In our previous post (9/6), we referred to the work of legal scholar Giorgio Agamben, and we presented our own pragmatic or “common sense” view of the doctrine of necessity: necessity as a safety valve or gap-filling device for unforeseeable or unexpected situations. Now, in this fifth and final post (for now) in our series on necessity, let’s apply our approach to the Trolley Problem and to Lon Fuller’s “Case of the Speluncean Explorers”–the two hypothetical examples that led us to the common law doctrine of necessity in the first place.
First, notice that our safety-valve or gap-filling view of necessity flows from a contractual, Coasian, or quasi-Rawlsian approach to the Trolley Problem or the Cave Case. We say “Coasian” and “quasi-Rawlsian” because we would dispense with Rawls’s fiction of an “Original Position” and pose a simple contractual conjecture instead. In particular, what would happen if we could bargain over the actual terms and conditions of the necessity rule instead of searching for some magical rule in the sky? By way of example, imagine if all the people in the trolley or cave scenarios–the five explorers who are trapped in Lon Fuller’s cave or all seven actors in the standard version of the trolley problem, i.e. the man next to the switch and the six workmen on the two tracks–could negotiate (either ex ante or even ex post!) the terms and conditions of the necessity rule. What type of necessity rule would they agree to ahead of time?
Secondly, notice, too, what we are not trying to do. We are not trying to figure out the meaning of the word “willful” in Fuller’s murder statute in the cave case; nor are we searching for a single right definition of necessity or for some deep philosophical truth. Rather, all we are trying to do is to make an educated guess. Specifically, we are trying to guess what most people would actually do if they were to find themselves in the trolley hypothetical or in the cave thought-experiment. If most people would pull the lever (in the trolley problem) or throw the dice (in the cave case), then we should allow the doctrine of necessity to work as an excuse or justification in either case. Now, my guess might be totally different than your guess, or our guesses might change over time, but on my safety-valve view of necessity, that’s fine because guessing is the best we can do when different people have different intuitions about right and wrong, about lawful and unlawful behaviors.