This is just a quick curiosity thing, really. I’m working on another trolley problem activity for my Philosophy Experiments web site. (The original trolley problem activity is here.)
Anyway, I’ve been messing around with Judith Jarvis Thomson’s “Bystander at the Switch” scenario:
In that case you have been strolling by the trolley track, and you can see the situation at a glance: The driver saw the five on the track ahead, he stamped on the brakes, the brakes failed, so he fainted. What to do? Well, here is the switch, which you can throw, thereby turning the trolley yourself. Of course you will kill one if you do. But I should think you may turn it all the same.
I tend to agree that you may turn the trolley. But I’m curious about the legal situation here. If you turn the trolley, would you then be guilty of murder (i.e., in terms of the law)?
Judith Jarvis Thomson introduces the Bystander at the Switch scenario to illustrate the difference between “letting die” (i.e., if you just allow the trolley to continue so that it squashes the five workmen on the track) and “killing” (i.e., if you turn the trolley, thereby killing one person – albeit you save the lives of the five on the track).
So does something like the doctrine of double effect come into play here so that you wouldn’t be guilty of murder in this situation? Has this been established in case law or something?
Edit: Courtesy of John in the comments below, the legal defence has to do with “Necessity”. See:
http://en.wikipedia.org/wiki/Necessity
http://en.wikipedia.org/wiki/Necessity_in_English_law
And John’s comment here: http://blog.talkingphilosophy.com/?p=3677#comment-39938
http://en.wikipedia.org/wiki/Necessity
Thanks! Interesting. Especially that it doesn’t exist in English law, for example (I presume that means the UK, etc).
I wonder whether it would work for the Trolley Problem. It says something about there having to be “no reasonable alternative”.
At least some people would argue that doing nothing in the Bystander situation is perfectly reasonable (Judith Jarvis Thomson talks about turning the trolley being “morally permissible” precisely because she’s nervous of the stronger claim that it is obligatory).
“Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when that conduct is not excused under some other more specific provision of law such as self defense. ” This quite clearly falls into the trolley car problem.
I would read this as being a legitimate defense inasmuch as it prevents a reasonable harm. Doing nothing would cause a lesser harm. Therefore, in the trolley car problem you pose the choice is for a lesser harm. There is not reasonable alternative (such as brakes).
As you state English law is the law of England and Wales. However, wikipedia is not always the most accurate;) Compare to http://en.wikipedia.org/wiki/Necessity_in_English_law. While it theoretically might not be used for murder in practice there is a lot of historical precedent.
Note that the necessity defense is a legal *defense*. It is similar to any other legal defense in that it is not an obligation but a justification. Compare to the insanity defense which is generally not considered an obligation to commit a crime
This of course is perfectly compatible with the notion of morally permissible. In fact, they are precisely the same thing albeit in different terminology.
Ah, got it – so it’s no reasonable alternative way of preventing the greater harm, not no reasonable alternative to preventing the greater harm.
The point about permissibility was just that had it meant the latter, then the fact that the act of switching is permissible rather than obligatory suggests that doing nothing might be considered reasonable (because in the absence of obligation, it would be reasonable to do nothing).
But that’s not relevant now!
I’ve actually read the Regina v. Dudley & Stephens ruling mentioned in the English Law bit. It was beautifully put together, albeit rather tough-minded, I felt (and, if I remember correctly, Dudley and Stephens’ sentence was commuted or something).
Hi Jeremy,
If I understand the doctrine of double effect properly:
I am not guilty of murder if I throw the switch thus saving lives if I didn’t know killing someone would happen directly as a result of my action. But, I would be considered guilty if if I did know the effect would be to kill a person. So it’s a matter of knowingly causing the death of someone that counts, i.e. intent.
Hi Gra
Ah, I don’t think that’s the principle of double effect. Or rather – it’s not a matter of *knowing*. It has to do with intent.
In other words, you can know that doing x will result in harm y, but so long as your *intent* is not to cause harm y, and harm y is not integral to your plan x, then you’re okay by the doctrine of double effect.
So, for example, you could give a dose of morphine which you had some reason to suppose might result in somebody’s death, so long as your intent in giving the morphine, was to reduce pain.
I think that’s right, though I could be wrong (I’m not a legal scholar).
Jeremy,
According to the Stanford EP
” . . . it is permissible to cause such a harm as a side effect (or “double effect”) of bringing about a good result even though it would not be permissible to cause such a harm as a means to bringing about the same good end.”
