The present paper asks and addresses the questions: what principles, if any, distinguish Regina v. Dudley and Stephens (RDS) from scenarios in which necessity ought to be a defense to homicide? Were Dudley and Stephens guilty of murder? After laying out the relevant facts of RDS I will answer the question by considering variations on what I call "floodgate necessity" scenarios (FNs). In RDS, Dudley, Stephens, Brooks, and Parker, are stranded on a boat. On their twentieth day at sea, having been without food for eight days and having had very little water, Dudley kills Parker.
[...] Even on a strict utilitarian calculus, it may be better to condemn the killing in RDS and disallow a necessity defense. For suppose that we have a hundred RDS-type situations. If one condones the killing of the weakest member, then in a large number of cases say, ninety-nine of them all four mariners will perish, and one or more of them will be intentionally killed. And in just one case will the killing save some life. The thought here then is that even for the strict utilitarian, the net saving of a few lives does not outweigh the condoning of intentional killing in RDS-type situations. [...]
[...] Dudley, in contrast, was able to speak with the other two sailors, say a prayer, and put a knife to the boy's throat. Stephens and Brooks were also presumably in better health than the boy, as they too were able to communicate verbally and via gestures; they spoke with Dudley and “made signs” to one another. Thus there may have been justifiable reasons for killing the boy, reasons which furthermore may trump considerations that render the RDS homicide unjustifiable (e.g., public versus private necessity we will come to this and other exacerbating considerations in just a bit). [...]
[...] It is simply to note that, in RDS, in order to secure the welfare of a greater number of people, it was not necessary for Dudley and Stephens in particular to kill Parker specifically. Though their act did in fact secure the welfare of a greater number of people, it was not necessary for doing so. If any one or more of the mariners had killed any one or more of the others, or if any one mariner had killed himself, it is quite plausible to suppose that the greater number of lives would still have been secured, though who in particular survived may have differed. [...]
[...] If we are to take this at face value, it might seem that if a necessity defense is available to the agent in BFN, then a necessity defense is available to A and B in the scenario sketched above. After all, given the facts from an ex post perspective, a smaller number of lives are sacrificed in order to save a greater number of lives. But there are some differences between the above scenario and BFN. First, there are two agents, A and not one agent. [...]
[...] On the other hand, in RDS the ‘flipping of the floodgate switch,' so to speak, only increases the probability of the survival of a greater number of people the lesser- evils calculus is indefinite. This is not to say that considerations of health might not be introduced into FNs, though, as it very well may. If one introduces in those scenarios the fact that of the two groups, one is comprised of terminally ill octogenarians and the other, smaller group is comprised of healthy young people, then some may feel that the actor at the floodgate is justified in sparing the young, healthy population, even though to do so is to spare fewer lives. [...]
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