This essay is going to address the trolley problem. I will use positivist theories to support arguments, particularly H.L.A Hart. Natural law theories, specifically those of John Finnis will be referred to. The last part will then conclude by providing an answer to the trolley problem. What is law and when does it become functional in society? This question will not be central to this essay, but it serves to contextualise the trolley problem that I will discuss shortly. Finnis, who is a substantive legal theorist, would explain that law is human law i.e. the translated natural law or moral truths into legislative promulgations and backed up by sanctions 1. Hart would say that law is any legislative promulgation that is in line with the rule of recognition, and backed up by sanctions 2. Hart would further stress that the existence of law, is not necessarily dependent on morality, though it may, but not necessarily 3. The rule of recognition may be based on moral criteria, thus giving rise to laws that must satisfy such criteria, which, Hart classifies under inclusive positivism 4. The trolley problem was proposed by Philippa Foot and it has been exemplified in many ways by others such as Thomson 5. The problem is like this, suppose that a driver of a trolley suddenly loses control over it as the trolley s brakes become non-functional 6. Directly ahead, are five male prisoners, working on the track 7. The track, just before the part being worked on, loops a bit to the right, and at the end of the loop or curve is a little girl, completely oblivious, as the five men are, on what is about to unfold. The driver of the trolley is faced with two choices, either he steers the trolley and he kills the little girl, or he takes no action and the five men die 8. Neither the men or the girl can escape in time and it is inevitable that either the girl or the five men die 9. Most people would feel that to let the five men die is better than killing the girl 10. But why is this the case? This is a hard case as there is no hard and fast answer to the problem. Mrs Foot s answer to the problem is that there is a strict negative duty not to kill the girl and there is a positive duty to save lives and the negative duty outweighs the number of people on 1 Denise Meyerson Jurisprudence (2014) 111. 2 Ibid at 43. 3 Ibid at 80. 4 Ibid. 5 Judith Jarvith Thomson The Trolley Problem (1985) 94 The Yale Law Journal 1395-1415. 6 Ibid at 1395. 7 Ibid. 8 Ibid. 9 John M. Taurek Should Numbers Count? (1977) 6 Wiley 293-316. 10 Op cit note 5 at 1396. 1
the track, whether they are ten and there be one girl 11. Taurek also considers the number of people as a factor giving rise to a moral duty to save the five 12. He concludes that the choice would rest on a consideration of special factors or the value of the individuals concerned 13. In this case, the special factors are that the men are prisoners while the girl is innocent. The trolley problem, according to Thomson represents what is bad distribution in the Trolley Problem and he states that to further clarify the matter, examples about the good distribution must be taken into account. He makes an example of a health-pebble that is drifting on the shore 14. On one side of the bank are five men and on the other, is one man 15. Five of the men need the health-pebble to cure some disease, on whom it will be divided among (the pebble) 16. The one man also suffers from a disease and is in need of it to be cured 17. The question is who has a claim on the pebble, all other things being equal 18. Taurek makes an almost similar illustration using an example of a drug. He states that the drug is to be divided into five portions among the five men, but if it were to be administered to the one, he would use it wholly for his health to return 19. Thomson states that if all other things were equal, that is, no one having a claim on it, then the pebble should be distributed according to the most beneficial way 20. Thus it should be given to the five. Taurek on the other hand states that the drug, other things being equal, should be given to the five because that would save more people than the one 21. This touches on Finnis s idea of the common good. Simmonds states that the idea of law is based on it functioning as a device that can be used for diverse purposes 22. Here, he means that law becomes the practical point i.e. the purpose of law being to serve moral ideals 23. But could we say that this is the law in this situation? I should think so. Thomson states that the pebble 11 Judith Jarvith Thomson Killing, Letting Die and the Trolley Problem (1976) 59 Oxford University Press 204-217. 12 Op cit note 9 at 294. 13 Ibid at 314. 14 Op cit note 11 at 209. 15 Ibid. 16 Ibid. 17 Ibid. 18 Op cit note 11 at 210. 19 Op cit note 14. 20 Op cit note 11 at 215. 21 Op cit note 12. 22 N.E. Simmonds Law as a Moral Idea (2005) 55 University of Toronto Press 61-92. 23 Op cit note 1 at 118. 2
may be given to the five men and not that it must 24. However, I am of the view that not only a moral duty, but a legal one could arise in this situation. Hart would say that it would be unobjectionable for an individual in the position of the trolley driver to ignore the trolley, and let it take its own course, provided that the law did not sanction this (legal duty to act- to steer the trolley that it end up killing the one girl). Thus Hart would point to the rule of recognition 25. It would have to be used in order to identify the primary rules of the society that the driver is a part of. This would then inform the driver of the course of action that he must take as he himself would have internalized the law. This then shows that there is no clear distinction between law and morality for I think Hart would say that our choice in the problem is to be informed by the rule of recognition. Taking into account that Hart accepts inclusive positivism, the rule of recognition could base more importance in the saving of lives. This then would become a norm in such a society, morality being the principle of legality. Thus Hart could say that there is a duty, perhaps a legal one to give the pebble to the five since this is the morality of the rule of recognition. Thus this would be the relationship between morality and law of this situation. Now going back to the trolley problem, the trolley is the bad distribution of the situation 26. Now how do we achieve the common good by distributing the trolley? Bearing in mind that the trolley represents what is bad, it should not be distributed in fact. As I said in the third paragraph, it is inevitable that the girl or the five men on the track die. Thus it would seem fitting that the trolley be distributed to one individual, that being the girl, all other things being equal of course. But all things are not equal here, for the girl is innocent and the five men are prisoners. Thus the girl has a claim not to have the trolley distributed to her. The driver will still kill the five men, even if he chooses to do nothing, because he is the driver of the trolley, regardless of the fact that the brakes have failed 27. Finnis would say the driver should not do anything and ought to allow the trolley to kill the five men because they do not uphold the central case of law, which is to obey the law, which in turn advances the common good of all as its moral content is realised 28. Hart on the other hand would say that if the society that the five fat men lived in had the rule of recognition that is based on morality, then those who have internalized the law would criticize the prisoners deviation from obeying the 24 Op cit note 11 at 207. 25 Op cit note 1 at 42. 26 Op cit note 15. 27 Op cit note 24. 28 Op cit note 1 at 42. 3
law 29. Despite the fact that there are two stringent negative duties not to kill the five prisoners or the girl, this negative duty not to kill the five men is terminated and it would seem justifiable that they should be killed since they do not contribute to the common good, nor do they obey the law (according to Hart). Therefore, I am of the opinion that the driver should not do anything, but ought to allow the tram to kill the five fat male prisoners. Therefore to conclude, according to Mrs Foot, the driver is burdened with two negative duties. He should refrain from killing the five than the one, but the one has a claim since this will advance the common good 30 and I should think that this is a more stringent negative duty being compared to killing one. 29 Op cit note 11. 30 Op cit note 11 at 206. 4
Bibliography Journal Articles John M. Taurek Should Numbers Count? (1977) 6 Wiley 293-316. Judith Jarvith Thomson Killing, Letting Die and the Trolley Problem (1976) 59 Oxford University Press 204-217. Judith Jarvith Thomson The Trolley Problem (1985) 94 The Yale Law Journal 1395-1415. N.E. Simmonds Law as a Moral Idea (2005) 55 University of Toronto Press 61-92. Books Denise Meyerson Jurisprudence (2014). 5