The difference is “side effect” as opposed to “means.” I read “side effect” as something that happens but not what you intended whereas “means” as part of the plan in reaching an end. So if the person at the switch knows by taking action it will cause the death of someone, that’s the means being used, and that’s murder.
In the morphine example the person is not acting with the knowledge that the dose will kill someone, so supposedly is innocent. Of course, this second case I think is open to argumentation.
Hi Gra
“So if the person at the switch knows by taking action it will cause the death of someone, that’s the means being used, and that’s murder.”
Ah, well, Judith Jarvis Thomson explicitly rejects that analysis in her article in the “Yale Law Journal”.
She argues that what shows that the person who will be killed if you turn the trolley is not part of the means being used is the fact that if they blink out of existence just as the trolley is turned, then the plan to save the five workmen won’t be affected. They’ll still be saved. (In other words, the plan doesn’t require the presence of the other workman on the track.)
She constructs a “loop back” version of the thought experiment – where the single person being killed has to remain on the track for the 5 people to be saved – in order to draw out the difference.
She seems to think that it would still be morally permissible to turn the trolley in the loop back scenario, but I suspect – for the reason you give – that it would probably be illegal. (Obviously I’m not sure!)
If you have access to JStor, you can read her article here:
http://www.jstor.org/pss/796133
Jeremy,
Dang! I don’t have access to JStor.
This was getting exciting.
I’m not sure what “blink out of existence” really means, unless simply denying the person on the track exists, in which case, it’s simply lying.
Hi
The “blinks out” thing is just a way of determining whether the single person on the track is a central part of the plan to save the five people.
In the bystander scenario – and indeed in the standard trolley problem – Thomson argues that they’re not, and that you can see this is the case by imagining what would happen if they weren’t on the track. The plan would still work if the single person wasn’t there. All that’s required is that the trolley is turned.
In contrast, imagine there’s a fat person on top of a bridge, and you know that by throwing the person off the bridge in front of the trolley, you can stop the trolley running into the five people. In that scenario (which Thomson also talks about), the fat person is fundamental to the plan. If he’s not on the bridge, if you don’t throw him off the bridge, then your plan fails.
Hi Jeremy,
I agree with the fat person scenario outcome as you describe it.
And the new way (for me) of looking at the argument for the switched trolley is clear but disturbing. It sounds like, in general, if I do harm as a result of some act of mine and I’m aware of the harm that will be done, I can justify it on the same grounds you give for the switch problem, viz. the harm caused was not instrumental to performing the act.
Hi Gra – Precisely, the argument is that even if you’re aware that you’re going to do harm, so long as the harm is not integral to the act (i.e., it’s incidental), and so long as the good that comes of the act outweighs the harm, then the principle of double-effect justifies your act.
It is a disturbing thought. I’m not sure I buy the argument.
Hi Jeremy,
Besides the problem being reduced to one of Utilitarianism (I think) there are too many ways it could go wrong with the argument as presented.
I’ll give you one and then I’ll try to quit:
Two atomic bombs were dropped on Japan for the purpose of ending WWII which they probably did, thus saving many, many lives and killing many, many lives. To use the argument in question I think would be very questionable and the height of insensitivity.
Anyway Jeremy, this was fun. Wish I could read that JStor.
Gra, try here:
http://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/thomsonTROLLEY.pdf
best,
Jim
Hey Jim,
Thanks a lot.
You mentioned being a gardener a couple of times and each time I thought of the end of Voltaire’s Candide when his little group of world-worn friends settle down to gardening as all the heaven they were going to experience. It had great influence on me, and I took up the avocation myself but, unfortunately, not successfully.
Gra,
You are most welcome.
Gardening didn’t work out for Wittgenstein either.
Cultivate your garden – it need not be literal in order to bear fruit.
Not thought about this for a while (and even less so the legal aspect) but what I think is that in a legal sense if it is permissible (i.e. not just that you’d be found not guilty) to save 5 while killing 1 then it should be equally permissible to do the opposite.
Otherwise we’re introducing a CBA into law where we are legally valuing people’s lives which immediately brings about a whole bunch of new problems (e.g. 5 prisoners versus one prison guard? 5 old people versus one infant etc. etc.)
And since no-one is going to argue that we should be able to save one by killing five then it must remain illegal to kill one to save five, albeit the merits of the case will lead a jury to not convict, im(ignorant)o.