'Necessity knows no law': On extreme cases and uncodifiable necessities

Alon Harel*, Assaf Sharon

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

Abstract

This article analyses the category of extreme cases - cases involving catastrophic consequences the avoiding of which requires severe measures (e.g. torture, shooting a plane in 9/11 situations, etc). We first reject two traditional solutions to extreme cases: deontology/threshold deontology (as traditionally understood) and consequentialist solutions. Our proposal maintains that what is most pernicious is not the violation of moral rules as such but their principled or rule-governed violation. Maintaining a normative distinction between acts performed under the direction of principles/rules, on the one hand, and unprincipled, context-generated acts, acts performed under the force of circumstances, on the other, allows for accommodating the necessity of infringements in extreme cases within a (non-conventional) deontological framework. Agents who perform acts under extreme cases ought not to be guided by rules or principles. Instead, they ought to make particular judgments not governed by rules. We also establish that this solution follows from the Kantian conception of human dignity.

Original languageEnglish
Pages (from-to)845-865
Number of pages21
JournalUniversity of Toronto Law Journal
Volume61
Issue number4
DOIs
StatePublished - 1 Jan 2011

Keywords

  • Kant
  • consequentialism
  • deontology
  • dignity
  • emergencies
  • extreme cases
  • principles
  • rules

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