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University of Bern

Autumn Semester 2014


MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

Necessity Knows No Law

TABLE OF CONTENTS
1. Introduction

2. Deontology: Categorical and Absolute


Impermissibility
- The Ethics of Deontology and How Does It Apply

3. Necessity Knows No Law


- When The Law Is Not To Be Observed

4. By Force of circumstances
- Exceptional Events and Secondary Decisions

5.

Who Ought To Down A Plane?

- The Agents Type of Reasoning When in an Extreme Case

6. More on the Distinctness of the Exceptional


-Conclusion

1. Introduction
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University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

In his book, Why Law Matters, Alon Harel approaches contemporary political
issues and legal theories in order to

present the argument that legal institutions and legal

procedures are valuable and matter as such, irrespective of their instrumental value. He first
examines the value of rights, then he argues that the value of public institutions are not grounded
just in the contingent fact that such institutions are particularly accountable to the public, thirdly
he shows that constitutional directives are not mere contingent instruments to promote justice.
And finally, Harel defends judicial review on the grounds that it is an embodiment of the right to
a hearing.
In the chapter Necessity Knows No Law, Alon Harel together with Assaf Sharon analyze
the category of extreme case. What is the definition of extreme cases? How are they to be
handled? And who is in the position of handling them?
From the beginning they aim to establish that while some valuable decisions are made by
the state, other decisions must be made by individuals. They argue that an extreme case is a
particular, uncommon case in which the decisions have to be performed strictly as acts of
necessity thus implying that the ones who perform them must be open minded and make
judgements that are not in connection to any rules or norms, that are rule free and do not rely on
standards. Therefore the decisions that are being taken in such a case cannot be made by public
officials for the reason that they operate on the basis of rules, principals and precedents.
When an extreme case involves human lives, rules and principles cannot be a factor of
judgement because this would mean that human lives are commensurable. Thinking of the
definition of the word, which is measurable by a common standard, this means that one life may
be sacrificed if other lives can be protected. But in the Kantian terminology life has value but no
price thus making it impossible to apply the rule commensurability. As explained by Kant, dignity
permits one life to be sacrificed for the sake of others as long as it is perceived to be exceptional
and unprincipled and does not imply that that specific life is less important that the others.
However in an official acting in the name of the state, a comparison of human lives would take
place due to the training of always acting on the basis of precedents.
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University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

In the chapter Necessity Knows No Law it is examined a case in which the German
Constitutional Court declared a provision authorizing the downing of a plane unconstitutional
even if that plane would be used as a weapon, on the grounds that it violates the constitutional
right to life. From here a dispute was born: killing the innocent civilians that would be on that
plane or protecting the lives of the others that would be affected by the plane most likely many
more in number.
This dispute is treated in relation to what Harel and Sharon call extreme cases which are
characterized

by

radically

irregular

circumstances,

typically

involving

catastrophic

consequences1 and in order to be avoided severe measures are required. But if severe measures
are needed, a dilemma inevitably arises with respect to deontological sentiments and the
consequensalist perspective.
It is essential that we understand the terms deontology (deontological sentiments) and the
consequensalist perspective.
Deontology is a branch of ethics dealing with duty, moral obligation and moral
commitment and the deontological sentiments have the meanings that we are not supposed to kill
innocent people even if this would lead to saving (more) lives. This lays in the sacredness of life
(lifes intrinsic value) which is brought up to justify the fact that one persons life should not be
sacrificed even if in this way more lives would be saved; even if in this way a so called grater
good would be achieved.
We speak about a consequensalist perspective when there is a big threat that could lead to
catastrophic consequences and in order to avoid it, lives, even though innocent, may have to be
sacrificed and thus violating certain rights.
The same dilemma is presented in the case brought up to the German court. However
there are three positions regarding this extreme case. On one extreme there is the consequensalist
perspective which claims that consequences are to determine what ought to be done, on the other
1 Harel, Alon; Why Law Matters, Oxford University Press: 2014, New York, p. 109.
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University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

