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Unformatted text preview: when the person seeking to avert the anticipated harm does not act reasonably." Though a necessity defense could be open in cases of intentional killing, courts have never accepted it because of discomfort in calculating the worth of a human life
John Alan Cohan, CHAPMAN LAW REVIEW, Fall, 2006, p. 120
In philosophy we sometimes consider the question, put by way of hypothesis, of how we should act in the midst of a calamity, disaster, or other danger, if it is apparent that we can save our own life only by the destruction of another's. We can hardly imagine that such a question would have much practical importance, or that a court would ever need to rule upon conduct under such circumstances, or, for that matter, that we would ever personally encounter an ordeal in which we face a dilemma between selfsacrifice and the sacrifice of another. In fact, there have been numerous instances of homicide by necessity, some of which have resulted in murder or manslaughter convictions, and others which have passed quietly into history with no action taken by the authorities. This topic, homicide by necessity, refers to the killing of innocents in order to produce a greater good or avert a greater evil - usually to save a greater number of lives. At the outset, we immediately run into a problem. At common law and almost universally in modern law, the necessity defense has been consistently denied in cases where the actor commits intentional homicide in order to avert a greater evil. Virtually all other categories of crimes and torts, even treason, are eligible for the necessity defense, provided that all of the elements of the defense are proven; but intentional homicide is not. Numerous statutory enactments of the necessity defense specifically preclude the defense in connection with intentional homicide. On the other hand, from a philosophical standpoint, the intentional killing of innocents, as in the Trolley Problem, may well be morally permissible, based on utilitarian an...
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This document was uploaded on 11/20/2013.
- Fall '13