1his paper can be downloaded without charge írom LSL Law.

Societv and Lconomv \orking
Papers at: www.lse.ac.uk´collections´law´wps´wps.htm and the Social Sciences Research
Network electronic librarv at: http:´´ssrn.com´abstract~16203¯¯.
© Kai Moller.

Users mav download and´or print one copv to íacilitate their pri·ate studv or
íor non-commercial research. Users mav not engage in íurther distribution oí this material or
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1he Right to Liíe Between Absolute and
Proportional Protection



Kai Moller



LSL Law. Societv and Lconomv \orking Papers 13´2010
London School oí Lconomics and Political Science
Law Department




1his paper can be downloaded without charge írom LSL Law. Societv and Lconomv \orking
Papers at: www.lse.ac.uk´collections´law´wps´wps.htm and the Social Sciences Research
Network electronic librarv at: http:´´ssrn.com´abstract~|number|.


1he Right to Liíe Between Absolute and Proportional
Protection




Kai Moller







Abstract: One oí the puzzles oí human and constitutional rights law is whether there are anv
rights which are absolute. 1he question is important not onlv íor practical purposes but also
íor the theorv oí human and constitutional rights: an absolute right presents a departure írom
what is now the deíault` in constitutional and human rights law around the world. namelv the
proportionalitv approach according to which an interíerence with a right is justiíied ií it ser·es
a legitimate goal and is proportionate to that goal. 1his paper tries to shed some light on the
issue bv íocussing on the right to liíe. It proceeds bv íirst presenting an account oí the leading
case in this area. namelv the judgment oí the German lederal (onstitutional (ourt in the
A·iation Securitv Act case. where the (ourt held that shooting down an airplane which was
likelv to be used as a terrorist weapon was a ·iolation oí the right to liíe in conjunction with
the human dignitv oí the innocent passengers aboard. It then oííers a íew thoughts on the
(ourt`s reasoning. speciíicallv with regard to what it has to sav about the idea oí absolute
rights. la·ing concluded that the judgment oííers little help in illuminating this problem. it
presents some approaches to absolute rights írom moral philosophv and applies them to
human and constitutional rights law. 1he conclusion is that the right to liíe will under certain
circumstances be absolute or near-absolute. but that these circumstances occur less írequentlv
than is sometimes assumed.






Lecturer in luman Rights Law. Law Department. London School oí Lconomics and Political Science.
Lmail: k.moller(lse.ac.uk. Larlier ·ersions oí this paper were presented at a workshop on Shooting to
Kill` in Onati. Spain. in the summer oí 2009 and at the LSL staíí research seminar in earlv 2010. I would
like to thank all participants íor their ·aluable íeedback.

13´2010


2
IN1RODUC1ION

One oí the puzzles oí human and constitutional rights law is whether there are anv
rights which are absolute. ie rights which must ne·er be interíered with. Some oí
the candidates which come to mind are the right not to be tortured
1
and the right
to liíe. 1he question oí absolute rights touches upon issues which ha·e become
practicallv highlv rele·ant especiallv since the terrorist attacks oí 11 September
2001 and the subsequent changes in the attitudes oí some states towards torture
and killings. and this alone would merit a close analvsis. But íurthermore. the issue
is important íor the theorv oí human and constitutional rights. lew ideas ha·e
spread as quicklv and per·aded an entire area oí law as thoroughlv as the
proportionalitv approach in constitutional rights law around the world. Robert
Alexv`s model oí rights as principles which ha·e to be balanced against conílicting
principles is one oí the most iníluential theoretical accounts oí this de·elopment.
2

