The Conundrum of doing the right thing and its legality

By Siddharth Narula 

April 20, 2022

Abstract

With morality at the crux of its arguments this article highlights the issue that is the ethical conundrum faced while making a choice, to do either the right thing, but go against the law, or the legally correct thing and ignore ones beliefs. Using the hypothetical scenario, the ‘trolley problem’, this article attempts at deciphering the correct course of action, while evaluating the difference between past and present opinions in the form of both, laws and ones understanding of what is correct.

Introduction

Most  people reading this would probably know of, or have at least heard of the ‘Trolley problem’. For those who are unaware, the problem describes a fictional scenario wherein ‘You’ an ‘onlooker’ sees five people tied to one side of a tram track and one person tied to the other side.  Near you is a switch that changes the direction of the main track and approaching from a distance is a tram travelling on those very tracks, heading towards the group of five. The onlooker is left with a decision to make – whether to save the lives of five people by sacrificing the single person tied to the other side, or to let those five die and spare the one.

Majority would conform to the theory of utilitarianism, ie. anything is right if done for the greater good and choose to save the five. Ironically though, if one was to judge this from a legal perspective, the person would be held accountable for manslaughter (culpable homicide) if he were to sacrifice the single individual to save the other five. Despite taking into account the theory, since the person proactively made a choice of killing the one, even if it was to save the others, it would be considered illegal. Under the common law of most English speaking countries such as the U.K and the US, there exists a rule of ‘no duty to rescue’, where a person is not compelled to help anyone in need and is not held liable as such if they fail to provide it. 

However, the way this concept is construed varies across countries. It is a legal requirement in some countries to provide assistance unless doing so would prove detrimental to oneself or others. Providing basic aid such as alerting the authorities in cases such as a car crash or a person collapsing due to health issues, is compulsory. For example, under the Danish penal code, ‘all persons are required to provide aid to any person who appears to be lifeless or in mortal danger’ provided, that in acting they would not endanger themselves. Similarly, in France, anyone who fails to render assistance will be found liable before French courts. 

Therefore, it is not as though legal systems around the world entirely abandon the concept of morality yet, it must be observed that in none of these examples is the safety of the one assisting or a third party is being jeopardised. And so, when it comes down to the matter of survival between two different parties, no explicit rules have been laid down concerning the required course of action. Even if one side has a larger number of people being put at risk, as law dictates that all subjects before it be treated equally, giving greater weightage to the larger group would tantamount to quantifying the worth of people and so in such scenarios, the legally correct thing would be to not intervene.

With the problem from before, if the same scenario would be implemented with a few changes such as replacing the one person with the onlooker’s family member or close relative or even a person of higher stature than the other five, the answers would vastly differ. Though this is not an effective test to determine one’s morality, it does allow us a peek into the inner workings of the mind and understand how people arrange the importance of others such that it does not come into conflict with their ethics.

This, then begs the question— what is the right thing to do? We are only able to exist today as a result of thousands of years of evolution, evolving not only physically but mentally as well, allowing us to think diagonally. The least we can expect is for there to be a clear distinction between what is good and what is bad. It seems that despite the purpose for which law exists— to provide justice, there is still moral uncertainty with regard to the right course of action for such matters. Does law even take morality into account? Well, if it doesn’t, should one discard their morality to be legally correct? After all, the majority would think twice about doing something if they become aware of its illegality, especially in today’s world which pushes people toward a perfect public persona. Where even a single misstep would cause the people to look askance upon them; as a result people have started to tread carefully. They have developed a more self-centered attitude abandoning their already diminishing morality.

Attempting to answer the unanswerable

What is the right thing to do? — this is a tough question. The definition of ‘right’ is far too vague. To even attempt to answer that would require a person to venture deep into the realm of philosophy and the inner workings of the human mind. This subject is something which even great philosophers such as Plato, Aristotle, Socrates and the like have barely scratched the surface of. So, what we can do is merely guess and theorise. 

Based off of what can be gathered by observing one’s surroundings, one may notice that the definition of ‘right’ varies from individual to individual. To some, doing the right thing may mean making the other suffer ten times more than the suffering that was caused to them, while to others It may mean the exact opposite. They strive to forgive and forget.  

Similarly, in a situation where one has to choose between the survival of two groups, the answer may vary. The opinion on this generally remains divided (albeit unequally), however, if one wants a straightforward answer then doing the correct thing would be to keep losses to a minimum. This is where law is introduced, but it is also where it falls short.

