Here are some follow-up thoughts, now writing several years after this originally appeared on Tumblr:

Think of the trolley problem: A runaway train car is headed for a group of people, who it will kill if nothing is done. The track operator can shunt the train onto another track, where it will kill only one person. It is a choice between passively not preventing deaths you did not cause, and actively choosing to cause a death. Under the law as it has developed in the cultures of the United States (and England before that), actively choosing to kill an innocent over passively not preventing deaths you didn’t cause is so immoral as to be punishable as homicide.

I personally dislike the trolley problem as an example, because it raises extra issues of whether the track operator has a level of control over the entire situation whereby he has a duty to all of the people involved, in which case he has some level of fault regardless of who gets killed. So there his volitional choice to kill only one person could be a mitigation—an attempt to lessen the harm he would be responsible for. This muddies everything, because now we have to figure out how much responsibility he bears for the whole situation, and then figure out whether that outweighs the extra immorality of actively killing someone. It’s like comparing apples and earthworms—how do you even measure the two in a way that’s even comparable?

When the issue comes up, my preferred scenario is a surgeon, suddenly presented with five patients each needing a life-saving organ transplant. None are available in time to save them. However, it just so happens the patient he’s operating on, in for a routine procedure and otherwise perfectly healthy, has perfectly matching organs. Is it right for him to chop up the one innocent patient to save the lives of the other five? [I didn’t come up with this one. I don’t know who came up with it, but I first came across it as a teenager in a book by the brilliant Gilbert Harman.]

A strictly utilitarian answer would say yes, but people almost universally are repulsed by that option. And the reason boils down, again, to the fact that purposely killing one person feels viscerally, morally wrong—vastly more wrong that passively allowing even many others to die, when you didn’t cause their deaths.

The “duty” issue is avoided here because the surgeon has no control over the situation. He did not cause the injuries or maladies killing the other patients, and the lack of available organs means there’s nothing he can do for them.

Contrast this with another example I was given in a specialty-driving course, and example more akin to that of Jack and Jill (and one that I almost went with here). You’re driving your car on a narrow curving mountain road, obeying the posted speed limit. On the inside of the curve you’re hemmed in by the rocky side of the mountain. The outside of the curve falls away to a steep gorge, without any guardrail. (I’m looking at you, West Virginia.) As you come around the bend there’s a sweet old lady toddling right down the center of the road. Obviously you swerve to avoid her, but she stumbles even more into your path. The only way to avoid her (depending on which side of the road you’re on) is to slam your car into the side of the mountain, which will in all likelihood roll you off the road and kill you or her both, or drive off the cliff, which will certainly kill you. Or you can plow into her, certainly killing her, but saving your own life. The answer we were given in that course was “hit the soft thing, not the hard thing.”

But this is a terrible example. You’re not in a position of having to kill someone else to save your own life. The sweet little old lady didn’t put your life in danger. She put her own life in danger by toddling along a mountain road. You are faced with either being the unwilling instrument of her death, or the volitional cause of your own death. Purposely killing an innocent (you) is the wrong choice here, over passively being the instrument of a death she brought on herself. But then we get into messy issues of altruism. Isn’t it better to sacrifice oneself for others? Isn’t that the heroic thing to do? There are conflicting moralities here, and that’s no good.

(Anyway, I’m firmly of the opinion that, if you had no choice but to hit the old lady, then you were at fault. If you’re driving faster than you can see—so fast that you cannot stop in time should an obstacle appear in sight in your path—then to that extent you are actually driving out of control, You’re frankly an asshole, who’s responsible for the risk of collision. If you were driving safely, you’d have been able to stop before colliding with the old lady, and offer her a lift to where she needs to be.)



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Join the conversation! There are now 10 comments on this chapter's page 64. Trolley Problem. What are your thoughts?
  1. Eric says

    Actually, that scenario sounds an awful lot like self defense to me. Jack was going to kill Jill if she didn’t do something about it.

    • Exactly. Humans have a preservation instinct, and I think the law should protect that, no matter how innocent the person is.

    • Self-defense doesn’t apply because Jack didn’t do anything illegal. There’s no such thing as a self-defense claim against lawful behavior, even if it’s lawful behavior that threatens your safety.

      That said, this case probably wouldn’t be prosecuted (assuming there was a witness), if for no other reason than because a jury would very likely sympathize with her decision, and because the incident as told just intuitively seems far more like “tragic accident” than “murder”.

  2. WJS says

    It hardly seems fair, considering you’d be hard pressed to find someone who doesn’t value their own lives and those of their family above strangers.

  3. JB says

    Isn’t this the same problem? Again you’re not weighing Jack against Jill, you are weighing Jack against both Jack and Jill.

  4. Steve says

    I’d also argue that you have to weigh Jack’s life against the lives of both Jack *and* Jill, since Jack wasn’t going to magically be okay if he brought Jill down with him.

  5. Mike Bird says

    This actually reminds me of the first legal problem I ever encountered, in 10th grade civics!

    Two English sailors were lost at sea in a dinghy. They were dying of starvation and dehydration, so being the Men of the Crown and Empire they were, they played a game of chance and the winner killed and ate the loser.

    Upon his rescue and return to England, he was tried for the murder of his comrade, because, well, it was murder under these principles. The Queen immediately commuted his sentence, though.

  6. Mike Bird says

    This goes into an important pressure valve built into the system: authorities (the Queen in my example, prosecutors and juries in this one) are afforded the right to show mercy in specific cases without rewriting the rule or formalizing an exception

  7. Mike Bird says

    So this creates a system where Jill and the English Sailors can avoid unjust punishment without creating a precedent Count Dracula can point to when he sucks you dry.

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