extreme we have the absolutist deontological one which is against killing the innocent or
violating rights no matter the consequences and the third one is an intermediate one so called the
threshold deontological perspective. Keeping in mind that a threshold is the point or the level that
must be exceeded in order for an effect to be produced or manifested, the threshold deontology
claims that in an extreme case the deontological constraints should apply as long as the awfulness
of the consequences remain under a certain threshold, but as soon as the threshold is reached, the
consequensalist considerations should apply. In other words if the consequences do not reach a
certain level of dreadfulness, the reaction or the result are not yet manifested and the
deontological perspective is to be put into practice, but if that threshold is topped and the
phenomenon are being manifested as a result, the consequensalist conditions are to be put into
action.

2. Deontology: Categorical and Absolute Impermissibility

- The Ethics of Deontology and How Does It Apply

After presenting the possibilities that could be applied for this case, Harel and Sharon
argue that none of these perspectives is satisfactory. In this case shooting down a civilian plane,
even though it might crash in an urban center, is denied due to the deontological prohibition on
killing the innocent that can be found in the German Constitutional Court.
Such a treatment ignores the status of the persons affected as subjects endowed with
dignity and inalienable rights. By their killing being used as a means to save others, they are
treated like objects and at the same time deprived of their rights; with their lives being disposed
of unilaterally by the state, the persons on the board of the aircraft, who, as victims, are

University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

themselves in need of protection, are denied the value which is due to a human being for his or
her own sake. (Harel: 111)
Later in this discussion, the principle of secondary permissibility comes up. That is that
for some deontologists it permissible to kill people for the sake of saving others if these people
are destined to die anyhow.
However if one does not want this principle to be applied and the plane to be shot down,
they can modify the case in order to suggest that the people on that plane would not die unless
they shoot down the plane and as a result, the deontologists would deny the downing of the plane.
So even if the plane is a threat to many innocent lives some deontologists would still deny the
right of shooting down the plane but there are others who would sometimes give permission to an
action of that sort. This strategy, adopted by these deontologists is called threshold deontology. In
this case, some peoples rights, such as the right to human life, may be violated if the duty of
protecting potential victims of a terrorist attack comes into the picture.
The issue with threshold deontology is that it is not faithful to the Kantian deontology; its
basic challenge being that one person is not to be sacrificed for the sake of one, two or a hundred
people, because it violates the persons dignity, but he or she can be sacrificed for the sake of one
thousand or a million people. In other words once the threshold is reached it doesnt violate their
dignity anymore.
It is in discordance with the Kantian deontology giving the fact that Kant said that dignity
admits no equivalent; which would mean that sacrificing one life for the sake of two, ten or one
hundred people would be the same as sacrificing one life for the sake of a million.
It is the very sacrificing of one life in exchange for other lives (and not the number of
lives sacrificed) that compromises dignity. (Harel: 114)
The threshold deontologist has two principles: one is a dignity based principle that forbids
killing the innocent people and the second one that mandates saving innocent people. The second
principle may sometimes override the first one thus principle one is outweighed by principle two
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University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

which is not even a dignity-based principle. Thus even though threshold deontology may trigger
decision that seem reasonable, it is difficult to be justified giving the fact that, from a Kantian
framework dignity must not be overridden by any other principles.
Furthermore the threshold deontologists cannot provide a rule determining when a
threshold is being crossed and moreover there is not a list of criteria for making that
determination. Threshold deontology is in conflict with the value of dignity as understood by
Kant.
Hence a challenge takes place: to come up with an account that justifies the use of force in
cases of emergency and at the same time be respectful to the fact that dignity admits no
equivalent, as Kant argues.

3. Necessity Knows No Law

- When The Law Is Not To Be Observed

Later on in the chapter Harel and Sharon come up with a new position in order to
reconcile the conflicting sentiments. This proposal is based on the idea that what is most fatal for
deontology is not the violation of moral rules but the fact that this violation of the rules is
principled or rule-governed. There is a distinction that has to be made between acts performed
under rules and principles and acts not performed under rules and principles but which are
context generated. In other words acts that are performed under the force of circumstances. Being
aware of this distinction, it follows that certain violations are allowed in an extreme case within a
deontological framework.

