Master 1 / English
Criminal law: the defense of necessity:
Can you ever kill somebody to save lives?
General introduction:
criminal law terminology: crime, misdemeanor, felony, charge with, to try, on trial for guilty, convict of,
sentence, prosecute, prosecutor, the State, Regina.
Part 1: Regina v. Dudley and Stephens, 1884
1. Presentation of the case:
key concepts: murder v. legal homicide, necessity, the slippery slope argument.
2. Vocabulary: match these legal terms with their definitions
prosecute, defendant, convict (verb), guilty, murder, homicide, legal homicide, precedent, trial,
common law, legal, ruling, necessity, landmark
a) To bring a criminal action against a person
b) Said about a case or court decision that has established a precedent or introduced a
significant legal concepts
c) In a criminal case, the person accused of the crime
d) All occasions where one human being, by act or omission, takes away the life of a.nother
e) Intentional taking of another person’s life, without legal justification
f) If the jury finds ‘beyond a reasonable doubt’ that someone has committed a crime, they are
said to ___________ the person of the crime.
g) a possible justification or an exculpation for breaking the law. 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.
h) Having to do with legal systems such as England and Wales, or countries which evolved from
that system.
i) A legal decision, a judgment.
j) Killing justified by necessity, justifiable homicide (ex: self defense)
k) If someone is convicted of a crime, they are found __________________.
l) Presentation of information in a court, with the object of determining whether or not a person
has broken the law (a criminal _____________) or has committed a civil wrong ( = a tort) and is
liable for damages ( a civil ________________).
m) official decision that can be used to give support to later actions or decisions.
n) allowed by law.
3. Summary of the case:
Regina v. Dudley and Stephens is a leading English criminal case famous for its holding concerning
the defense of ‘necessity’, and for its use of the ‘slippery slope’ argument in formulating its holding.
Facts of the case:
The English yacht Mignonette set sail for Sidney, Australia from Southampton, England on May 19th,
________ with a crew of four. The crew consisted of Tom Dudley, the _____________, Edwin Stephens,
Edmund Brooks and Richard Parker, the __________ boy.
On July 5th, the yacht _______ due to bad weather off the Cape of Good Hope stranding the entire
crew on a single 13 foot life___________. For ten days they survived off of two tins of turnips that the
boy had saved and whatever they could catch.
After days without food or water, Dudley proposed that Richard Parker be _________________ to feed
the others. After some convincing, they agreed to kill the cabin boy, feeding on his body for the next
four days until they were picked up by a German bark. The remaining crew were brought to Falmouth
where they were ___________________ with murder.
1 Ruling:
The initial trial was in ___________________ in front of a sympathetic jury. Although cannibalism was
not accepted practice at the time, the seafaring community was receptive to the unique perils of
being cast away at sea. Even Richard Parker’s family testified that the defendants were probably
justified in their actions.
In its verdict, the jury stated that they found all the facts of the prosecution’s case to be accurate, but
that they were unsure whether the circumstances would constitute _________________ homicide. The
question was sent to London for review.
At the Divisional Court of the Queen’s Bench Division, the panel of judges found that there was
insufficient _______________ for the killing. The judges argued that allowing an exception to murder
for certain perilous circumstances would set a dangerous precedent for the future, as courts could
interpret the decision to acquit other forms of killing. Dudley and Stephens were found
________________ and sentenced to _________________, which was later ______________________ to
six months’ imprisonment by Queen ____________________.
Today, the case is commonly studied and debated by law students in common law countries such as
the United States and the United Kingdom.
Adapted from: http://en.wikipedia.org/wiki/R_v_Dudley_and_Stephens
4. Vocabulary: What is the noun form of these words?
a)
b)
c)
d)
e)
f)
prosecute
defend
convict
guilty
threaten
weigh
5. Pronunciation: Where is the stress in the words below.
a) indict
b) plaintiff
c) accusations
d) allowed
e) criminal
f) reasonable doubt
g) information
h) commit
i) intentional
6. Questions: in groups of 2, please ask each other the following questions:
a)
b)
c)
d)
e)
f)
g)
h)
i)
In what year did the facts take place?
How many people were aboard the Mignonette? Who were they?
What were they able to take aboard the lifeboat after the ship sank?
What was the attitude of the jury in Exeter?
What is the difference between murder and legal homicide?
What did the jury in Exeter decide?
What did the court in London decide?
What happened to Dudley and Stephens?
