Wednesday, July 13, 2005

Wednesday Meditation: Sacrifice, Strict Equality and "Necessity"

My topic today is Anglo-American Criminal Law. Now, this may seem more like an op-ed, commentary-type topic at first glance -- that is, until one realizes that the Criminal Law principles I will be discussing have been around for about 500 years. In reviewing my Criminal Law materials for the bar this week, I was particularly interested in the doctrine of "necessity." This doctrine provides a defense to what would otherwise be the crime where committing a crime is the only real alternative to preventing a much greater harm. Consider committing the crime of trespass to prevent someone from drowning. Necessity is not merely an "excuse" defense (as are insanity and duress). It's considered a full "justification."

What's most interesting to me about the doctrine of necessity is one of its express limitations: you can't use it as a defense to killing another to save your own life. But, one might ask, why is this limitation necessary? If an element of the general rule is that the harm prevented must be much greater than the harm of committing the crime, then wouldn't killing another to save yourself always fail the general rule? Well, from a utilitarian standpoint, the answer is definitely not.

Consider the famous 19th century case of Dudley and Stephens. Dudley, Stephens, and a seventeen-year-old cabin boy were shipwrecked a thousand miles from land. On the eleventh day, they ran out of food. On the thirteenth day, they ran out of water. They drifted five more days with neither food nor water. By this point, all three were on the brink of death and there was "no reasonable prospect" that they would be rescued any time soon. Then, under the influence of this severe deprivation, Dudley and Stephens decided to kill and eat the cabin boy. While quite disgusting, cannibalism is not unheard of in such situations.

From a utilitarian standpoint, their necessity defense was flawless. If one of the three was not killed, all three would die within the day. The murder would prevent a much greater harm -- three deaths being a greater harm than one. As the court found, "there was no appreciable chance of saving life except by killing some one for the others to eat." Furthermore, the cabin boy was in the weakest condition of the three (likely to die first) and had no family to speak of - while Dudely and Stephens each had a wife and kids.

These facts undeniably established necessity under the general rule. But the court found Dudley and Stephens guilty of murder nonetheless. It found them guilty even though it found that they were subjected to "loathsome" and "harrowing" "sufferings which might break down the bodily power of even the strongest man." Necessity never, under any circumstances, justifies taking the life of another to save your own.

In finding no justification for the murder, the court appealed to the great principles of equality and sacrifice. First, the court created an "irrebuttable presumption" (a rule of law that applies no matter what the facts are), that all people's lives, no matter how short or insigificant, are strictly equal. Second, the court articulated a principle of sacrifice. It construed the fact that the cabin boy was the weakest and youngest of the three against rather than in favor of the defendants. In doing so, the court (before constitutional principles separating Church and State were well-established) appealed to "the Great Example whom we profess to follow."

I applaud the limitations imposed on the justification of necessity by equality and sacrifice. When our legal system employs these ideals, it more closely approximates the Kingdom of God.

But I can't support the ultimate outcome of Dudley and Stephens. Saying that killing the cabin boy was not "justifiable" is one thing. But holding that Dudley and Stephens had no "excuse" that might at least mitigate their crime to manslaughter is quite another. Ultimately, Dudley and Stephens were hanged. In ordering their deaths, the court upheld two great principles - equality and sacrifice - while forgetting a third that is equally important: compassion. I do believe that sacrifice and equality require that we follow the Great Example and give our lives for others if the circumstances call for us to do so. I don't think, however, that someone's failure to live up to such a superhuman standard should result in capital punishment.

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