Justice

Michael Sandell www.harvardjustice.org

Law School
Aqui voc Aprende Direito

Avenida Fernanda, 85
Centro Carapicuiba SP
06300-000
"If you had to choose between (1) killing one person to save the
lives of five others and (2) doing nothing, even though you knew T 305.912.4998
that five people would die right before your eyes if you did M 801.935.9804 WhatsApp
nothingwhat would you do? What would be the right thing to
do? Thats the hypothetical scenario Professor Michael Sandel info@lawschool.com.br
uses to launch his course on moral reasoning." www.lawschool.com.br
oab.lawschool.com.br

LECTURE 1 Justice: What's The Right Thing To Do?

Episode 1: The Moral Side of Murder / The Case for Cannibalism
Episode 2: Putting a Price Tag on Life / How to Measure Pleasure

Episode 3: Free to Choose / Who Owns Me?

Episode 4: This Land is my Land / Consenting Adults

Episode 5: Hired Guns? / For Sale: Motherhood

Episode 6: Mind Your Motive / The Supreme Principle of Morality

Episode 7: A Lesson in Lying / A Deal is a Deal

Episode 8: What's a Fair Start? / What Do We Deserve?

Episode 9: Arguing Armative Action / What's the Purpose?

Episode 10: The Good Citizen / Freedom vs. Fit

Episode 11: The Claims of Community / Where Our Loyalty Lies

Episode 12: Debating Same-sex Marriage / The Good Life

Would you murder one person to save three lives?

LECTURES
Script of the Lecture : The Moral Side of Murder, Page 02

Script of the Lecture : The Case for Cannibalism, Page 09

READINGS AND DISCUSSION GUIDES

THE QUEEN VS DUDLEY AND STEPHENS (1884) (THE LIFEBOAT CASE), Page 19

JEREMY BENTHAM, PRINCIPLES OF MORALS AND LEGISLATION (1780), Page 26

DISCUSSION GUIDE
LECTURE 1 DISCUSSION GUIDE (BEGINNER), Page 33

LECTURE 1 DISCUSSION GUIDE (ADVANCED), Page 34

Page 1 of 35
Episode 1: The Moral Side of Murder
Announcer: Funding for this program is provided by: Additional funding provided by:

Michael Sandel: This is a course about justice, and we begin with a story. Suppose
you are the driver of a trolley car, and your trolley car is hurtling down the track at 60
miles an hour, and at the end of the track you notice five workers working on the
track. You try to stop but you can't. Your brakes don't work. You feel desperate
because you know that if you crash into these five workers, they will all die. Let's
assume you know that for sure. And so you feel helpless until you notice that there is,
o to the right, a sidetrack. And at the end of that track, there is one worker working
on the track. Your steering wheel works so you can turn the trolley car if you want to,
onto the side track, killing the one, but sparing the five. Here's our first question:
What's the right thing to do? What would you do? Let's take a poll. How many would
turn the trolley car onto the sidetrack? Raise your hands. How many wouldn't? How
many would go straight ahead? Keep your hands up, those of you who would go
straight ahead. A handful of people would. The vast majority would turn. Let's hear
first, now we need to begin to investigate the reasons why you think it's the right
thing to do. Let's begin with those in the majority, who would turn to go onto the
sidetrack. Why would you do it? What would be your reason? Who is willing to
volunteer a reason? Go ahead, stand up.

Student A: Umm, because it can't be right to kill five people when you can only kill
one person instead.

Michael Sandel: It wouldn't be right to kill five if you could kill one person instead.
That's a good reason. That's a good reason. Who else? Does everybody agree with
that reason? Go ahead.

Student B: Umm, well I was thinking it was the same reason on 9/11, we regard the
people who flew the plane into the Pennsylvania field as heroes because they chose
to kill the people on the plane, and not kill more people in big buildings.

Michael Sandel: So the principle there was the same on 9/11. It's a tragic
circumstance, but better to kill one and so that five can live. Is that the reason most
of you had, those of you that would turn? Yes? Let's hear now from those in the
minority. Those who wouldn't turn. Yes.

Student C: Well I think that is the same type of mentality that justifies genocide and
totalitarianism, in order to save one type of race you wipe out the other.

Page 2 of 35
Michael Sandel: So what would you do in this case? You would, to avoid the horrors
of genocide; you would crash into the five and kill them?

Student C: Presumably, yes.

Michael Sandel: You would?

Student C: Yea.

Michael Sandel: OK. Who else? That's a brave answer. Thank you. Let's consider
another trolley car case, and see whether those of you in the majority want to adhere
to the principle. Better that one should die so that five should live. This time you're
not the driver of the trolley car, you're an onlooker. You're standing on a bridge
overlooking a trolley car track, and down the track comes a trolley car, at the end of
the track are five workers. The brakes don't work, the trolley car is about to careen
into the five and kill them, and now, you're not the driver, you really feel helpless, until
you notice, standing next to you, leaning over the bridge is a very fat man. And you
could give him a shove, he would fall over the bridge, onto the track, right in the way
of the trolley car, he would die, but he would spare the five. Now, how many would
push the fat man over the bridge? Raise your hand. How many wouldn't? Most
people wouldn't. Here's the obvious question, what became of the principle? Better
to save five lives, even if it means sacrificing one, what became of the principle that
almost everyone endorsed, in the first case. I need to hear from somebody who was
in the majority in both cases. How do you explain the dierence between the two?
Yes?

Student D: The second one, I guess, involves an active choice of pushing a person
down, which, I guess that person himself would otherwise not have been involved in
this situation at all, and so to choose on his behalf, I guess, to ah, to involve him in
something he otherwise would have escaped is, I guess, more than what you have in
the first case where the three parties, the driver and the two sets of workers are
already, I guess, in the situation.

Michael Sandel: But the guy working, the one on the track o to the side, he didn't
choose to sacrifice his life anymore than the fat man did, did he?

Student D: That's true, but he was on the tracks and you

Michael Sandel: This guy was on the bridge. Go ahead. You can come back if you
want. Alright, it's a hard question. Alright, you did well. You did very well. It's a hard
question. Umm, who else can find a way of reconciling the reaction of the majority in
these two cases? Yes?

Page 3 of 35
Student E: Well I guess, umm, in the first case, where you have the one worker and
the five. It's a choice between those two, and you have to make a certain choice and
people are going to die because of the trolley car, not necessarily because of your
direct actions. The trolley car is a runaway thing and you're making a split-second
choice, whereas pushing the fat man over is an actual act of murder on your part. You
have control over that whereas you may not have control over the trolley car, so I
think it's a slightly dierent situation.

Michael Sandel: Alright, who has a reply? Is that, no, that's good. Who has a way?
Who wants to reply? Is that a way out of this?

Student F: Umm, I don't think that's a very good reason because you choose to, it's,
either way you have to choose who dies because you either choose to turn and kill
the person which is an active conscious thought to turn, or you choose to push the
fat man over, which is an active conscious action. So, either way you're making a
choice.

Michael Sandel: Do you want to reply?

Student E: Well I'm, I'm not really sure that's the case. It just still seems kind of
dierent, the act of actually pushing someone over onto the tracks and killing him.
You are actually killing him yourself.

Michael Sandel: You're pushing him with your own hands.

Student E: You're pushing him and that's dierent than steering something that is
going to cause death into another, you know, it doesn't really sound right saying it
now

Michael Sandel: No, no, it's good.

Student E: when I'm up here.

Michael Sandel: It's good. What's your name?

Student E: Andrew.

Michael Sandel: Andrew. Let me ask you this question Andrew

Andrew: Yes.

Page 4 of 35
Michael Sandel: Suppose, standing on the bridge next to the fat man, I didn't have to
push him, suppose he was standing over a trap door that I could open by turning a
steering wheel like that? Would you turn?

Andrew: For, for some reason, that still just seems more wrong. Right? I mean, maybe
if you accidentally like leaned into the steering wheel or something like that, but ah, or
say that the car is, is hurtling towards a switch that will drop the trap, umm, then I
could agree with that.

Michael Sandel: Fair enough. It still seems wrong in a way that is doesn't seem wrong
in the first case to turn you say.

Andrew: And then in another way, I mean, in the first situation, you're involved directly
with the situation. In the second one you're an onlooker as well. So you have the
choice of becoming involved or not by pushing the fat man.