Explain and/or give an example for a slippery slope argument?
7. The slippery slope argument:
• Definition:
The "slippery slope" argument format (also known as the "camel's nose in the tent," the "give an
inch," the "crack in the foundation", and other names) is essentially that if you make any
exceptions to a rule, or if you make rules that depend on fine distinctions, pretty soon people will
be ignoring the rule or rules (…) "If you allow exceptions to a rule, it creates a slope away from
2 the absoluteness of the rule, down which people will slide further and further until they will not
obey the rule at all." "If you give people an inch, they will take a mile" or "If you let the camel put
its nose into the tent, pretty soon the whole camel will be in your tent."
http://www.garlikov.com/philosophy/slope.htm
•
Now create your own slippery slope arguments:
a)
b)
c)
d)
If I make and exception for you, then I’ll
If we legalize marijuana, then more people will
If you give people an inch, they’ll take
Once you start gambling, you’ll
•
Video: example of a slippery slope argument in a TV commercial
http://mergy.org/2012/01/great-example-of-a-slippery-slope-argument-the-directtv-roadside-ditch-commercial/
8. Extract from the judgment: Regina v. Dudley and Stephens
Defense of necessity and use of the slippery slope argument:
We are dealing with a case of private homicide, not one
imposed upon men in the service of their Sovereign and in
the defence of their country. Now it is admitted that the
deliberate killing of this unoffending and unresisting boy
was clearly murder, unless the killing can be justified by
some well-recognised excuse admitted by the law. It is
further admitted that there was in this case no such excuse,
unless the killing was justified by what has been called
"necessity." But the temptation to the act which existed
here was not what the law has ever called necessity. Nor
is this to be regretted. Though law and morality are not the
same, and many things may be immoral which are not
necessarily illegal, yet the absolute divorce of law from
morality would be of fatal consequence; and such divorce
would follow if the temptation to murder in this case were
to be held by law an absolute defence of it. It is not so. To
preserve one's life is generally speaking a duty, but it may
be the plainest and the highest duty to sacrifice it. War is
full of instances in which it is a man's duty not to live, but to
die. The duty, in case of shipwreck, of a captain to his
crew, of the crew to the passengers, of soldiers to women
and children, as in the noble case of the Birkenhead; these
duties impose on men the moral necessity, not of the
preservation, but of the sacrifice of their lives for others,
from which in no country, least of all, it is to be hoped, in
England, will men ever shrink, as indeed, they have not
shrunk. It is not correct, therefore, to say that there is any
absolute or unqualified necessity to preserve one's life.(…)
Who is to be the judge of this sort of necessity? By what
measure is the comparative value of lives to be
measured? Is it to be strength, or intellect, or what? It is
plain that the principle leaves to him who is to profit by it to
determine the necessity which will justify him in
deliberately taking another's life to save his own. In this
case the weakest, the youngest, the most unresisting, was
chosen. Was it more necessary to kill him than one of the
grown men? The answer must be "No""So spake the Fiend, and with necessity,
*
The tyrant's plea, excused his devilish deeds."
It is not suggested that in this particular case the deeds
were "devilish," but it is quite plain that such a principle
once admitted might be made the legal cloak for unbridled
passion and atrocious crime. (…)It is therefore our duty to
declare that the prisoners' act in this case was willful
murder, that the facts as stated in the verdict are no legal
justification of the homicide; and to say that in our
unanimous opinion the prisoners are upon this special
verdict guilty of murder.
http://www.justis.com/data-coverage/iclr-bqb14040.aspx
Part 2: Conjoined Twins in Malta, 2000
1. Presentation of the case:
Key concepts: medical necessity, legal homicide v. murder (can you kill somebody to save the life
of another?)
a)
Complete the paragraph below:
The case r___________ several legal, ethical and religious d______________ including whether
it would be permissible to kill one of the children to save the other and whether it was permissible
to act against the w__________ of the twins' parents.
"Jodie" and "Mary", who were born on 8 August 2000, were pseudonyms given to conjoined twins,
Rose and Grace Attard, who were j______________ at the pelvis.
The medical evidence indicated that Jodie was the stronger sibling who was sustaining the life of
Mary. If surgically separated Jodie could live but Mary would die. However, should they have not
been separated and there would have been a chance that they could have died before they were
one year old.
http://en.wikipedia.org/wiki/Re_A_(Children)_(Conjoined_Twins:_Surgical_Separation)
3 b) Complete the article below (NPR, All Things Considered, 2000):
In Britain today, a three j___________ panel r______________ that a pair of six w____________ old
conjoined twins may be separated against their parents’ w___________. The two children, known as
Mary and Jodie, share a h_________ and l__________. Separating them will kill the weaker twin, Mary.