University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

However these actions must be performed only of acts of necessity and by agents who are
not guided by rules and/ or principles but by agents who can make particular judgments that are
not guided by norms.
In Sumana Theologiae Aquinas argues that in a case of emergency the law would be
hurtful to the general welfare and that it should not be observed. Legislation of extreme cases
should not be incorporated into ones reasoning because it is different from the general law which
guides peoples behavior.
When it comes to extreme cases the individual must act and reason differently from a nonextreme case: the agent must prevent a calamity regardless of legal direction and authorization.
But when there is no threat of a calamity, the agent must not take action no matter of the
legislation or other forms of authorization.
The codification of extreme cases should be prohibited so that the extreme cases will not
be normalized by being put on the same level with other legal directives and thus not being
exceptional anymore. For example, we put the prohibition of killing the innocents on the same
par with the permission of killing the innocents, knowing that they are separated only by
variations of circumstance; but only the first one is an acceptable principle while the other one is
wrong. Thus we cannot accept them as norms. If we do, we will put them on the level; that is the
forbidding mistreatment of individuals with the allowing mistreatment of individuals, which will
lead to the fact that the agent will always have to consider whether the circumstance specified in
the law justify the killing.
Constant argues that duties are secondary to rights, thus there is no duty of truthfulness to
someone who builds up their right by threatening to harm another. Kant however disapproves
because in his view moral duties are unconditional. Duties come before rights because only in
this way they can count as unconditional; as they ought to be if they constitute moral duties at all.
From this arises another question. What makes a duty conditional? Harol and Sharon
argue that there are two types of duties: the absolute duty and the unconditional duty. An absolute
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University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

duty is the one to which there can be no exception and an unconditional duty is the one that is not
conditioned by anything subjected to chance such as the agents desires.
When we talk about moral principles we adopt the idea that duties are unconditional,
which means that when it comes to lies, the only principle is that they are forbidden and this rule
cannot be replaced or modified. As a result, in this situation the focus of the discussion is the
agents reasoning. If the agent sees lying as an exception to the rule of truthfulness and therefore
making the rule of truthfulness conditional, than the agent considers the possibility that lying is
permitted under our norms. However the current proposal dictates not only not to lie but also not
to consider that lying is permitted under our norms.
If we incorporate rule-governed exceptions into deontological rules we undermine the
unconditional status of the deontological rules unconditional status. Consequently we should not
incorporate exceptions to unconditional duties. But should we never violate such duties either?

4. By Force of circumstances

- Exceptional Events and Secondary Decisions

Harol and Sharon apply this framework to the case of rogue planes and also show that the
Kantian conception of human dignity is the basis for the distinctive modes of reasoning when it
comes to these exceptional cases for in the Kantian tradition human lives have value and not a
price thus the commensurability of life is not possible and so one cannot rely on rule-based
reasoning.
In extreme cases one should act according to the necessity and not according to the law;
there is the common and definite conviction that following the law is not enough. From this
statement arises on question: How to deal with extreme cases?
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University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

