prior probability

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.

Your guess is as good as mine …

Note: this is the fourth of five posts on the doctrine of necessity.

In our previous posts (9/1, 9/4, and 9/5), we referred to the work of legal scholar Giorgio Agamben (in particular, his beautiful book State of Exception), and building on his ideas we presented two competing theories of the doctrine of necessity: one narrow; the other broad. Under the narrow view of necessity, this legal doctrine operates as a limited dispensation or ex post exception to law, one that excuses or justifies an illegal act when that act is the lesser of two evils, while under the broad view, the doctrine of necessity is turned on its head. According to the broad view: necessity is the law (i.e. the ultimate ground and original source of law), so all necessary acts are inherently lawful ex ante.

Both of these competing theoretical pictures of necessity, however, are problematic. Generally speaking, the narrow view is too narrow, while the broad view is too broad. Let’s discuss the problems with the narrow view first. If necessity functions as a dispensation (i.e. an excuse or justification), then the “law of necessity” is not (at least not in the literal sense) a legal doctrine–hence the paradoxical maxim “necessity knows no law.” Instead, it is something external to law, operating as an ad hoc and extra-legal exception to law. The broad view, by contrast, is problematic because it is inconsistent with how the doctrine of necessity actually operates in practice. If necessity were the true source of law, for example, then the defense of necessity should operate as a legal trump card in civil and criminal cases. Yet it is the defendant who is always required to plead and prove that he acted in necessity.

Accordingly, here we present a third picture of necessity: necessity as a safety valve or gap filler. All legal systems (and all systems of rules generally) will have unavoidable gaps or blind spots. Consider, for example, H.L.A. Hart’s example (from the 1950s) of a local ordinance prohibiting motor vehicles in the park. A situation may occur that was unforeseeable when the law was first enacted. Does a miniature drone, for example, fall under the definition of a motor vehicle? Or the law in question might be open to multiple or conflicting interpretations, such as the meaning of the word “willful” in the simple murder statute in Lon Fuller’s fictional “Case of the Speluncean Explorers.” (See our blog post of 8/29.) Given that blind spots or gaps are inevitable in law, the doctrine of necessity (like the various rules of equity in common law systems) can be seen as a safety valve or gap-filling device, but one that authorizes judges, police, and even private citizens to literally take the law into their own hands in emergency situations. On this gap-filling or safety-valve view of necessity, we are all law-makers … We will discuss the implications for this third view of necessity in our next blog post (9/7).

Note: this is the third of five posts on the law and morality of necessity.

My wife and I have been watching season 2 of Narcos on Netflix this Labor Day weekend. Narcos revolves mostly around Pablo Escobar, a notorious Colombian drug lord, narco-terrorist, and fugitive from the law. In one episode, after Escobar’s men have ambushed and killed dozens of Colombian police officers in Medellin (Escobar’s hometown), the President of Colombia appoints Colonel Horacio Carrillo (played by Maurice Compte, pictured below) to capture or kill Escobar. Colonel Carrillo, however, resorts to several extra-legal methods in order to accomplish his dangerous and difficult mission. But are his methods really “extra-legal” given the difficulty of his mission or given the dire danger Escobar poses to Carrillo and his men? Once again, then, the dramatic real-life events depicted in the TV series Narcos—like the hypothetical Trolley Problem in moral philosophy and Lon Fuller’s fictional “Case of the Speluncean Explorers” in legal philosophy, both of which we have discussed in a previous post—give us an opportunity to revisit the legal and moral doctrine of necessity.