The twins parents are devout Roman Catholics and believe k_______________ one if the twins by
separating them goes against God’s w_____________. The family’s lawyer, John Kitchingman, spoke
today, after the ruling.
“The Court has given it the most detailed c_________________________. This is something which is
very much appreciated by the parents. They remain the same in their views. They must now consider
whether to take the case to the House of Lords or the European Court of Human Rights.”
The children’s doctors say that u_____________ they are separated, they will b____________ die
within a few months. From London, John Duce filed this report for the BBC.
It is little wonder that one of the judges of the appeal court in London admitted he’s sleepless nights
when considering whether it was right to kill one Siamese twin in order to allow the other the
c_______________ to live. Many commentators and observers said, in the run up to the
h______________, that it was one of the most complex and emotive e_____________ debates
discussed in Britain in recent years. The doctors involved in the case took the pragmatic approach
that their overriding a__________ is the preservation of life, as only one of the twins has a realistic
chance of survival, the action must be taken to s__________________ her. Not all doctors agree.
Some have expressed c_________________ that the parents’ wishes and the r____________ of the
weaker twin are being ignored. They also fear a legal p___________________ may be set that it is right
to kill one person to save the life another. Many Siamese twins joined at different part of the body
have survived in the past, but complications do arise as in the case of Jodie and Mary who have one
functioning heart, resulting in the appalling d_______________ as to who l________________ and who
d____________________.
http://www.npr.org/templates/story/story.php?storyId=1113566
2. Translation:
a)
b)
c)
d)
e)
f)
Les jumelles partagent un cœur et un poumon.
A moins qu’elles ne soient séparées, elles vont toutes les deux mourir.
Les parents pensent que tuer une des jumelles va contre la volonté divine.
Les parents ont fait appel auprès de la chambre des Lords.
La Chambre des Lords a jugé que la préservation de la vie était le but le plus important.
Certains s’inquiètent que les désirs des parents et les droits de la jumelle la plus faible n’ont
pas été respectés.
3. Discussions / review: in groups of two, please ask each other the questions below:
a)
b)
c)
d)
What are the facts of the case? (What is the situation, date, names, place?)
What were the two parties and their positions?
What was the ruling in the case?
What are some common criticisms? What is your own position or reaction?
4. Grammar -Conditionals: please translate the sentences below into French.
a)
Si la mort de quelqu’un peut être justifiée par le concept de nécessité, ce n’est pas un
meurtre.
b) Si les docteurs avaient pensé que les deux jumelles allaient mourir, ils n’auraient pas
recommandé l’opération.
c) Si je pouvais sauver 100 personnes en en tuant une, je ne saurais pas quoi faire.
d) Si Dudley avait choisi sa victime au hasard, il n’aurait pas été condamné à mort.
Explication du conditionnel anglais (explication en français) : http://www.e-anglais.com/cours/3_conditionnels.html
4 Part 3: The Trolley Problems
1. Presentation :
Is it ever morally acceptable to kill someone to save lives?
The trolley problem is a thought experiment in ethics, first introduced by Philippa Foot in 1967 and
recently used by Marc Hauser as a way of showing that moral instinct is universal.
The Trolley problem or dilemma describes situations in which the outcome is always the same: one
person dies and it saves five lives. The question asked is the following: under what circumstances (if
any) is it morally acceptable to kill someone to benefit the group?
2. Situations:
Here are some of the situations presented in the “Trolley problems”:
•
•
•
•
Let’s begin with Anna, standing on the embankment above a train track, watching a trackmaintenance team do its work. Suddenly, Anna hears the sound of a train speeding down the
tracks: the brakes have failed, and the train is heading straight for the six workers. Beside
Anna is a lever; if she pulls it, the train will be forced onto a side track and will glide to a halt
without killing anyone. Should she pull the lever?
No moral dilemma yet. But now let’s complicate the story. In the second scenario, Bob finds
himself in the same situation, except that one of the six maintenance people is working on
the side track. Now the decision Bob faces is whether to pull the lever to save five lives,
knowing that if he does, a man who would otherwise have lived will be killed.