Michael Sandel: Alright. Let'slet's, let's forget for the moment about this case.
That's good. Ah, let's imagine a dierent case. This time you're a doctor in an
emergency room and six patients come to you. Ah, they've been in a terrible trolley
car wreck. Five of them sustained moderate injuries, one is severely injured, you
could spend all day caring for the one severely injured victim, but in that time the five
would die, or you look after the five, restore them to health, but during that time the
one severely injured person would die. How many would save the five? Now as the
doctor, how many would save the one? Very few people. Just a handful of people.
Same reason I assume, one life versus five? Now consider another doctor case, this
time you're a transplant surgeon and you have five patients, each in desperate need
of an organ transplant in order to survive. One needs a heart, one a lung, one a
kidney, one a liver and the fifth a pancreas. And you have no organ donors. You are
about to see them die, and then, it occurs to you that in the next room there is a
healthy guy who came in for a checkup, and he's You like that? And he's, he's
taking a nap. You could go in very quietly, yank out the five organs, that person would
die, but you could save the five. How many would do it? Anyone? How many? Put
your hands up if you would do it. Anyone in the balcony?

Student: I would.

Michael Sandel: You would? Be careful, don't lean over too What, ah, how many
wouldn't? Alright. What do you say, speak up in the balcony. You who would yank out
the organs, why?

Page 5 of 35
Student G: I'd actually like to explore a slightly alternate possibility of just taking the
one of the five who needs an organ who dies first, using their four healthy organs to
save the other four.

Michael Sandel: That's a pretty good idea. That's a great idea, except for the fact that
you just wrecked the philosophical point. Well let's, let's step back from these stories
and these arguments to notice a couple of things about the way the arguments have
begun to unfold. Certain moral principles have already begun to emerge from the
discussions we've had, and let's consider what those moral principles look like. The
first moral principle that emerged in the discussion said, the right thing to do, the
moral thing to do depends on the consequences that will result from your action. At
the end of the day, better that five should live, even if one must die. That's an
example of consequentialist moral reasoning. Consequentialist moral reasoning
locates morality in the consequences of an act, in the state of the world that will
result from the thing you do. But then we went a little further, we considered those
other cases, and people weren't so sure about consequentialist moral reasoning.
When people hesitated to push the fat man over the bridge, or to yank out the organs
of the innocent patient, people gestured toward reasons having to do with the
intrinsic quality of the act itself, consequences be what they may. People were
reluctant. People thought it was just wrong, categorically wrong, to kill a person, an
innocent person, even for the sake of saving five lives. At least people thought that in
the second version of each story we considered. So, this points to a second
categorical way of thinking about moral reasoning. Categorical moral reasoning
locates morality in certain absolute moral requirements, certain categorical duties and
rights, regardless of the consequences. We're going to explore in the days and weeks
to come, the contrast between consequentialist and categorical moral principles. The
most influential example of consequential moral reasoning is utilitarianism, a doctrine
invented by Jeremy Bentham, the 18th century English political philosopher. The
most important philosopher of categorical moral reasoning is the 18th century
German philosopher Immanuel Kant. So we will look at those two dierent modes of
moral reasoning, assess them, and also consider others. If you look at the syllabus
you'll notice that we read a number of great and famous books. Books by Aristotle,
John Locke.Immanuel Kant, John Stuart Mill and others. You'll notice too, from the
syllabus that we don't only read these books, we also take up contemporary, political
and legal controversies that raise philosophical questions. We will debate equality
and inequality, armative action, free speech versus hate speech, same sex
marriage, military conscription a range of practical questions. Why? Not just to
enliven these abstract and distant books, but to make clear, to bring out what's at
stake in our everyday lives, including our political lives for philosophy. And so we will
read these books and we will debate these issues and we'll see how each informs
and illuminates the other. This may sound appealing enough, but here, I have to issue
a warning. And the warning is this, to read these books in this way, as an exercise in

Page 6 of 35
self-knowledge, to read them in this way carries certain risks. Risks that are both
personal and political. Risks that every student of political philosophy has known.
These risks spring from the fact that philosophy teaches us and unsettles us by
confronting us with what we already know. There's an irony. The diculty of this
course consists in the fact that it teaches what you already know. It works by taking
what we know from familiar unquestioned settings and making it strange. That's how
those examples work, worked. They hypotheticals with which we began with their
nicks of playfulness and sobriety. It's also how these philosophical books work.
Philosophy estranges us from the familiar, not by supplying new information, but by
inviting and provoking a new way of seeing. But, and here's the risk, once the familiar
turns strange, it's never quite the same again. Self-knowledge is like lost innocence,
however unsettling, you find it. It can never be unthought or unknown. What makes
this enterprise dicult but also riveting, is that moral and political philosophy is a
story, and you don't know where the story will lead, but what you do know is that the
story is about you. Those are the personal risks. Now what of the political risks? One
way of introducing a course like this would be to promise you, that by reading these
books and debating these issues you will become a better, more responsible citizen.
You will examine the presuppositions of public policy, you will hone you political
judgment, you will become a more eective participant in public aairs, but this
would be a partial and misleading promise. Political philosophy, for the most part,
hasn't worked that way. You have to allow for the possibility that political philosophy
may make you a worse citizen rather than a better one, or at least a worse citizen
before it makes you a better one. And that's because philosophy is a distancing,
even debilitating activity. And you see this going back to Socrates, there's a dialog,
"the Gorgias," in which one of Socrates' friends, Callicles, tries to talk him out of
philosophizing. Callicles tells Socrates, philosophy is a pretty toy, if one indulges in it
moderation at the right time of life, but if one pursues it further than one should it is
absolute ruin. Take my advice, Callicles says, abandon argument. Learn the
accomplishments of active life. Take for you models not those people who spend
their time on these petty quibbles, but those who have a good livelihood and
reputation and many other blessings. So Callicles is really saying to Socrates, quit
philosophizing, get real, go to business school. And Callicles did have a point. He
had a point because philosophy distances us from conventions, from established
assumptions and from settled beliefs. Those are the risks, personal and political. And
in the face of these risks there is a characteristic evasion. The name of the evasion is
skepticism. It's the idea, well it goes something like this, we didn't resolve, once and
for all, either the cases or the principles we were arguing when we began. And if
Aristotle and Locke and Kant and Mill haven't solved these questions after all of
these years, who are we to think that we, here in Sanders Theater over the course of
a semester can resolve them. And so maybe it's just a matter of each person having
his or her own principles and there's nothing more to be said about it, no way of
reasoning. That's the evasion, the evasion of skepticism, to which I would oer the

Page 7 of 35
following reply: It's true, these questions have been debated for a very long time, but
the very fact that they have recurred and persisted may suggest that, though they're
impossible in one sense, they're unavoidable in another. And the reason they're
unavoidable, the reason they're inescapable is that we live some answer to these
questions ever day. So skepticism, just throwing up your hands and giving up on
moral reflection is no solution. Emanuel Kant described very well the problem with
skepticism when he wrote, "Skepticism is a resting place for human reason, where it
can reflect upon its dogmatic wanderings, but it is no dwelling place for permanent
settlement. Simply to acquiesce in skepticism, Kant wrote, "Can never suce to
overcome the restlessness of reason." I've tried to suggest, through these stories and
these arguments, some sense of the risks and temptations, of the perils and the
possibilities, I would simply conclude by saying that the aim of this course is to
awaken the restlessness of reason, and to see where it might lead. Thank you very
much.

Student: Like, in a situation that desperate, you have to do what you have to do to
survive. Umm

Michael Sandel: You have to do what you have to do.

Student: You gotta do what you gotta do pretty much. If you've been going nineteen
days without any food, umm, you know, someone just has to take the sacrifice,
someone has to make the sacrifice and people can survive.

Michael Sandel: Alright. That's good, what's you name?

Student: Marcus.

Michael Sandel: Marcus? What do you say to Marcus?

