Commentary. Recall the Model Penal Code definition of "necessity:" "Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that . . . the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged." The latter half of the Penal Code's definition would appear to require, in addition to the considerations noted above, some sort of calculation of pros and cons, costs and benefits, gains and losses. Here it would appear that John made the "right" decision. More lives were saved than lost. Four more people are alive today than would be alive if John had not acted as he did and turned the trolley onto the side-track. But he did kill another human being. Can the necessity defense justify killing? What do you think?
If you were the judge, would you acquit John on the grounds of necessity? Not only has John ‹ in this scenario ‹ taken the law into his own hands, he has decided who should live and who should die. Of course, John, we can safely assume, did not personally know any of the workmen. He did not decide ‹ strictly speaking ‹ who should live, but how many. He decided that it was "better" that five should live rather than that one should die. But when it comes to life and death, should numbers count?
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. But if we examine John's choices more fully, we will notice that they are not quite equivalent. If John chooses to turn the trolley onto the side-track, he actually kills another human being, whereas if he does not turn the trolley, he is letting five die. Does the 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 difference between killing and letting die make enough of a difference to effect how, in applying the necessity principle, the balance of relative harms sould be struck? Or is it a difference that makes no difference. In thinking about your answer, consider the following two scenarios:
(1) John hates Alice and wants her dead. John puts cleaning fluid in Alice's cocoa and Alice dies.
(2) 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 (1) John kills Alice; in (2) he lets her die. There does not seem to be much of a difference between the two scenarios. John seems just as bad in (1) as he is in (2), no? What do you think? Now consider the next puzzler.
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