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Unformatted text preview: d other philosophical arguments. The strictly philosophical view is that if we must choose between killing a few and 3 letting many die, it is better to kill the few. But from a legal standpoint, as we will see, courts have come to the opposite conclusion in real, rather than hypothetical, cases. Courts have suggested that it is difficult to see how there is a benefit to society in the intentional killing of innocents even though the action results in the saving of lives. Lives are not amenable to ready quantification, and therefore courts are just not comfortable with allowing defendants to assert a necessity defense by "measuring the comparative value of [life]." At the same time, there is a minority view that the defense is or should be available in cases involving intentional homicide. Yet again, the overwhelming majority of courts are particularly reluctant to entertain the necessity defense to justify intentional homicide because of the deontological sense that it is morally repugnant to balance two harms when 5 one of them involves killing an "innocent and unoffending" person. This constraint on the application of the necessity defense is similar to the common law principle that duress is not available as a defense to a defendant accused of murder. On this point Blackstone said that someone under duress "ought rather to die himself than escape by the murder of an innocent." It seems intuitive that, since neither duress, coercion, nor compulsion are defenses to murder, and these defenses are in the nature of excuses, then much less could necessity, a justification, be advanced as a defense to murder. SLHS Value File Lesser Evil Principle Bad
The "lesser evil" argument is no good: it justifies human rights abuses for some so as to save others and has been applied to detention without trial, torture, and more
Eric Blumenson, Professor of Law, Suffolk University Law School, NEW CRIMINAL LAW REVIEW, Spring 2007, p. 211 In Is Capital Punishment Mora...
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This document was uploaded on 11/20/2013.
- Fall '13