TY - JOUR
T1 - 'Necessity knows no law'
T2 - On extreme cases and uncodifiable necessities
AU - Harel, Alon
AU - Sharon, Assaf
PY - 2011/1/1
Y1 - 2011/1/1
N2 - 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.
AB - 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.
KW - Kant
KW - consequentialism
KW - deontology
KW - dignity
KW - emergencies
KW - extreme cases
KW - principles
KW - rules
UR - http://www.scopus.com/inward/record.url?scp=84255189469&partnerID=8YFLogxK
U2 - 10.3138/utlj.61.4.845
DO - 10.3138/utlj.61.4.845
M3 - ???researchoutput.researchoutputtypes.contributiontojournal.systematicreview???
AN - SCOPUS:84255189469
SN - 0042-0220
VL - 61
SP - 845
EP - 865
JO - University of Toronto Law Journal
JF - University of Toronto Law Journal
IS - 4
ER -