Page 8 of 35
The Case for Cannibalism
Michael Sandel: Last time, we started out last time with some stories, with some
moral dilemmas about trolley cars, and about doctors and healthy patients vulnerable
to being victims of organ transplantation. We noticed two things about the arguments
we had. One had to do with the way we were arguing. We began with our judgments
in particular cases. We tried to articulate the reasons or the principles lying behind
our judgments. And then, confronted with a new case, we found ourselves
reexamining those principles, revising each in the light of the other. And we noticed
the built in pressure to try to bring into alignment our judgments about particular
cases and the principles we would endorse on reflection. We also noticed something
about the substance of the arguments that emerged from the discussion. We noticed
that sometimes we were tempted to locate the morality of an act in the
consequences, in the results, in the state of the world that it brought about. And we
called this consequentialist moral reasoning. But we also noticed that in some cases,
we weren't swayed only by the result. Sometimes, many of us felt, that not just
consequences, but also the intrinsic quality or character of the act matters morally.
Some people argued that there are certain things that are just categorically wrong,
even if they bring about a good result, even if they save five people at the cost of one
life. So we contrasted consequentialist moral principles with categorical ones. Today,
and in the next few days, we will begin to examine one of the most influential
versions of consequentialist moral theory, and that's the philosophy of utilitarianism.
Jeremy Bentham, the 18th century English political philosopher, gave first, the first
clear systematic expression to the utilitarian moral theory. And Bentham's idea, his
essential idea is a very simple one. With a lot of morally intuitive appeal, Bentham's
idea is the following. The right thing to do, the just thing to do is to maximize utility.
What did he mean by utility? He meant by utility the balance of pleasure over pain,
happiness over suering. Here's how he arrived at the principle of maximizing utility.
He started out by observing that all of us, all human beings, are governed by two
sovereign masters, pain and pleasure. We human beings like pleasure and dislike
pain. And so we should base morality, whether we are thinking what to do in our own
lives, or whether as legislators or citizens, or thinking about what the law should be,
the right thing to do, individually or collectively, is to maximize, act in a way that
maximizes the overall level of happiness. Bentham's utilitarianism is sometimes
summed up with the slogan, "the greatest good for the greatest number." With this
basic principle of utility on hand, let's begin to test it and to examine it by turning to
another case, another story. But this time, not a hypothetical story, a real life story,
the case of the Queen versus Dudley and Stephens. This was a 19th century British
law case that's famous and much debated in law schools. Here's what happened in
the case. I'll summarize the story, then I want to hear how you would rule, imagining
that you are the jury. A newspaper account of the time described the background. A
sadder story of disaster at sea was never told than that of the survivors of the yacht

Page 9 of 35
Mignonette . The ship foundered in the South Atlantic, 1300 miles from the cape.
There were four in the crew, Dudley was the captain, Stephens was the first mate,
Brooks was a sailor, all men of excellent character, or so the newspaper account tells
us. The fourth crew member was the cabin boy, Richard Parker, seventeen years old.
He was an orphan. He had no family, and he was on his first long voyage at sea. He
went, the news account tells us, rather against the advice of his friends; he went in
the hopefulness of youthful ambition thinking the journey would make a man of him.
Sadly it was not to be. The facts of the case were not in dispute. A wave hit the ship
and the Mignonette went down. The four crew members escaped to a life boat. The
only food they had were two cans of preserved turnips, no fresh water. For the first
three days they ate nothing. On the fourth day they opened one of the cans of turnips
and ate it. The next day they caught a turtle. Together with the other can of turnips,
the turtle enabled them to subsist for the next few days, and then for eight days, they
had nothing. No food, no water. Imagine yourself in a situation like that. What would
you do? Here's what they did. By now, the cabin boy Parker is lying at the bottom of
the lifeboat in the corner because he had drunk sea water against the advice of the
others and he had become ill, and he appeared to be dying. So on the nineteenth
day, Dudley the captain, suggested that they should all have a lottery. That they
should draw lots to see who would die to save the rest. Brooks refused. He didn't like
the lottery idea. We don't know whether this was because he didn't want to take the
chance or because he believed in categorical moral principles. But in any case, no
lots were drawn. The next day, there was still no ship in sight, so Dudley told Brooks
to avert his gaze and he motioned to Stephens that the boy Parker had better be
killed. Dudley oered a prayer, he told the boy his time had come, and he killed him
with a pen knife, stabbing him in the jugular vein. Brooks emerged from his
conscientious objection to share in the gruesome bounty. For four days, the three of
them fed on the body and blood of the cabin boy. True story. And then they were
rescued. Dudley describes their rescue in his diary with staggering euphemism,
quote, "On the 24th day, as we were having our breakfast, a ship appeared at last.
The three survivors were picked up by German ship, they were taken back to
Falmouth in England where they were arrested and tried. Brooks turned states
witness. Dudley and Stephens went to trial. They didn't dispute the facts. They
claimed they had acted out of necessity. That was their defense. They argued, in
eect, better that one should die so that three could survive. The prosecutor wasn't
swayed by that argument. He said murder is murder, and so the case went to trial.
Now imagine you are the jury. And just to simplify the discussion, put aside the
question of law. And let's assume that you as the jury are charged with deciding
whether what they did was morally permissible or not. How many would vote not
guilty, that what they did was morally permissible? And how many would vote guilty,
what they did was morally wrong? A pretty sizable majority now let's see what
people's reasons are and let me begin with those who are in the minority. Let's hear

Page 10 of 35
first from the defense of Dudley and Stephens. Why would you morally exonerate
them? What are your reasons? Yes.

Student 1: I think it's, I think it is morally reprehensible, but I think that there's a
distinction between what's morally reprehensible and what makes someone legally
accountable. In other words, you know, as the judge said, what's, what's always
moral isn't necessarily against the law, and while I don't think that necessity justifies
theft or murder or any illegal act that some point your degree of necessity does in fact
exonerate you from any guilt.

Michael Sandel: OK, good. Other defenders, other voices for the defense. Moral
justification for what they did. Yes.

Marcus: Alright, thank you. Umm, I just feel like, in a situation that desperate you
have to do you have to do to survive. Umm...

Michael Sandel: You have to do what you have to do.

Marcus: You have to, you gotta do what you gotta do, pretty much. If you've been
going nineteen days without any food, umm, you know, someone just has to take to
sacrifice, someone has to make the sacrifice and people can survive. And
furthermore, from that, let's say that they survive and then they become productive
members of society who go home and start, like, a million charity organizations and
this and that and this and that. I mean they benefit everybody in end, I mean, I don't
know what they did afterwards. They might've gone and like, I don't know, kill more
people, I don't know whatever, but...

Michael Sandel: What? What if they went home and turned out to be assassins?

Marcus: They went going home and turned out to be assassins? Well, ah...

Michael Sandel: You'd want to know who they assassinated.

Marcus: That's fair. That's fair. I'd want to know who they assassinated

Michael Sandel: OK. Alright, that's good. What's your name?

Marcus: Marcus.

Michael Sandel: Marcus. All right. We've heard a defense, couple of voices for the
defense. Now we need to hear from the prosecution. Most people think what they did
was wrong. Why? Yes.

Page 11 of 35
Gret: One of the first things that I was thinking was, oh, if they haven't been eating for
a really long time maybe, umm, they, that their mentally like aected, and so then that
would, that could be used as a defense, a possible argument that oh, they weren't in
the proper state of mind. They weren't making decisions they might not otherwise be
making. And if that's an appealing argument, that, that you have to be in an altered
mindset to do something like that, it suggests that people who find that argument
convincing do think that they were acting...

Michael Sandel: But I want to know what you think. You are defend them. You vote to
convict, right?

Gret: Yeah. I, I don't think that they acted in a morally appropriate way.

Michael Sandel: And why not? What do you say, here's Marcus, he just defended
them. He said, you heard what he said. He said that you've got to do what you've got
to do in a case like that.

Gret: Yeah.

Michael Sandel: What you say to Marcus?

Gret: But in, but there's no situation that would allow human beings to take the idea
of fate or that the other people's lives in their own hands, and we don't have that kind
of power.

Michael Sandel: Good. OK. Thank you. And what's you name?

Gret: Gret.

Michael Sandel: Gret.

Gret: Yes.

Michael Sandel: OK. Who else? What you say? Stand up.

Kathleen: I'm wondering if Dudley and Stephen had asked Richard, for Richard
Parker's consents in, you know, dying, umm, if that would, would that exonerate
them from, from, ah, an act of murder, and if so is that still morally justifiable?

Michael Sandel: That's interesting. All right. Consent, wait, wait, hang on. What's your
name?

Page 12 of 35
Kathleen: Kathleen.

Michael Sandel: Kathleen says, suppose they had, what would that scenario look
like? So, in this story, Dudley is there, penknife in hand, but instead of the prayer, or
before the prayer, he says Parker would you mind? We're desperately hungry, as
Marcus empathizes with. We're desperately hungry. You're not going to last long
anyhow.

Kathleen: He can be a martyr.

Michael Sandel: Would you be a martyr? How about it Parker? Then, then would,
what do you think? Would it be morally justified then? Suppose, suppose Parker, in
his semi stupor, says OK.

Kathleen: Umm, I don't think it would be morally justifiable, but I'm wondering...

Michael Sandel: Even then, even then wouldn't be?

Kathleen: No.

Michael Sandel: You don't think that, even with consent, it would be morally justified.
Are the people who think, who want to take up Kathleen's consent idea and who
think that that would make it more morally justified. Raise your hand if it would, if you
think it would. That's very interesting. Why would consent make a moral dierence?
Why would it, yes.

Student 2: Well I just think that if he was making his own original idea, and it was his
idea to start with, then that would be the only situation in which I would see it being
appropriate in anyway, because that way you couldn't make the argument that he
was pressured, you know, its three to one, or whatever the ratio was.

