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On necessity as a defense to homicide in Regina v. Dudley and Stephens

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  1. Floodgate necessity scenarios.
  2. Destruction of property to avert peril to a community or destruction of a community to avert peril to a larger community.
  3. Translating ex post RDS into an FN.
  4. Contrasting the ex post and ex ante floodgate renditions of RDS with BFN.
  5. Implications.
  6. Difference in principle between RDS and BFN.
  7. An argument in defense of Dudley and Stephens.

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). [...]

[...] This suggests that insofar as the private versus public necessity distinction in tort law is applicable to criminal law, self- defense is the only exception to disallowing private necessity as a justification for one's actions. In RDS, Parker did not threaten the lives of Dudley and Stephens. Might the fact that Parker was the weakest and most famished of the four override the fact that Dudley and Stephens acted for their own private necessity? In other words, the thought here is that even though Dudley and Stephens acted for their own private necessity, they might be justified in doing so if in RDS-type scenarios one supposes that killing the person least likely to survive is justified by some other consideration private necessity is not sufficient justification for killing, but other considerations may render an act of private necessity justifiable. [...]

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