\hile I am critical oí some aspects oí Alexv`s model.
3
I do accept and subscribe to
the desirabilitv oí balancing in constitutional rights law. But this does oí course
not implv that att constitutional rights are open to balancing in att situations:
rather. it mav turn out that some are and some are not. or some are in most but
not all situations. But then we need a theorv which distinguishes absolute írom
non-absolute rights.
1his paper will trv to shed some light on this question bv íocussing on the
right to liíe. It will proceed bv íirst presenting an account oí the leading case in
this area. namelv the judgment oí the German lederal (onstitutional (ourt l((,
in the A·iation Securitv Act case. where the (ourt held that shooting down an
airplane which was likelv to be used as a terrorist weapon was a ·iolation oí the
right to liíe in conjunction with the human dignitv oí the innocent passengers
aboard. I will then oííer a íew thoughts on the (ourt`s reasoning. speciíicallv with
regard to what it has to sav about the idea oí absolute rights. la·ing concluded
that the judgment oííers little help in illuminating this problem. I will present
some approaches to absolute rights írom moral philosophv and applv them to
human and constitutional rights law. Mv conclusion will be that the right to liíe
will under certain circumstances be absolute or near-absolute. but that these
circumstances will be rarer than sometimes thought.






1
cí Article 3 oí the Luropean (on·ention on luman Rights.
2
R. Alexv. . )beory ot Cov.titvtiovat Rigbt. Julian Ri·ers. trans. Oxíord: OUP. 2002,.
3
See mv Balancing and the Structure oí (onstitutional Rights` 200¯, 5 ívtervatiovat ¡ovrvat ot Cov.titvtiovat
íar 453.


Kai Moller )be Rigbt to íite ßetreev .b.otvte ava Proportiovat Protectiov

3
I.

One oí the German laws passed as a response to the attacks oí 11 September 2001
is the A·iation Securitv Act Luítsicherheitsgesetz,. Its most contro·ersial part was
¸143, which ga·e the Minister oí Deíence permission to order the shooting down
oí passenger planes ií according to the circumstances it had to be assumed that the
aircraít was to be used against the li·es oí people and ií the shooting down was
the onlv eííecti·e deíence against the threat. 1his part oí the statute was declared
·oid bv the l(( in 2005.
4
1o understand the decision. some doctrinal background
regarding German constitutional jurisprudence is helpíul. lirst. according to the
wording oí the Basic Law. the right to liíe is not guaranteed absolutelv. but can be
interíered with pursuant to a law.
5
1aken literallv. this would mean that as long as
there is a law authorising it. the state could kill unrestrictedlv. 1his is where the
doctrine oí proportionalitv comes in. It means that each interíerence with
constitutional rights must not onlv be prescribed bv law. but must also be
proportional. that is. it must ser·e a legitimate goal: it must be suitable to íurther
this goal: it must be necessarv in that there is no other. less restricti·e means to
reach the goal: and it must be proportionate .tricto .ev.v in that its costs must not
clearlv exceed its beneíits. Applving the proportionalitv test to the case oí a
hijacked airplane seems to indicate that the shooting down could easilv be justiíied
at least in those cases where the number oí people likelv to die in the terrorist
attack íor which the plane is being used exceeds the number oí passengers on
board.
6
But it is exactlv this conclusion that the petitioners opposed. Relving on a
well-established principle oí German criminal law according to which li·es must
ne·er be balanced. thev argued that the proportionalitv principle has no
application in the case oí the intentional killing oí innocents.
Article 11, oí the Basic Law accords a special place to human dignitv.
¯
1he
oííicial Lnglish translation
8
does not quite capture a subtle diííerence oí language
made in the original text: In German legal terminologv. there is a distinction
between in·iolable` vvrertet.ticb, and untouchable` vvavta.tbar,. the íormer
meaning that the state mav sometimes interíere with the object oí the right.
pro·ided that it comes up with a legitimate justiíication. and the latter meaning
that anv interíerence will automaticallv amount to a ·iolation oí the right. luman

4
lor an analvsis oí the case. cí K. Moller. On 1reating Persons as Lnds: 1he German A·iation Securitv
Act. luman Dignitv. and the lederal (onstitutional (ourt` 2006, 51 Pvbtic íar 45¯.
5
Article 22, oí the Basic Law: L·erv person shall ha·e the right to liíe and phvsical integritv |...| 1hese
rights mav be interíered with onlv pursuant to a law.`
6
1here is an additional problem. namelv whether those aboard the plane should count. which mav be
disputed in light oí the íact that thev are going to die in the attack anvwav.
¯
1here is an ongoing discussion in German academia whether Article 11, stipulates a right to human
dignitv or merelv dignitv as a ne·ertheless binding and justiciable, constitutional ·alue. 1he debate is oí
no practical rele·ance. howe·er. as there is a consensus to the eííect that where·er human dignitv is
·iolated. there will necessarilv also be a ·iolation oí one oí the explicit rights in the subsequent articles oí
the Basic Law.
8
Basic Law. n 5 abo·e. Article 11,: luman dignitv shall be in·iolable. 1o respect and protect it shall be
the dutv oí all state authoritv.`