Michael Sandel: Right.

Student 2: And, umm, I think that if he was making a decision to give his life, and he
took on the agency, umm, to sacrifice himself, which some people might see as
admirable and other people. Umm, might disagree with that decision.

Michael Sandel: So if he came up with the idea, that's the only kind of consent we
could have confidence in, morally, then it would be OK. Otherwise it would be kind of
coerced consent under the circumstances, you think. Umm, is there anyone who

Page 13 of 35
thinks that even the consent of Parker would not justify their killing him. Who thinks
that? Yes, tell us why, standup.

Student 3: I think that, ah, Parker would be killed with the hope that the other crew
members would be rescued, so there's no definite reason that he should be killed
because you don't know who, when they're going to get rescued, so if you kill him it's
killing him in vain. Do you keep killing a crew member until you're rescued and then
you're left with no one, 'cause someone's gonna die eventually.

Michael Sandel: Well the moral logic of the the situation seems to be that. That they
would keep on picking o the weakest, maybe one by one until they were rescued.
And in this case, luckily they were rescued when three at least were still alive. Now if,
if Parker did give his consent, would it be alright, do you think, or not?

Student 3: No.

Michael Sandel: No?

Student 3: It still wouldn't be right.

Michael Sandel: and tell us why it wouldn't be alright.

Student 3: First of all cannibalism, I believe, is morally incorrect. So you shouldn't be

eating a human anyway.

Michael Sandel: So you, so cannibalism is morally objectionable, as such. So then,

even on the scenario of waiting until someone died, still it would be objectionable.

Student 3: Yes, to me personally. I feel like, umm, it all depends on one's personal
morals, and like, we can't sit here and just, like this is, just my opinion, of course
other people are going to disagree, but

Michael Sandel: Well let's see, let's see what their disagreements are, and then we'll
see if they have reasons that can persuade you or not. Let's try that. Alright, let's
umm, now is there someone who can explain, those of you who were tempted by
consent, can you explain why consent makes such a moral dierence. What about
the lottery idea. Does that count as consent? Remember, at the beginning, Dudley
proposed a lottery. Suppose that they had agreed to a lottery. Then how many would
then say it was all right. Supposed there were a lottery, cabin boy lost, and the rest of
the story unfolded. Then how many people would say it was morally permissible? So
the numbers are rising if we add a lottery. Let's hear from one of you for whom the
lottery would make a moral dierence. Why would it?

Page 14 of 35
Matt: I think the, ah, essential element in my mind that makes it a crime is the idea
that they decided at some point that their lives were more important than his, and
that, I mean that's kind of the basis for really any crime, right? It's like my needs, my
desires are more important than yours and mine take precedent. And if they had done
a lottery where everyone concented that someone should die, and it's sort of like
they're all sacrificing themselves to save the rest.

Michael Sandel: Then it would be all right.

Matt: A little grotesque, but...

Michael Sandel: But morally permissible?

Matt: Yes.

Michael Sandel: And what's your name?

Matt: Matt.

Michael Sandel: So, Matt, for you, what bothers you is not the cannibalism but the
lack of due process.

Matt: I guess you could say that.

Michael Sandel: Right. And can someone who agrees with Matt say a little bit more
about why a lottery would make it, in your view, morally permissible. Go ahead.

Student 4: The way I understood it originally was that that was the whole issue, is
that the cabin boy was never consulted about whether or not something was gonna
happen to him even with the original lottery, whether or not he would be a part of
that, it was just decided that he was the one that was going to die.

Michael Sandel: Right. That's what happened in the actual case.

Student 4: Right.

Michael Sandel: But if there were a lottery, and they'd all agreed to the procedure,
you think that would be OK.

Student 4: Right, because then everyone knows that there's gonna be a death,
whereas you know, the cabin boy didn't know that this discussion was even

Page 15 of 35
happening. There was no, you know, forewarning for him to know that, hey, I may be
the one that's dying.

Michael Sandel: Alright, now suppose he, everyone agrees to the lottery, they have
the lottery, the cabin boy loses and he changes his mind.

Student 4: You've already decided. It's like a verbal contract. You can't go back on
that. You've decided, the decision was made, you know, if you know you're dying for,
you know the reason, for others to live, you would, if someone else had died, you
know that you would consume them. So that's....

Michael Sandel: Right, but I, but then he could say, "I know, but I lost."

Student 4: I just think that's the whole moral issue, that there's no consulting of the
cabin boy, and that's what makes it the most horrible, is that he had no idea what
was even going on. That had he known what was going on, it would be a bit more
understandable.

Michael Sandel: Alright. Good. Now I want to hear, so there are some who think it's
morally permissible, but only about 20%, ah, led by Marcus. Then there are some
who say, the real problem here is the lack of consent. Whether the lack of consent to
a lottery to a fair procedure, or, Kathleen's idea, lack of consent at the moment of
death. And if we add consent, then more people are willing to consider the sacrifice
morally justified. I want to hear now, finally, from those of you who think, even with
consent, even with the lottery, even with a final murmur of consent by Parker at the
very last moment, it would still be wrong. And why would it be wrong? That's what I
want to hear. Yes.

Student 5: Well the whole time I've been leaning all towards the categorical moral
reasoning, and I think that there's a possibility I'd be OK with the idea of the lottery
and then the loser taking into their own hands to kill themselves, umm, so there
wouldn't be, you know, an active murder, but I still think that even that way, it's
coerced. And umm also, I don't think that there's any remorse. Like in Dudley's diary,
we were eating our breakfast, it seems as though he's just sort of like, um , you know,
the, the whole idea of not valuing someone else's life, so that makes me be feel like I
have to take the categorical...

Michael Sandel: You want to throw the book at him. When he lacks remorse or a
sense of having done anything wrong.

Student 5: Right.

Page 16 of 35
Michael Sandel: So, alright. Good. Other, any other defenders of a, who say
categorically, wrong with or without consent. Yes, stand up. Why?

Student 6: I think undoubtedly the way our society is shaped, murder is murder.
Murder is murder and in every way our society looks at murder down, down on it in
the same light, and I don't think it's any dierent in any case.

Michael Sandel: Good. Let me ask you a question. There were three lives at stake,
versus one.

Student 6: OK.

Michael Sandel: The one, the cabin boy, he had no family, he had no dependents,
these other three had families back home in England. They had dependents, they had
wives and children. Think back to Bentham. Bentham says we have to consider the
welfare, utility, the happiness of everybody. We have to add it all up. So it's not just
numbers, three against one, it's also all of those people at home. In fact the London
newspaper at the time and popular opinion sympathized with them. Dudley and
Stephen and the papers said if they weren't motivated by aection and concerned for
their loved ones at home and their dependants, surely they wouldn't have done this.

Student 6: Yeah and how is that any dierent from people on the corner trying, have
the same desire to feed their family. I don't think it's any dierent. I think, in any case,
if I'm murdering you to advance my status, that's murder. And I think we should look
at that all in the same light, instead of criminalizing certain activities, and , ah, and,
and, making certain things seem more violent and savage, when in the same case,
it's, it's all the same. It's all the same act and the mentality that goes into the murder
necessity to feed your family, so...

Michael Sandel: Suppose that weren't three, suppose it were thirty, three hundred,
one life to save three hundred. Or in wartime, three thousand. Suppose the stakes are
even bigger.

Student 6: Supposed the stakes are even bigger. I think it's still the right thing to do.

Michael Sandel: You think Bentham is wrong to say the same deal is to add up the
collective happiness. You think he's wrong about that?

Student 6: I don't think he's wrong, but I think murder is murder in any case.

Michael Sandel: Well then Bentham has to be wrong. If you're right he's wrong.

Page 17 of 35
Student 6: OK then he's wrong.