In a third version of what is clearly a potentially infinite series, the sixth worker is standing
beside Camilla on the embankment. The only way to stop the train, and save the lives of the
five people on the track, is for Camilla to push the man beside her down onto the track. By
pushing him in front of the train and so killing him, she would slow it down enough to save
the others.
Finally, for anyone not yet convinced that there are cases in which it is wrong to sacrifice one
person in order to save five, consider Dr. Dina, a surgeon who has five patients each dying
from the failure of a different organ. Should she kill one healthy hospital visitor and distribute
the organs to her patients in order to save five lives?
http://www.bostonreview.net/BR30.5/saxe.php
Video illustration: http://www.youtube.com/watch?v=6WB3Q5EF4Sg
2. Conclusions drawn by psychologist Marc Hauser:
By putting scenarios like these on a Web site (http://moral.wjh.harvard.edu) and soliciting widely for
participants, Hauser and his lab have collected judgments about Trolley Problems from thousands of
people in more than a hundred countries, representing a broad range of ages and religious and
educational backgrounds. The results reveal an impressive consensus. For example, 89 percent of
subjects agree that it is permissible for Bob to pull the lever to save five lives at the cost of one but
that it is not permissible for Camilla to make the same tradeoff by pushing the man onto the track.
More importantly, even in this enormous sample and even for complicated borderline cases,
participants’ responses could not be predicted by their age, sex, religion, or educational background.
Women’s choices in the scenarios overall were indistinguishable from men’s, Jews’ from Muslims’ or
Catholics’, teenagers’ from their parents’ or grandparents’. These thousands of people make reliable
and confident moral judgments for a whole series of (presumably) novel scenarios. Also interestingly,
Hauser, Mikhail, and their colleagues found that while the “moral instinct” was apparently universal,
people’s subsequent justifications were not; instead, they were highly variable and often confused.
Less than one in three participants could come up with a justification for the moral difference
between Camilla’s choice and Bob’s, even though almost everyone shares the intuition that the two
cases are different.
5 3. Torture and necessity: Can you ever torture someone to save lives?
Yes: the ticking bomb argument
When the morality of torture is debated, the debate typically begins and frequently ends with the
standard “ticking-bomb” scenario, in which torture is claimed to be necessary to force a captured
terrorist to reveal the location of a bomb planted somewhere in a city. Variations of this scenario have
appeared in academic debates about torture, in public discourse on torture, and in television
programmes such as 24. The ticking-bomb scenario is an example of what the philosopher Michael
Walzer has called “emergency ethics”—the idea that, in cases of emergency or extreme threats, it
might be ethically permissible to ignore or violate what would normally be considered very stringent
constraints on acts such as killing civilians in war or the use of torture.1 Whatever we might think
about the idea of emergency ethics as regards the killing of civilians, in the debate about torture the
ticking-bomb scenario continues to exert a stranglehold on the issue, despite the extreme rarity of
well-documented and substantiated real-life ticking-bomb situations and despite the fact that, as
many authors have pointed out, the scenario bears little if any relation to how torture is practised by
states in the real world.
http://www.worlddialogue.org/print.php?id=459&PHPSESSID=bfa2ca4906c60ad0da0948d94a4b40f2
No: Amnesty International lists 5 reasons why torture is never necessary
1: Torture is illegal under international law. It reflects the widespread belief that torture is cruel,
inhumane and morally wrong. The physical and psychological damage it causes is often permanent.
Even if it was effective, it would still be wrong.
2: No ends justify torture as a means. You might be able get useful information out of torture in the
short term, but in the long term it’s counter-productive. It does more damage to the reputation of the
country that commits torture than any criminal or terrorist. Statistics prove that American use of
torture is Al Qaeda’s number one recruiting tool.
3: Torture produces false intelligence. Some victims will say anything to make the torture stop. At
best this wastes only time and resources. At worst people may be implicated and even convicted for
crimes they did not commit, on the basis of false evidence.
4: While it remains illegal, information extracted through torture cannot be used as evidence in court
of law. It actually makes it harder to bring people to justice for any crime they have committed.
5: You can’t condone torture even in ‘special cases’, otherwise it becomes normalised and a “torture
culture” emerges across the chain of command. In the USA the CIA used waterboarding on Khalid
Sheikh Mohammed 183 times, and low-ranking soldiers tortured for sport in grotesque ways in Abu
Ghraib prison, in Iraq.
http://tv.amnesty.org.uk/2011/07/28/5-arguments-torture/
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