One option would be to revise the law but if the deontological rules are unconditional as
Kant sustains this cannot be the valid answer. The other option would be to think in terms of rules
and exceptions. If there is an exception to the rule, then the rule does not apply and thus we need
another rule or a modified one which does apply.
There is a claim that one must take into consideration: from the deontological point of
view there is a difference between performing an impermissible act and perform an impermissible
act under a rule or a principle which permits such an act. Keeping this in mind we realize that it
becomes possible to considerate a conception of action in extreme cases which will be respectful
to both deontological tenets and attentive to the gravity of the consequences.
For a better understanding of this option we must analyze the agents reasoning. One first
reasoning can be based on a normative premise, which means that if a plane threatens many lives,
he ought to shoot it down. This type of reasoning involves a principle that, in cases in which the
number of the saved ones is bigger than the ones killed in order to save the first, shooting at
civilians is permitted. The second kind of reasoning starts from the premises that saving innocent
lives is their duty. Therefore if the agent recognizes that the only way of doing this is by downing
a plane they will do so. This type of reasoning does not involve the principle that permits harming
innocent civilians.
The agents reasoning is the great moral significance within this deontological concept.
For it is not the same to harm innocent people because there is a permissible act to do so, and
harming innocent people because it is an exception and an unavoidable measure in order to save
lives. Kant expresses his opinion about this analysis saying that everything has either price or
dignity. What has a price can be replaced by something else as its equivalent; what on the other
hand is raised above all price and therefore admits of no equivalent has a dignity. (Harel: 123)
But even though dignity is incommensurable does not mean that it is inviolable. What Kant is
arguing is that dignity should not be considered as a currency to be traded.

University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

It is never justified to harm innocents but it could be an unavoidable consequence of a


necessary action. However if an agent is called upon to shoot down a plane it is for them to
decide if they are dealing with an exceptional case and as a result they have to construct a rule in
order to identify the exceptional circumstances. But as I mentioned before in this essay, it is
impermissible to construct such a rule and act on its basis.
What Harol and Sharon argue is that the agents must not identify exceptional cases based
on rules because there are no rules to specify what counts as an exception and because they
should reason on the basis of particular judgment and not rule-liked generalization. Keeping this
in mind, if the decision of downing a plane is not governed by rules the action of that agent does
not count as precedents or as guidance for future decisions and thus every case is considered to be
a singular one, anew.
With respect to the case presented, an agent may only down a passenger plane when the
circumstances make it absolutely necessary and not when it is a decision of a superior hierarchy
of the state or when it is based on a precedent or a dictating law. In the latter case it is no longer
performed strictly on the basis of necessity of the moment; it becomes part of regular institutional
practice. ( Harel: 125)
Accordingly, as long as the shooting down of the plane is dictated by the force of
circumstance and not governed by a rule, the passengers dignity is not is respected; giving the
fact that the act itself is not according to a principle to which the lives of the passengers are
dispensable or exchangeable.

5. Who Ought To Down A Plane?

- The Agents Type of Reasoning When In An Extreme Case

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University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

Because the act of the state is practice-based, the public officials cannot reason in extreme
cases, thus the act must be performed by a private individual and never by the state.
However in times of necessity anyone who can should prevent a catastrophe as long as it
is regardless of legal direction or authorization. Which means that even a public official, such as
a soldier, can perform the shooting as long as his decision is not based on principles, rules and/or
precedents. In this case his act must be counted as a private one and it is not considered as an act
in the name of the state; the decision can be their very one and in this case there is another type of
reasoning, one fit for an extreme case.
If there is not a threat of catastrophic consequences or they can fairly be avoided, the
agent must refrain from the action no matter of the orders received.

6. More on the Distinctness of the Exceptional

- Conclusion

As argued, extreme cases are part of a distinctive normative category. Because they are so
specific and unique, due to their exceptionality an appropriate form of reasoning will turn up.
Sometimes our norms must be violated in order to efficiently deal with extreme cases: extreme
cases require extreme measures (Harel: 129). For example, the act of torture (which is strictly
forbidden) may be needed in such cases so a catastrophe may be avoided. However it will only
be allowed in a strict case of necessity and not by a law that allows torture in some specific
conditions. Even when it is performed it must be executed as an act of self-preservation and not
as an act of state policy.

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University of Bern
Autumn Semester 2014
MA Seminar: Why Law Matters
Alexandra Elena Anton
Prof. Dr. Markus Stepanians
12-123-063

As a completion of everything discussed above, when talking about extreme cases we


must find the resolution in deontology as characterized by the unconditional nature of moral rules
and not by the special or absolute strength of the rules.

Bibliography

Harel, Alon; Why Law Matters, Oxford University Press: 2014, New York

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