Michael Sandel: Alright. Thank you. Well done. Alright, let's step back from this
discussion and notice how many objections have we heard to what they did. We
heard some defenses of what they did. The defenses had to do with necessity, their
dire circumstance, and implicitly at least, the idea that numbers matter. And not only
numbers matter, but the wider aects matter. Their families back home, their
dependents. Parker was an orphan. No one would miss him. So if you add up, if you
try to calculate the balance of happiness and suering, you might have a case for
saying what they did was the right thing. Then we heard at least three dierent types
of objections. We heard an objection that said what they did was categorically wrong,
like here at the end, categorically wrong. Murder is murder is always wrong, even if it
increases the overall happiness of society. A categorical objection. But we still need
to investigate why murder is categorically wrong. Is it because even cabin boys have
certain fundamental rights? And if that's the reason, where do those rights come from
if not from some idea of the larger welfare or utility or happiness? Question number
one. Others said a lottery would make a dierence. A fair procedure, Matt said. But,
and some people were swayed by that. That's not a categorical objection exactly; it's
saying everybody has to be counted as an equal even though at the end of the day
one can be sacrificed for the general welfare. That leaves us with another question to
investigate. Why does agreement to a certain procedure even, a fair procedure, justify
whatever result flows from the operation of that procedure? Question number two.
And question number three, the basic idea of consent. Kathleen got us onto this. If
the cabin boy had agreed himself, and not under duress, as was added, then it would
be alright to take his life to save the rest. And even more people signed on to that
idea. But that raises a third philosophical question. What is the moral work that
consent does? Why does an act of consent make such a moral dierence that an act
that would be wrong, taking a life, without consent is morally permissible with
consent. To investigate those three questions, we're going to have to read some
philosophers. And starting next time, we're going to read Bentham and John Stuart
Mill, utilitarian philosophers.

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Page 18 of 35
READINGS AND DISCUSSION GUIDES
THE QUEEN VS DUDLEY AND STEPHENS (1884) (THE LIFEBOAT CASE)

A brief overview of the case: Suppose you find yourself in a situation in which killing
an innocent person is the only way to prevent many innocent people from dying.
Whats the right thing to do? This question arose in The Queen v. Dudley and
Stephens (1884), a famous English law case involving four men stranded in a lifeboat
without food or water. How should we judge the action of Dudley and Stephens? Was
it morally justified or morally wrong?

The Queen v. Dudley and Stephens

14 Queens Bench Division 273 (1884)

Criminal LawMurderKilling and eating Flesh of Human Body under Pressure of

HungerNecessitySpecial VerdictCertiorariOence on High SeasJurisdiction of
High Court.

A man who, in order to escape death from hunger, kills another for the purpose of
eating his flesh, is guilty of murder; although at the time of the act he is in such
circumstances that he believes and has reasonable ground for believing that it aords
the only chance of preserving his life.

At the trial of an indictment for murder it appeared, upon a special verdict, that the
prisoners D. and S., seamen, and the deceased, a boy between seventeen and
eighteen, were cast away in a storm on the high seas, and compelled to put into an
open boat; that the boat was drifting on the ocean, and was probably more than 1000
miles from land; that on the eighteenth day, when they had been seven days without
food and five without water, D. proposed to S. that lots should be cast who should be
put to death to save the rest, and that they afterwards thought it would be better to
kill the boy that their lives should be saved; that on the twentieth day D., with the
assent of S., killed the boy, and both D. and S. fed on his flesh for four days; that at
the time of the act there was no sail in sight nor any reasonable prospect of relief;
that under these circumstances there appeared to the prisoners every probability that
unless they then or very soon fed upon the boy, or one of themselves, they would die
of starvation:

Held, that upon these facts, there was no proof of any such necessity as could justify
the prisoners in killing the boy, and that they were guilty of murder.

Page 19 of 35
INDICTMENT for the murder of Richard Parker on the high seas within the jurisdiction
of the Admiralty:

At the trial before Huddleston, B., at the Devon and Cornwall Winter Assizes,
November 7, 1884, the jury, at the suggestion of the learned judge, found the facts of
the case in a special verdict which stated that on July 5, 1884, the prisoners,
Thomas Dudley and Edward Stephens, with one Brooks, all able-bodied English
seamen, and the deceased also an English boy, between seventeen and eighteen
years of age, the crew of an English yacht, a registered English vessel, were cast
away in a storm on the high seas 1600 miles from the Cape of Good Hope, and were
compelled to put into an open boat belonging to the said yacht. That in this boat they
had no supply of water and no supply of food, except two 1 lb. tins of turnips, and for
three days they had nothing else to subsist upon. That on the fourth day they caught
a small [p. 274] turtle, upon which they subsisted for a few days, and this was the
only food they had up to the twentieth day when the act now in question was
committed. That on the twelfth day the turtle were entirely consumed, and for the
next eight days they had nothing to eat. That they had no fresh water, except such
rain as they from time to time caught in their oilskin capes. That the boat was drifting
on the ocean, and was probably more than 1000 miles away from land. That on the
eighteenth day, when they had been seven days without food and five without water,
the prisoners spoke to Brooks as to what should be done if no succour came, and
suggested that some one should be sacrificed to save the rest, but Brooks dissented,
and the boy, to whom they were understood to refer, was not consulted. That on the
24th of July, the day before the act now in question, the prisoner Dudley proposed to
Stephens and Brooks that lots should be cast who should be put to death to save the
rest, but Brooks refused consent, and it was not put to the boy, and in point of fact
there was no drawing of lots. That on that day the prisoners spoke of their having
families, and suggested it would be better to kill the boy that their lives should be
saved, and Dudley proposed that if there was no vessel in sight by the morrow
morning the boy should be killed. That next day, the 25th of July, no vessel
appearing, Dudley told Brooks that he had better go and have a sleep, and made
signs to Stephens and Brooks that the boy had better be killed. The prisoner
Stephens agreed to the act, but Brooks dissented from it. That the boy was then
lying at the bottom of the boat quite helpless, and extremely weakened by famine
and by drinking sea water, and unable to make any resistance, nor did he ever assent
to his being killed. The prisoner Dudley oered a prayer asking forgiveness for them
all if either of them should be tempted to commit a rash act, and that their souls
might be saved. That Dudley, with the assent of Stephens, went to the boy, and
telling him that his time was come, put a knife into his throat and killed him then and
there; that the three men fed upon the body and blood of the boy for four days; that
on the fourth day after the act had been committed the boat was picked up by a
passing vessel, and the prisoners were rescued, still alive, but in the lowest state of

Page 20 of 35
prostration. That they were carried to the [p. 275] port of Falmouth, and committed
for trial at Exeter. That if the men had not fed upon the body of the boy they would
probably not have survived to be so picked up and rescued, but would within the four
days have died of famine. That the boy, being in a much weaker condition, was likely
to have died before them. That at the time of the act in question there was no sail in
sight, nor any reasonable prospect of relief. That under these circumstances there
appeared to the prisoners every probability that unless they then fed or very soon fed
upon the boy or one of themselves they would die of starvation. That there was no
appreciable chance of saving life except by killing some one for the others to eat.
That assuming any necessity to kill anybody, there was no greater necessity for killing
the boy than any of the other three men. But whether upon the whole matter by the
jurors found the killing of Richard Parker by Dudley and Stephens be felony and
murder the jurors are ignorant, and pray the advice of the Court thereupon, and if
upon the whole matter the Court shall be of opinion that the killing of Richard Parker
be felony and murder, then the jurors say that Dudley and Stephens were each guilty
of felony and murder as alleged in the indictment.

The learned judge then adjourned the assizes until the 25th of November at the Royal
Courts of Justice. On the application of the Crown they were again adjourned to the
4th of December, and the case ordered to be argued before a Court consisting of five
judges.

Dec. 4.

Sir H. James, A.G. (A. Charles, Q.C., C. Mathews and Dankwerts with him),
appeared for the Crown.

With regard to the substantial question in the casewhether the prisoners in killing
Parker were guilty of murderthe law is that where a private person acting upon his
own judgment takes the life of a fellow creature, his act can only be justified on the
ground of self-defenceself-defence against the acts of the person whose life is
taken. This principle has been extended to include the case of a man killing another
to prevent him from committing some great crime upon a third person. But the
principle has no application to this case, for the prisoners were not protecting
themselves against any act of Parker. If he had had food in his possession and they
had taken it from him, they would have been guilty of theft; and if they killed him to
obtain this food, they would have been guilty of murder.

A. Collins, Q.C., for the prisoners.

The facts found on the special verdict shew that the prisoners were not guilty of
murder, at the time when they killed Parker but killed him under the pressure of
necessity. Necessity will excuse an act which would otherwise be a crime. Stephen,

Page 21 of 35
Digest of Criminal Law, art. 32, Necessity. The law as to compulsion by necessity is
further explained in Stephens History of the Criminal Law, vol. ii., p. 108, and an
opinion is expressed that in the case often put by casuists, of two drowning men on a
plank large enough to support one only, and one thrusting the other o, the survivor
could not be subjected to legal punishment. In the American case of The United
States v. Holmes, the proposition that a passenger on board a vessel may be thrown
overboard to save the others is sanctioned. The law as to inevitable necessity is fully
considered [p. 278] in Russell on Crimes, vol. i. p. 847, and there are passages
relating it in Bracton, vol. ii. p. 277; Hales Pleas of the Crown, p. 54 and c. 40; Easts
Pleas of the Crown, p. 221, citing Dalton, c. 98, Homicide of Necessity, and several
cases . . . . Lord Bacon, Bac. Max., Reg. 5, gives the instance of two shipwrecked
persons clinging to the same plank and one of them thrusting the other from it,
finding that it will not support both, and says that this homicide is excusable through
unavoidable necessity and upon the great universal principle of self-preservation,
which prompts every man to save his own life in preference to that of another where
one of them must inevitably perish. It is true that Hales Pleas of the Crown, p. 54,
states distinctly that hunger is no excuse for theft, but that is on the ground that there
can be no such extreme necessity in this country. In the present case the prisoners
were in circumstances where no assistance could be given. The essence of the crime
of murder is intention, and here the intention of the prisoners was only to preserve
their lives.