Law acts as a deterrent to conflict arising out of a divided opinion. By codifying opinion in the form of rules, law imposes something common on all. The end result— harmony despite divided opinions. A simple analogy to understand this is imagining law as the ‘good guy’ being forced to play the ‘bad guy’ for the greater good. Laws discourage violence between two groups of thought while setting a common rule for all to follow. Two prominent examples can be laws regarding the freedom of speech and taxation. 

Both of the aforementioned laws embody the principle – “For The Greater Good”.

Freedom of speech is a double-edged sword— While laws do allow a person freedom of speech in all forms (oral and in print), it maintains a certain bottom line in this regard. 

Article 19(2) imposes certain (reasonable) restrictions on this right which prevents its interference with the state procedures regarding law making, the security of the state, relations with foreign states, public order, or incitement to an offence. 

Similarly, taxation, more particularly, the progressive taxation system also falls within the same category. Tax is a universal concept and is imposed on all. However, the way it is imposed differs according to the economic status of those taxed. The wealthy are taxed more while the poor are taxed less. 

At a glance it may seem unfair, discriminatory even, to tax the former more. However, this discrimination helps maintain a balance in society. The idea being to patch up the ever widening gap between the rich and the poor.

On the other hand, the rigidity of law can be one of its biggest flaws. Law tries to maintain harmony and functions such that losses occurred are minimal. However, the cost of maintaining this harmony is what some believe to be a clear disregard for morality. To achieve its purpose, law needs to maintain a certain level of neutrality in order to avoid being perceived as partial. 

This neutrality can often be construed as a total disregard towards human emotions;  emotions being one of the main driving forces behind an individual’s actions. The rationale is to maintain order and minimise the intervention of any third party, but by doing so, it deprives both the victim as well as any third party the chance to receive and/or give any assistance without fear of possible repercussions.

It can be argued that nothing exists without flaws and it is something that is bound to happen, however, this is precisely the reason why simply abiding by the law is not enough. Citizens need to actively participate in the lawmaking process. To be dissatisfied with any law on account of it being outdated or violative of a citizen’s rights is natural, but mere criticism is not enough. The Constitution of our country assures our rights however, it is entirely dependent upon us to assert them and prevent their violation. 

The thought behind the action

Even though an action might not be legally correct, to some not doing it might tantamount to abandoning their moral principles. They, thus abide by the ideology of ‘doing the right thing’, and would much rather be punished for doing something illegal, rather than be simply reticent. 

As such, it does make one wonder what defences would be available to such an individual. After all, their action was out of honest intentions and if not for the situation before them they would not have had to make such a choice. Having been reduced to making a choice between two evils, one would choose to do what they abhor less, although their feelings towards it may be as extreme as if it were the worse between the two. 

Setting aside the fact that an occurrence similar to the trolley problem is nearly impossible, judging it according to the standards mentioned before, the person who acted (regardless of the outcome) will be held liable for his actions. According to the procedure established by law, this person will promptly be produced before the court and will await trial. The only route to absolve him of his crime or at least reduce his sentence is for him to employ necessity as a defence. Section 81 of the IPC states that an act which is likely to cause harm, but done without criminal intent and to prevent  harm to another is not an offence.  Thus, in accordance with the above, the individual can plead not guilty and based on what the law states, it is most likely that the person will be absolved of his crime. However, as there is no concrete evidence on the outcome of such a trial, one must look to other similar instances. Cases with a common nexus, though they may have facts as different as day and night, share a common rationale. 

This can be observed in the earliest recorded case of  Regina v. Dudley and Stephens wherein necessity was used as a defence. 

The trial of Regina v. Dudley and Stephens, or more famously known as the ‘Mignonette’ trial is one which involves the same principle of necessity with not much difference from the trolley problem. The trial follows the aftermath of four shipwreck stranded individuals who, in order to sustain themselves resorted to cannibalism by killing one of their party members.

This case formed two principles that make necessity inapplicable as a defence for murder. The main principle which formed the cornerstone for the same was the presence of an urgent and immediate threat to life, only following which it could be considered appropriate to carry out an action which might break the law. The second is medical necessity. Similar to the above, any activity may be justified as appropriate or legal if it conforms to the clinical standards of care, provided, that it is proven. The court in this trial found the accused guilty of murder and ruled that cannibalising the person was not urgent. Though there was a threat of starvation, at any moment a ship could have sailed over the horizon to save them, as that was indeed the case. They were originally sentenced to death which was later reduced to just six months in prison. Though the decision in this case is a highly debated one; to decide whether or not it was appropriate, one must examine all factors before forming an opinion.