Previously (9/4), we presented the standard narrow view of necessity. In this post, by contrast, we shall consider an intriguing alternative theory of necessity: necessity as an ex ante and independent source of law. In support of this alternative view, one contemporary jurist, Giorgio Agamben, refers to the ancient legal maxim “necessity knows no law” and to the work of an early 20^th Century Italian legal scholar, Santi Romano. In particular, in an obscure law treatise published in 1909, Romano describes necessity as “the first and originary source of all law.” (Agamben, p. 27.) In this way, Romano turns the doctrine of necessity on its head. Rather than creating a limited exception–one that excuses or justifies a particular transgression of law–, necessity instead converts an otherwise unlawful act into a lawful and legitimate one. On this broad ex ante view of necessity, an act done under necessity is an inherently lawful act because “necessity constitutes … the ultimate ground and very source of the law” (Agamben, p. 26) and thus makes lawful what would otherwise be unlawful.

But this alternative theory of necessity raises a new set of difficult theoretical and practical questions. To begin with, in the eloquent words of Agamben (p. 29), necessity creates “a threshold where fact and law seem to become undecidable.” On the one hand, the commission of a particular act is a fact, but on the other, whether the act was done under necessity or not requires a legal (and moral?) judgement. And so, among other things, Agamben asks (p. 29): “If a measure taken out of necessity is already a juridical norm [i.e. a lawful act] and not simply fact, why must it be ratified [ex post] and approved by a law …?” This haunting question (and the apparent contradiction with the broad view of necessity) will lead us to present a third picture of necessity, a theory we shall discuss in our next blog post (9/6).

We recently rediscovered and reread Lon Fuller’s classic “Case of the Speluncean Explorers” (via Peter Suber), and in the process of writing up our own response to Fuller, we noticed a possible parallel between this hypothetical case and the famous “Trolley Problem” in the field of moral philosophy. (There are several variants of the problem (see below); we will refer to the standard version in this post.) By way of background, we summarized the facts of Fuller’s fictional case in a previous post; alternatively, here is a simplified account of the cave case (via Wikipedia):

The case involves five explorers who are caved in following a landslide. They learn via intermittent radio contact that, without food, they are likely to starve to death before they can be rescued. They decide that someone should be killed and eaten so that the others may survive. They decide who should be killed by throwing a pair of dice. After the four [remaining] survivors are rescued, they are charged and found guilty of the murder of the fifth explorer.

By comparison, the trolley problem is a moral dilemma that involves a similar numerical calculus, but instead of five explorers trapped in a cave, there are six hapless workmen (five on one track and one on another) and an innocent bystander standing next to a switch or lever where the track divides into two. We restated the standard version of this moral dilemma in a previous paper; here too is the standard set up of the trolley problem (again, via Wikipedia):

There is a runaway trolley barreling down the railway tracks. Ahead, on the tracks, there are five people tied up and unable to move. The trolley is headed straight for them. You are standing some distance off in the train yard, next to a lever. If you pull this lever, the trolley will switch to a different set of tracks. However, you notice there is one person on the side track. You have two options: (1) Do nothing, and the trolley kills the five people on the main track. (2) Pull the lever, diverting the trolley onto the side track where it will kill one person. Which is the correct choice?

The question we have is this: are the factual differences in both the cave and trolley scenarios morally or legally relevant? In both cases there is an imminent threat or mortal danger to five human lives, and both cases involve sacrifices, but the relevant decision makers are different in each case. In one case, the persons whose own lives are in danger are able to deliberate and ponder their collective fate. Moreover, they initially agree to sacrifice one member of their party through a random mechanism. In the other case, by contrast, someone external to the danger (the person standing next to the lever) has no time to deliberate. He must make a snap decision and that decision (including the decision to do nothing) will result in the loss of either one or five lives.

In short, is the trolley problem relevant to our legal or moral analysis of the case of the explorers? By way of illustration, let’s transpose the trolley problem to Fuller’s fictional land of Newgarth. (Recall the language of the relevant murder statute in Newgarth: “Whoever shall willfully take the life of another shall be punished by death.”) Putting the ethics of the trolley problem aside (assuming it is even possible to separate morality from law), would the person at the switch in the trolley problem be guilty of murder under this statute if he were to divert the trolley onto the side track? Further, does our answer to this question apply or control the result in the case of the explorers?

Trolley problems …