Dec. 9.

The judgment of the Court (Lord Coleridge, C.J., Grove and Denman, JJ., Pollock and
Huddleston, B-B.) was delivered by LORD COLERIDGE, C.J.

The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the
murder of Richard Parker on the high seas on the 25th of July in the present year.
They were tried before my Brother Huddleston at Exeter on the 6th of November, and
under the direction of my learned Brother, the jury returned a special verdict, the legal
eect of which has been argued before us, and on which we are now to pronounce
judgment.

The special verdict as, after certain objections by Mr. Collins to which the Attorney
General yielded, it is finally settled before us is as follows. (His Lordship read the
special verdict as above set out.) From these facts, stated with the cold precision of
a special verdict, it appears suciently that the prisoners were subject to terrible
temptation, to suerings which might break down the bodily power of the strongest
man and try the conscience of the best. Other details yet more harrowing, facts still
more loathsome and appalling, were presented to the jury, and are to be found
recorded in my learned Brothers notes. But nevertheless this is clear, that the

Page 22 of 35
prisoners put to death a weak and unoending boy upon the chance of preserving
their own lives by feeding upon his flesh and blood after he was killed, and with the
certainty of depriving him of any possible chance of survival. The verdict finds in
terms that if the men had not fed upon the body of the boy they would probably not
have survived, and that, the boy being in a much weaker condition was likely to
have died before them. They might possibly have been picked up next day by a
passing ship; they might possibly not have been picked up at all; in either case it is
obvious that the killing of the boy would have been an unnecessary and profitless
act. It is found by the verdict that the boy was incapable of resistance, and, in fact,
made none; and it is not even suggested that his death was due to any violence on
his part attempted against, or even so much as feared by, those who killed him.
Under these circumstances the jury say that they are ignorant whether those who
killed him were guilty of murder, and have referred it to this Court to [p. 280]
determine what is the legal consequence which follows from the facts which they
have found.

There remains to be considered the real question in the case whether killing under
the circumstances set forth in the verdict be or be not murder. The contention that it
could be anything else was, to the minds of us all, both new and strange, and we
stopped the Attorney General in his negative argument in order that we might hear
what could be said in support of a proposition which appeared to us to be at once
dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt,
that can be said has been urged before us, and we are now to consider and
determine what it amounts to. First it is said that it follows from various definitions of
murder in books of authority, which definitions imply, if they do not state, the
doctrine, that in order to save your own life you may lawfully take away the life of
another, when that other is neither attempting nor threatening yours, nor is guilty of
any illegal act whatever towards you or any one else. But if these definitions be
looked at they will not be found to sustain this contention.

Now, except for the purpose of testing how far the conservation of a mans own life is
in all cases and under all circumstances an absolute, unqualified, and paramount
duty, we exclude from our consideration all the incidents of war. We are dealing with a
case of private homicide, not one imposed upon men in the service of their Sovereign
and in the defence of their country. Now it is admitted that the deliberate killing of
this unoending and unresisting boy was clearly murder, unless the killing can be [p.
287] justified by some well-recognised excuse admitted by the law. It is further
admitted that there was in this case no such excuse, unless the killing was justified
by what has been called necessity. But the temptation to the act which existed
here was not what the law has ever called necessity. Nor is this to be regretted.
Though law and morality are not the same, and many things may be immoral which
are not necessarily illegal, yet the absolute divorce of law from morality would be of

Page 23 of 35
fatal consequence; and such divorce would follow if the temptation to murder in this
case were to be held by law an absolute defence of it. It is not so. To preserve ones
life is generally speaking a duty, but it may be the plainest and the highest duty to
sacrifice it. War is full of instances in which it is a mans duty not to live, but to die.
The duty, in case of shipwreck, of a captain to his crew, of the crew to the
passengers, of soldiers to women and children, as in the noble case of the
Birkenhead; these duties impose on men the moral necessity, not of the
preservations but of the sacrifice of their lives for others, from which in no country,
least of all, it is to be hoped, in England, will men ever shrink as indeed, they have not
shrunk. It is not correct, therefore, to say that there is any absolute or unqualified
necessity to preserve ones life. Necesse est ut eam, non ut vivam, is a saying of a
Roman ocer quoted by Lord Bacon himself with high eulogy in the very chapter on
necessity to which so much reference has been made. It would be a very easy and
cheap display of commonplace learning to quote from Greek and Latin authors, from
Horace, from Juvenal, from Cicero, from Euripides, passage after passages, in which
the duty of dying for others has been laid down in glowing and emphatic language as
resulting from the principles of heathen ethics; it is enough in a Christian country to
remind ourselves of the Great Example whom we profess to follow. It is not needful
to point out the awful danger of admitting the principle which has been contended
for. Who is to be the judge of this sort of necessity? By what measure is the
comparative value of lives to be measured? Is it to be strength, or intellect, or what ?
It is plain that the principle leaves to him who is to profit by it to determine the
necessity which will justify him in deliberately taking anothers life to save his own. In
this case the weakest, the youngest, the most unresisting, was chosen. Was it more
[p. 288] necessary to kill him than one of the grown men? The answer must be No

So spake the Fiend, and with necessity,

The tyrants plea, excused his devilish deeds.

It is not suggested that in this particular case the deeds were devilish, but it is quite
plain that such a principle once admitted might be made the legal cloak for unbridled
passion and atrocious crime. There is no safe path for judges to tread but to
ascertain the law to the best of their ability and to declare it according to their
judgment; and if in any case the law appears to be too severe on individuals, to leave
it to the Sovereign to exercise that prerogative of mercy which the Constitution has
intrusted to the hands fittest to dispense it.

It must not be supposed that in refusing to admit temptation to be an excuse for

crime it is forgotten how terrible the temptation was; how awful the suering; how
hard in such trials to keep the judgment straight and the conduct pure. We are often
compelled to set up standards we cannot reach ourselves, and to lay down rules

Page 24 of 35
which we could not ourselves satisfy. But a man has no right to declare temptation
to be an excuse, though he might himself have yielded to it, nor allow compassion for
the criminal to change or weaken in any manner the legal definition of the crime. It is
therefore our duty to declare that the prisoners act in this case was wilful murder,
that the facts as stated in the verdict are no legal justification of the homicide; and to
say that in our unanimous opinion the prisoners are upon this special verdict guilty, of
murder. [n. 1]

THE COURT then proceeded to pass sentence of death upon the prisoners. [n. 2]

Solicitors for the Crown: The Solicitors for the Treasury.

Solicitors for the prisoners: Irvine & Hodges.

1. My brother Grove has furnished me with the following suggestion, too late to be
embodied in the judgment but well worth preserving: If the two accused men were
justified in killing Parker, then if not rescued in time, two of the three survivors would
be justified in killing the third, and of two who remained the stronger would be
justified in killing the weaker, so that three men might be justifiably killed to give the
fourth a chance of surviving. C.

2. This sentence was afterwards commuted by the Crown to six months

imprisonment.

Page 25 of 35
JEREMY BENTHAM, PRINCIPLES OF MORALS AND LEGISLATION (1780)

A brief overview of the reading: One familiar way to think about the right thing to do is
to ask what will produce the greatest amount of happiness for the greatest number of
people. This way of thinking about morality finds its clearest expression in the
philosophy of Jeremy Bentham (1748-1832). In his Introduction to the Principles of
Morals and Legislation (1780), Bentham argues that the principle of utility should be
the basis of morality and law, and by utility he understands whatever promotes
pleasure and prevents pain. Is the principle of utility the right guide to all questions of
right and wrong?

Chapter I. Of the Principle of Utility.

