he can refrain from turning the trolley. John elects to turn the trolley onto the right hand track, killing the one person.

Would you defend John on grounds of necessity? Why? If not, why not? In its general form, as stated in the Model Penal Code, the principle appears to involve the making of some sort of a calculation. "Harm to be avoided" has to be calculated and added up and then set against the "[harm] sought to be prevented by the law defining the offense charged." The principle itself, however, gives little guidance as to how the balance is to be struck or for that matter much guidance as to what weights to assign in the first place. John's trolley dilemma would appear to be fairly uncomplicated in this regard. It would appear to involve the weighing of the loss of five lives against the loss of just one and whatever weight we assign to the loss of a human life, it would appear that, faced with one of two alternatives, to choose the alternative where five die rather than the alternative where only one dies would do more harm than good. I say "it would appear" because the two alternatives are not, not quite, as I have laid them out. If John chooses the latter alternative over the former, he actually kills another human being, whereas if he does not turn the trolley he is letting five die. There may be only a small difference in this situation between killing and letting die, but generally we take it to be a difference that makes some moral difference. Does the moral difference between killing and letting die prompt you to give different weights to the alternatives John faces, to assign, for instance, a greater weight to the harm John would cause by turning the trolley onto the right hand track? Does the moral difference in this case between killing and letting die make enough of a difference to effect how, in applying the necessity principle, the balance of relative harms is struck?


2. Consider two variations on another hypothetical:

A. John hates Alice and wants her dead. John puts cleaning fluid in Alice's cocoa and Alice dies.

B. John hates Alice and wants her dead. Alice inadvertently puts cleaning fluid in her cocoa, mistaking it for liquid marshmellow fluff. John has the antidote to cleaning fluid, but does not tell Alice. Alice dies.


In (A) John Kills Alice, but in (B) he merely lets her die. There does not seem to be much to choose between the two scenarios, however. John seems just as bad in (B) as he is in (A), no?


Duty to refrain vs. a failure to act

Each of us is familiar of circumstances in the law where persons have a legal duty to refrain from performing certain actions that will be harmful to other persons and their property. So, for example, persons may back their car into the street from a driveway, but they have a legal duty to refrain from stepping on the gas when they see a small child in the rear-view mirror. Or I can use a sharp knife to carve the turkey, but I have a duty to refrain from plunging it into the back of your neck. But what of situations, vide John in (B) above, where the failure to act constitutes a breach of duty? Does the law admit that there may be situations where omitting to do something for someone as opposed to doing something to him is a breach of duty and that a failure in such a case to act as one's duty obliges one to act can cause harm or injury to another?










Prepared: February 4, 2003 - 5:02:29 PM
Edited and Updated, February 5, 2003


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