August 5, 2006
(See The Case of the Speluncean Explorers: Nine New Opinions by Peter Suber. Some background.)
OPINION OF JUSTICE KESTELOOT
Justice Springham raises the question of whether the purpose of the law is to deter (Parry), rehabilitate (Makeover), or retaliate (Scape). But these are possible purposes of the punishment, not of the law itself. The purpose of the law, vague and trite as this is, is to have a better society. The preferred behavior of an individual has two properties: (a) it is done with the intent of the best overall outcome (best for society); and (b) the result achieves this intent. Both are necessary. The law forbids good intentions with bad results (involuntary manslaughter) and a bad intentions with (by chance) good results (attempted murder). If everyone satisfied both properties with every action, the law would be unnecessary.
Justice Bond argues that the lack of consensus on the willfulness of the killing implies that we are dealing with the “open texture” of the law, the area where the applicable law is vague, silent, or inconsistent. Whereas he follows the path of Foster regarding the founding of a new social contract, I will appeal to the more basic criteria of whether the explorers satisfied conditions (a) and (b) above; i.e., did they both strive for and achieve the best overall outcome.
The outcome here can be measured in lives. At best all six will survive, at worst all six will die. There are other considerations, including suffering (e.g., eating one’s own foot), but these do not illuminate the issue, nor do I believe they change the conclusion (as argued by Springham, p. 50).
We must first, then, decide what the best possible outcome was, and then compare that to the intent and result of the defendant. If they match, then we cannot possibly find him guilty. He made the best decision, the decision the law would have advocated had it foreseen this situation.
The first question we must answer is, Was an immediate death necessary? Burnham argues that the five explorers should have followed Roger Whetmore’s lead of waiting. What outcome can we expect from this strategy? At best all will live, but the expert opinion of the engineers and the doctor indicated that this was unlikely. The chance of at least once death before rescue was exceedingly high. In fact the chance of all six explorers dying was quite high. We cannot now know what would have happened, but it is more than fair to assume that at least three of the six would have died. Since an immediate death (through killing) would likely result in only that one death, it is clearly a better outcome.
The next question is whether a player who withdraws from the lottery is allowed to eat the “winner”. If we agree that he is, then it makes sense for Whetmore to withdraw, since he risks no death and guarantees his survival. But each player will reason the same way, all will withdraw, and all will die. If we instead agree that a player who withdraws cannot eat the winner, then that player dies of starvation, plus another player (one who stays in the lottery) dies from being killed. Two is fewer than six, so the better outcome results from preventing withdrawn players from eating.
Now we must ask whether the five explorers should have allowed Whetmore to excuse himself completely from the game (and not take part in the eating, as per section III above), or force him to play, as they did. In the first case, Whetmore dies of starvation, plus one of the remaining players dies. In the second, only one person dies. We prefer the latter, since one death is preferable to two.
The best outcome, then, is to immediately kill exactly one person, and not let anyone starve by forcing everyone to play the lottery. This is precisely what they did. They both aimed for and achieved the best outcome: the fewest number of deaths. This is clearly the outcome that we, as a society, and therefore also the law, would prefer and advocate.
Once the landslide occurred, at least one of the six men was doomed to die within one month. Once Roger Whetmore lost the roll of the dice, he was dead, either from starvation or from being killed. At that point, the other explorers acted to minimize unnecessary deaths, meaning any deaths other than Whetmore’s.
Other justices have questioned whether it is right to kill one man to save five. But they miss the crucial fact that this man was dead anyway, either that day or a few days later. So it’s not killing one man to save five, it’s killing one man earlier to save five. Justice Tally’s use of the word “bargain” (p. 58) is taken to an extreme: we’re trading off several days of one person’s life for many decades of five people’s lives.
I also want to address the goal of Justice Goad (p. 85) of convicting the defendants in order to deter similar killings in the future. If this killing is the best outcome, then we don’t want to deter such killings, we want to encourage them. What is the alternative, to deter the killing so that even more men may die?
Throughout this case we have argued about the meaning of words like “willful” and the intent of the legislature. But we should remember that the purpose of the law, as a whole, is to do what’s best for society. Without any laws, each ruling would involve a tortured analysis, like the above, of what outcomes were possible and which were preferable. Laws are meant to avoid this repeated reasoning. We don’t need to fully examine, in every murder case, whether murder is good or bad for society. We can decide it once and for all for common situations. Laws are an optimization. But it is never wrong to go back to fundamental principles and examine all possible outcomes, decide which is best, and compare that to the defendant’s intent and result. At worst it is a waste of time. In cases where the law is not helpful, such as this one, it is necessary.
I vote to overturn the conviction and acquit the defendant.