From a legal standpoint, the decision to punish the group, was the correct one. The rationale of the court, though not entirely convincing did raise some important issues. If the three were to be exempted from punishment merely because their actions were necessary to avoid starvation, it would lead to anarchy and disorder. If people were allowed to feign innocence simply because of the rule that any actions are acceptable as long as one feels that without it they would suffer, it would allow anyone to escape punishment and disregard the severity of their crime. According to this reasoning a poor person could steal without any consequences, simply because they felt they would suffer from malnutrition.

From a moral standpoint however, this decision was incorrect. In order to pass a just ruling, courts must approach the case from a psychological perspective as well. To be fair in their judgment, one must imagine themselves in the other’s place and understand the situation from their viewpoint. Though the three were fortunate enough to survive a shipwreck, what lay before them was only uncertainty. This uncertainty transformed into a fear of death which was constantly looming over their heads. Desperation was only a matter of time. 

This desperation to survive is enough for anyone to take impulsive decisions and the decision to kill the fourth member was a result of this impulse to survive. One could argue that they did what they believed was necessary to survive, after all they were not aware when or if they were going to be rescued. 

What makes us human?

Many have pondered over this question and have arrived at various conclusions. Some believe that it is our intellect which is the reason humanity was able to flourish. The ability to communicate by creating languages and thus, being able to express our needs allowing us to evolve, much like an infant that uses crying to signal that it is hungry. 

Some believe it is the ability to work. Work being the activity around which our life revolves, something which gives us a purpose, without which living would be meaningless. And so, while there are all sorts of conclusions that have been drawn over the decades, there is something that differentiates us from other sentient beings such as apes. It is something incredibly complex, yet, it is something that can be understood even by children.

That is— our morality

As opposed to animals, humans are driven not just by their instincts. All humans are imbued with the gift known as ‘conscience’, allowing them to think for themselves. The small voice at the back of our heads that berates us when we cheat our diet is what separates us from other living organisms. So, if this amazing ability is the reason why we are able to maintain our humanity, is it really worth giving up just to be legally correct? 

This question can actually be answered from both points of view. 

Law is something that is created by the people and for the people, as such it is not without reason that a particular law exists. The only purpose for its existence is the protection of the rights of the people. It is implemented solely for our benefit. When  persons are due reparation for the crimes  committed by them, it is the law which acts as an instrument for the aggrieved, allowing them to seek justice. The opinion that laws are exaggerated and often unnecessary is biased. From the point of view of a recalcitrant person, such a statement would be rather appealing. However, laws are a direct reflection of the society and by not acting in accordance there with, we do not hold true to the ideals created by us. 

That being said, it is not as though all laws are perfect creations. What is created by the majority may not always be correct. Especially, with the passage of time as a society evolves it becomes more accustomed to accept change. Laws too as a result, need to be amended. 

Section 24 of the Hindu Succession Act 2005, where originally the female heir of a coparcener was not entitled to the property in the same manner as the male coparcener; Section 377 of the IPC originally criminalised sexual acts between people of the same gender; are examples of evolution of laws as both of these were eventually amended to meet the changing societal norms. 

Therefore, for laws to remain relevant, the process of law making has to be  a dynamic one. The principle of dynamism is even reflected in the Constitution. The framers of the Constitution recognized that for drawing up a document that can withstand the changes brought by time,  making provisions for constitutional  amendments would be desirable even though the same may be made only when absolutely necessary.

Thus, laws that are dynamic as opposed to the those that remain static are able to serve the society well. In this world of ours, where most of the people have been infected by the “fast lane” mentality, if one is not able to keep up they most definitely are left behind, with no one bothering to spare even a single look.  In the absence of the ability to amend them, laws risk becoming obsolete and so to avoid such an outcome the need of review by the legislature every decade is of utmost importance.  

To conclude…

An effective way for one to improve is to learn from  past mistakes and keep evolving. Mistakes, often considered signs of incapability are in actuality, a chance for anyone or anything to bolster their capabilities. As such, it is an especially important tool to assess the interactions between people and the laws that govern them. Our current knowledge is the culmination of centuries worth of trials and errors  which have led us to instill in ourselves value for life. 

Thus, the moral of the story can be explained in the simplest way possible as, the need to value  life in all its forms, more particularly human life. For, it is something that has no equal in worth and must be protected at all costs.

Disclaimer: The views or opinions expressed are solely of the author.