I. Nature has placed mankind under the governance of two sovereign masters, pain
and pleasure. It is for them alone to point out what we ought to do, as well as to
determine what we shall do. On the one hand the standard of right and wrong, on the
other the chain of causes and eects, are fastened to their throne. They govern us in
all we do, in all we say, in all we think: every eort we can make to throw o our
subjection, will serve but to demonstrate and confirm it. In words a man may pretend
to abjure their empire: but in reality he will remain subject to it all the while. The
principle of utility recognizes this subjection, and assumes it for the foundation of that
system, the object of which is to rear the fabric of felicity by the hands of reason and
of law. Systems which attempt to question it, deal in sounds instead of sense, in
caprice instead of reason, in darkness instead of light.

But enough of metaphor and declamation: it is not by such means that moral science
is to be improved.

II. The principle of utility is the foundation of the present work: it will be proper
therefore at the outset to give an explicit and determinate account of what is meant
by it. By the principle of utility is meant that principle which approves or disapproves
of every action whatsoever. according to the tendency it appears to have to augment
or diminish the happiness of the party whose interest is in question: or, what is the
same thing in other words to promote or to oppose that happiness. I say of every
action whatsoever, and therefore not only of every action of a private individual, but of
every measure of government.

III. By utility is meant that property in any object, whereby it tends to produce benefit,
advantage, pleasure, good, or happiness, (all this in the present case comes to the
same thing) or (what comes again to the same thing) to prevent the happening of
mischief, pain, evil, or unhappiness to the party whose interest is considered: if that

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party be the community in general, then the happiness of the community: if a
particular individual, then the happiness of that individual.

IV. The interest of the community is one of the most general expressions that can
occur in the phraseology of morals: no wonder that the meaning of it is often lost.
When it has a meaning, it is this. The community is a fictitious body, composed of the
individual persons who are considered as constituting as it were its members. The
interest of the community then is, what is it? the sum of the interests of the several
members who compose it.

V. It is in vain to talk of the interest of the community, without understanding what is

the interest of the individual. A thing is said to promote the interest, or to be for the
interest, of an individual, when it tends to add to the sum total of his pleasures: or,
what comes to the same thing, to diminish the sum total of his pains.

VI. An action then may be said to be conformable to then principle of utility, or, for
shortness sake, to utility, (meaning with respect to the community at large) when the
tendency it has to augment the happiness of the community is greater than any it has
to diminish it.

VII. A measure of government (which is but a particular kind of action, performed by a

particular person or persons) may be said to be conformable to or dictated by the
principle of utility, when in like manner the tendency which it has to augment the
happiness of the community is greater than any which it has to diminish it.

VIII. When an action, or in particular a measure of government, is supposed by a man

to be conformable to the principle of utility, it may be convenient, for the purposes of
discourse, to imagine a kind of law or dictate, called a law or dictate of utility: and to
speak of the action in question, as being conformable to such law or dictate.

IX. A man may be said to be a partizan of the principle of utility, when the approbation
or disapprobation he annexes to any action, or to any measure, is determined by and
proportioned to the tendency which he conceives it to have to augment or to diminish
the happiness of the community: or in other words, to its conformity or unconformity
to the laws or dictates of utility.

X. Of an action that is conformable to the principle of utility one may always say
either that it is one that ought to be done, or at least that it is not one that ought not
to be done. One may say also, that it is right it should be done; at least that it is not
wrong it should be done: that it is a right action; at least that it is not a wrong action.
When thus interpreted, the words ought, and right and wrong and others of that
stamp, have a meaning: when otherwise, they have none.

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XI. Has the rectitude of this principle been ever formally contested? It should seem
that it had, by those who have not known what they have been meaning. Is it
susceptible of any direct proof? it should seem not: for that which is used to prove
every thing else, cannot itself be proved: a chain of proofs must have their
commencement somewhere. To give such proof is as impossible as it is needless.

XII. Not that there is or ever has been that human creature at breathing, however
stupid or perverse, who has not on many, perhaps on most occasions of his life,
deferred to it. By the natural constitution of the human frame, on most occasions of
their lives men in general embrace this principle, without thinking of it: if not for the
ordering of their own actions, yet for the trying of their own actions, as well as of
those of other men. There have been, at the same time, not many perhaps, even of
the most intelligent, who have been disposed to embrace it purely and without
reserve. There are even few who have not taken some occasion or other to quarrel
with it, either on account of their not understanding always how to apply it, or on
account of some prejudice or other which they were afraid to examine into, or could
not bear to part with. For such is the stu that man is made of: in principle and in
practice, in a right track and in a wrong one, the rarest of all human qualities is
consistency.

XIII. When a man attempts to combat the principle of utility, it is with reasons drawn,
without his being aware of it, from that very principle itself. His arguments, if they
prove any thing, prove not that the principle is wrong, but that, according to the
applications he supposes to be made of it, it is misapplied. Is it possible for a man to
move the earth? Yes; but he must first find out another earth to stand upon.

XIV. To disprove the propriety of it by arguments is impossible; but, from the causes
that have been mentioned, or from some confused or partial view of it, a man may
happen to be disposed not to relish it. Where this is the case, if he thinks the settling
of his opinions on such a subject worth the trouble, let him take the following steps,
and at length, perhaps, he may come to reconcile himself to it.

1. Let him settle with himself, whether he would wish to discard this principle
altogether; if so, let him consider what it is that all his reasonings (in matters of
politics especially) can amount to?

2. If he would, let him settle with himself, whether he would judge and act without any
principle, or whether there is any other he would judge an act by?

3. If there be, let him examine and satisfy himself whether the principle he thinks he
has found is really any separate intelligible principle; or whether it be not a mere
principle in words, a kind of phrase, which at bottom expresses neither more nor less

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than the mere averment of his own unfounded sentiments; that is, what in another
person he might be apt to call caprice?

4. If he is inclined to think that his own approbation or disapprobation, annexed to the

idea of an act, without any regard to its consequences, is a sucient foundation for
him to judge and act upon, let him ask himself whether his sentiment is to be a
standard of right and wrong, with respect to every other man, or whether every mans
sentiment has the same privilege of being a standard to itself?

5. In the first case, let him ask himself whether his principle is not despotical, and
hostile to all the rest of human race?

6. In the second case, whether it is not anarchial, and whether at this rate there are
not as many dierent standards of right and wrong as there are men? and whether
even to the same man, the same thing, which is right today, may not (without the
least change in its nature) be wrong tomorrow? and whether the same thing is not
right and wrong in the same place at the same time? and in either case, whether all
argument is not at an end? and whether, when two men have said, I like this, and I
dont like it, they can (upon such a principle) have any thing more to say?

7. If he should have said to himself, No: for that the sentiment which he proposes as
a standard must be grounded on reflection, let him say on what particulars the
reflection is to turn? if on particulars having relation to the utility of the act, then let
him say whether this is not deserting his own principle, and borrowing assistance
from that very one in opposition to which he sets it up: or if not on those particulars,
on what other particulars?

8. If he should be for compounding the matter, and adopting his own principle in part,
and the principle of utility in part, let him say how far he will adopt it?

9. When he has settled with himself where he will stop, then let him ask himself how
he justifies to himself the adopting it so far? and why he will not adopt it any farther?

10. Admitting any other principle than the principle of utility to be a right principle, a
principle that it is right for a man to pursue; admitting (what is not true) that the word
right can have a meaning without reference to utility, let him say whether there is any
such thing as a motive that a man can have to pursue the dictates of it: if there is, let
him say what that motive is, and how it is to be distinguished from those which
enforce the dictates of utility: if not, then lastly let him say what it is this other
principle can be good for?

Chapter IV. Value of a Lot of Pleasure or Pain, How to be Measured.

I. Pleasures then, and the avoidance of pains, are the ends that the legislator has in
view; it behoves him therefore to understand their value. Pleasures and pains are the
instruments he has to work with: it behoves him therefore to understand their force,
which is again, in other words, their value.

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II. To a person considered by himself, the value of a pleasure or pain considered by
itself, will be greater or less, according to the four following circumstances:

1. Its intensity.

2. Its duration.

3. Its certainty or uncertainty.

4. Its propinquity or remoteness.

III. These are the circumstances which are to be considered in estimating a pleasure
or a pain considered each of them by itself. But when the value of any pleasure or
pain is considered for the purpose of estimating the tendency of any act by which it is
produced, there are two other circumstances to be taken into the account;

these are,

5. Its fecundity, or the chance it has of being followed by sensations of the same
kind: that is, pleasures, if it be a pleasure: pains, if it be a pain.

6. Its purity, or the chance it has of not being followed by sensations of the opposite
kind: that is, pains, if it be a pleasure: pleasures, if it be a pain.

These two last, however, are in strictness scarcely to be deemed properties of the
pleasure or the pain itself; they are not, therefore, in strictness to be taken into the
account of the value of that pleasure or that pain. They are in strictness to be deemed
properties only of the act, or other event, by which such pleasure or pain has been
produced; and accordingly are only to be taken into the account of the tendency of
such act or such event.

