Punishment - First Class - Optional Viewing and Reading
(extras for those who are gluttons for punishment)
copyright © Ray Moses 2015
Sometimes being roped together just means you won't die alone.
Does this vignette from the film Vertical Limit (1) have anything in common with our first case Dudley & Stephens (D&S)(1)? What would Lord Coledrige (and Kant) tell this young man? Wouldn't it be categorical moral reasoning for Coleridge to tell the son as follows:
"You and your sister are legally bound to die with your father. Faced with this calamity where it appears that at least one must die, you are to simply do nothing. Your inactivity may result in everyone perishing
rather than just one, but that's the breaks. Keep a stiff upper lip."
Are there relevant distinctions between D&S and the mountain climbers? Certainly, the crisis in D&S took
longer to develop and arguably might not have reached the point of ultimate danger faced by the climbers.
Also, there's not much question as to who has to be sacrificed in the case of the roped climbers;
casting of lots (a lottery among the endangered) wouldn't be practical here,
as it might have been among the members of the lifeboat in D&S.
If you are roped to a climber who has fallen and neither of you can remedy the situation that places both
of you in peril of imminent death, is it criminal of you to cut the rope tethering you together, knowing
(but not intending) that the dangling climber below you will certainly fall to his death? Unless the law
justifies or excuses a knowing but unintended killing, it is classified as murder. If you want to justify
or excuse what would otherwise be murder in this scenario, how do you do it with the criminal law?
as to the availability of necessity as a defense at English common law? Was it correct to deprive Dudley and Stephens of a necessity defense to the crime of murder with malice aforethought (intent to kill)? [Note: Take
it as true that the common law of murder treated an intentional killing, i.e., one where the actor's
conscious objective or desire was to kill another person, as including a knowing killing, i.e., one
where the actor did not want to cause death but was aware that it was practically or
reasonably certain that death of another would result from his conduct.]
Note that UCL 7th says "Necessity may not have been a common law defense in England,
but it is a part of the common law tradition of the United States." p. 289
Do either or both the Model Penal Code and the Texas Penal Code
Dudley & Stephens case?
In the clip that you see above, the son (the potential murder defendant with the pocketknife), who cuts his beloved father free, knowingly killed another human being in order to save himself and his sister. Does it matter that the father orders his son to cut him (the father) loose? Does the consent of the homicide victim (the father here) absolve the killer of criminal responsibility? Does it matter that two people will be saved if one
is sacrificed? Is the situation different if only the son and the father were on the rope,
i.e., one person will be saved if the other is sacrificed?
If you are going to allow the son a necessity defense, explain how the choice-of-evils balances out? Must there be a pressing emergency so that it is immediately necessary to take what would otherwise be criminal action to avoid imminent harm or should the law permit corrective action before the peril of death becomes imminent? Should the son have to wait until the last second to make the cut? Should Captain Dudley wait until
he is very near death before using his pen knife on the cabin boy's throat? What if help arrived
shortly after the son cut the rope or the captain cut the throat?
If the sons cuts the rope and sends his father to certain death, has the son done anything immoral? Is it socially desirable that the father be cut loose in order to save the son and daughter? If the law of criminal homicide chooses not to justify or excuse the son's knowing killing of his father, what punishment
befits the act and the actor? Same question as to the seafarers in the open boat?
Would the Vertical Limit vignette have been available to us if the father had thought to carry his own pocketknife?
No Dudley and Stephens if the cabin boy died of dehydration before the bloodletting, right?
The Morality of Cannibalism - D&S also implicates the practice of cannibalism in dire circumstances. Do you recall the movie Alive in which there was no homicide, i.e., killing of one person by another, but where
cannibalism was necessary for a group of young Uruguayan rugby players stranded in 1972 in the
high Andes when their plane crashed? (1) (2 - Documentary) Was it moral for the plane wreck
survivors to consume their dead comrades? Here's 2008 case of cannibalism at sea
by Haitian migrants. (1) In bygone years the practice was not highly unusual among castaways. (1 - 1889) (2 - 1878 killing in self-defense, butchering, parboiling,
frying, and lunch)
Monty Python's sketch suggests facetiously that all aboard the lifeboat will willingly give up their lives for the group's survival. Even if this were true, how is the choice to be made? Suppose that among the
candidates aboard the lifeboat are an escaped, convicted murderer who knows how to navigate
a boat at sea, a thin Mother Teresa, a bulked-up Hulk Hogan, a terminally-ill invalid, and a cute
15 lbs. 4-month-old infant.
If all of this sounds irrelevant to a world where we don't have lifeboat cases, ask yourself if you
have heard of any homicide cases that might present the choice-of-evils (necessity) issue. Suppose you are a doctor in a hospital that is isolated by crippling flood waters from a hurricane. The conditions are atrocious.
Would it be conceivable to administer lethal doses of a painkiller such as morphine to lessen the pain
Finally, consider the circumstance of the 33 Chilean miners who in 2010 were trapped underground for almost ten weeks, having been located by surface searchers after 17 days of total isolation. The miners had just eaten their last portions of emergency food supplies when the surface borers broke through the shaft. Would you have expected that the miners would create their own democratic society during those 17 days or would you
have expected chaos to develop? How far should such persons be permitted to go in the effort to survive?
Are there significant parallels with D&S who went for a considerably longer period without food or water ?