The Illustrated Guide to Law

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.)