IV. To a number of persons, with reference to each of whom to the value of a pleasure
or a pain is considered, it will be greater or less, according to seven circumstances:
to wit, the six preceding ones; viz.,

1. Its intensity.

2. Its duration.

3. Its certainty or uncertainty.

4. Its propinquity or remoteness.

5. Its fecundity.

6. Its purity.

And one other; to wit:

7. Its extent; that is, the number of persons to whom it extends; or (in other words)
who are aected by it.

V. To take an exact account then of the general tendency of any act, by which the
interests of a community are aected, proceed as follows. Begin with any one person
of those whose interests seem most immediately to be aected by it: and take an
account,

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1. Of the value of each distinguishable pleasure which appears to be produced by it
in the first instance.

2. Of the value of each pain which appears to be produced by it in the first instance.

3. Of the value of each pleasure which appears to be produced by it after the first.
This constitutes the fecundity of the first pleasure and the impurity of the first pain.

4. Of the value of each pain which appears to be produced by it after the first. This
constitutes the fecundity of the first pain, and the impurity of the first pleasure.

5. Sum up all the values of all the pleasures on the one side, and those of all the
pains on the other. The balance, if it be on the side of pleasure, will give the good
tendency of the act upon the whole, with respect to the interests of that individual
person; if on the side of pain, the bad tendency of it upon the whole.

6. Take an account of the number of persons whose interests appear to be

concerned; and repeat the above process with respect to each. Sum up the numbers
expressive of the degrees of good tendency, which the act has, with respect to each
individual, in regard to whom the tendency of it is good upon the whole: do this again
with respect to each individual, in regard to whom the tendency of it is good upon the
whole: do this again with respect to each individual, in regard to whom the tendency
of it is bad upon the whole. Take the balance which if on the side of pleasure, will give
the general good tendency of the act, with respect to the total number or community
of individuals concerned; if on the side of pain, the general evil tendency, with respect
to the same community.

VI. It is not to be expected that this process should be strictly pursued previously to
every moral judgment, or to every legislative or judicial operation. It may, however, be
always kept in view: and as near as the process actually pursued on these occasions
approaches to it, so near will such process approach to the character of an exact
one.

VII. The same process is alike applicable to pleasure and pain, in whatever shape
they appear: and by whatever denomination they are distinguished: to pleasure,
whether it be called good (which is properly the cause or instrument of pleasure) or
profit (which is distant pleasure, or the cause or instrument of, distant pleasure,) or
convenience, or advantage, benefit, emolument, happiness, and so forth: to pain,
whether it be called evil, (which corresponds to good) or mischief, or inconvenience
or disadvantage, or loss, or unhappiness, and so forth.

VIII. Nor is this a novel and unwarranted, any more than it is a useless theory. In all
this there is nothing but what the practice of mankind, wheresoever they have a clear
view of their own interest, is perfectly conformable to. An article of property, an estate
in land, for instance, is valuable, on what account? On account of the pleasures of all
kinds which it enables a man to produce, and what comes to the same thing the
pains of all kinds which it enables him to avert. But the value of such an article of

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property is universally understood to rise or fall according to the length or shortness
of the time which a man has in it: the certainty or uncertainty of its coming into
possession: and the nearness or remoteness of the time at which, if at all, it is to
come into possession. As to the intensity of the pleasures which a man may derive
from it, this is never thought of, because it depends upon the use which each
particular person may come to make of it; which cannot be estimated till the
particular pleasures he may come to derive from it, or the particular pains he may
come to exclude by means of it, are brought to view. For the same reason, neither
does he think of the fecundity or purity of those pleasures. Thus much for pleasure
and pain, happiness and unhappiness, in general. We come now to consider the
several particular kinds of pain and pleasure.

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LECTURE 1 DISCUSSION GUIDE
(BEGINNER)
WELCOME TO THE STUDY OF JUSTICE!

Lets start with utilitarianism. According to the principle of utility, we should always do
whatever will produce the greatest amount of happiness and whatever is necessary
to prevent the greatest amount of unhappiness. But is that right? Should you always
try to maximize happiness? Should you always do whatever is necessary to minimize
unhappiness?

There are times when the only way to prevent harm to a large number of people is to
harm a smaller number of people. Is it always permissible to harm a smaller number
in order to prevent harm to a large number?

Suppose you are driving through a narrow tunnel and a worker falls onto the road in
front of you. There is not enough time for you to stop. If you keep straight, you will hit
the worker and kill him, but if you swerve left into oncoming trac, you will collide
with a school bus and kill at least five children. Whats the right thing to do? Does
utilitarianism have the right answer?

Ten thousand innocent civilians live next to a munitions factory in a country at war. If
you bomb the factory, all of them will die. If you dont bomb the factory, it will be used
to produce bombs that will be dropped on fifty thousand innocent civilians in another
country. Whats the right thing to do?

Suppose a man has planted a bomb in New York City, and it will explode in twenty-
four hours unless the police are able to find it. Should it be legal for the police to use
torture to extract information from the suspected bomber?

Now suppose the man who has planted the bomb will not reveal the location unless
an innocent member of his family is tortured. Should it be legal for the police to
torture innocent people, if that is truly the only way to discover the location of a large
bomb?

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LECTURE 1 DISCUSSION GUIDE
(ADVANCED)
WELCOME TO THE STUDY OF JUSTICE!

Episode One opens our study of justice by considering the philosophy of

utilitarianism. A good way to continue the discussion is to consider the principle of
utility and to ask whether it always gets the right answer.

Harming the Innocent

According to the principle of utility, we should always do whatever will produce the
greatest amount of happiness and whatever is necessary to prevent the greatest
amount of unhappiness. But what if the only way to produce happiness, and to
prevent unhappiness, is to harm or even kill innocent people?

Suppose you are driving through a narrow tunnel and a worker falls onto the road in
front of you. There is not enough time for you to stop. If you keep straight, you will hit
the worker and kill him, but if you swerve left into oncoming trac, you will collide
with a school bus and kill at least five children. Whats the right thing to do? Does
utilitarianism get the right answer?

Suppose ten thousand innocent civilians live next to a munitions factory in a country
at war. If you bomb the factory, all of them will die. If you dont bomb the factory, it
will be used to produce bombs that will be dropped on fifty thousand innocent
civilians in another country. Whats the right thing to do? Does utilitarianism get the
right answer?

Suppose a man has planted a bomb in New York City, and it will explode in twenty-
four hours unless the police are able to find it. Should it be legal for the police to use
torture to extract information from the suspected bomber? Does utilitarianism get the
right answer?

Now suppose the man who has planted the bomb will not reveal the location unless
an innocent member of his family is tortured. Should it be legal for the police to
torture innocent people, if that is truly the only way to discover the location of a large
bomb? Does utilitarianism have the right answer?

Telling the Truth

The principle of utility tells us to do whatever is necessary to minimize pain and

unhappiness, but pain and unhappiness have many sources. There are times when
telling people the truth would make them very unhappy. Should you lie to a person
whenever lying is the only way to spare his or her feelings and prevent unhappiness?

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Suppose your friend likes to sing in the shower, and he thinks he is an excellent
singer. In fact, however, he sounds truly awful. Should you tell him the truth, even if it
will ruin his self-confidence? Does utilitarianism have the right answer?

Suppose a man has been missing for many years, and you have just learned that he
is dead. Should you tell the mans father, even if it will crush his hopes and send him
into despair? Does utilitarianism have the right answer?

If you think it would be wrong to lie in one or both of these cases, do you think there
is sometimes a moral duty to tell the truth despite the consequences? Does this duty
mean that the principle of utility is mistaken?

Living Your Life

The principle of utility says that we should always maximize happiness. It does not
matter whether we are deciding on the laws of our country as citizens and ocials, or
whether we are deciding what to do in our own private lives. In every possible case,
the principle of utility tells us to choose the course of action that will produce the
greatest amount of happiness. Is that right?

here are many needy people in the world who could benefit from your help. If you
were to volunteer one evening per week, you could reduce need and thereby increase
the sum of happiness. But if you were to volunteer all of your evenings, then you
could produce even more happiness. Should you volunteer all of your spare time to
helping the needy? Would it be wrong not to do so?

There are many poor people in the world who lack the money to buy food, clothing,
shelter, and medicine. If you were to donate $100 to a charity such as Oxfam, then
some of these people would get what they desperately need and you would thereby
increase happiness. But if you were to donate all of your spare income each month,
then even more people would get what they desperately need and you would
produce even more happiness. Should you donate all of your spare income to
charities such as Oxfam? Would it be wrong not to do so?

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