13´2010


4
dignitv. as the superior ·alue` oí the Basic law. is untouchable`. and an
interíerence can thereíore ne·er be justiíied. Note the radical consequences oí this
approach: in principle. e·en when one could sa·e the li·es oí thousands bv one
·iolation oí human dignitv. it must not be carried out. lurthermore. e·en when
one could pre·ent the ·iolation oí the aigvity oí thousands bv ·iolating one
person`s dignitv. this would not be permissible.
9
1hereíore. it does not come as a
surprise that in light oí this doctrinal approach to human dignitv it seems
necessarv to interpret dignitv quite narrowlv. No general theorv oí what is and is
not part oí human dignitv has vet been successíullv put íorward. 1he most
widespread deíinition. emploved bv the l(( in manv decisions. is the one íirst
proposed bv Günter Dürig in the 1950s who. emploving the Kantian distinction
between treating persons as ends and as means to an end. argued that dignitv
required treating persons as subjects rather than objects.
10
1he notorious diííicultv
in deíining human dignitv has not. howe·er. pre·ented the concept írom
becoming both one oí the cornerstones oí German constitutional jurisprudence
and a major export. in particular to the new South Aírican
11
and Lastern
Luropean
12
constitutions. 1he German l(( regards human dignitv as the basis oí
all constitutional rights and the central ·alue oí the Basic Law. and has reíerred to
dignitv as a principle guiding the interpretation oí other pro·isions oí the basic law
in manv contexts. íor example in its abortion decisions
13
and its pri·acv
jurisprudence
14
.
1he (ourt based its decision in the A·iation Securitv Act case on two
grounds. lirst. it argued that the law was unconstitutional because the lederation
lacked the legislati·e competence íor it.
15
1he second and more spectacular
ground concerns the ·iolation oí constitutional rights. 1he (ourt held that ¸143,
oí the A·iation Securitv Act ·iolated both human dignitv and the right to liíe in so
íar as it permitted the shooting down oí aircraíts in situations where there were
innocent persons on board.
1he (ourt begins its assessment with some general remarks on the right to
liíe and human dignitv. It stresses that the right to liíe is guaranteed onlv pursuant
to law. but mo·es on immediatelv to argue that anv law which interíeres with it
must be interpreted in light oí both the right to liíe and human dignitv: 'luman

9
1his is the traditional doctrine which is still endorsed bv the majoritv oí commentators but has been
challenged in the Jakob ·on Metzler case and the ticking bomb case to which I will brieílv reíer below. cí
\. Brugger. Mav Go·ernment L·er Use 1orture· 1wo Responses írom German Law` 2000, 48
.vericav ¡ovrvat ot Covparatire íar 661.
10
G. Dürig. Der Grundrechtssatz ·on der Menschenwürde` 1956, 81 .rcbir ae. Ottevtticbev Recbt. 11¯.
12¯.
11
s 10.
12
cí (. Dupré. ívportivg tbe íar iv Po.t·Covvvvi.t )rav.itiov.: )be ívvgariav Cov.titvtiovat Covrt ava tbe Rigbt
to ívvav Digvity Oxíord: lart. 2003, ch 3.
13
BVeríGL 39. 1. 88. 203.
14
cí \. Schmitt Glaeser. Schutz der Pri·atsphäre` in J. Isensee and P. Kirchhoí eds, íavabvcb ae.
´taat.recbt.. rot. ó leidelberg: (.l. Müller. 1989, 41. 46-4¯.
15
BVeríG. 1 B·R 35¯´05 oí 15´02´2006 at |89|-|11¯|.


Kai Moller )be Rigbt to íite ßetreev .b.otvte ava Proportiovat Protectiov

5
liíe is the ·ital basis oí human dignitv as the primarv structural principle and
superior constitutional ·alue.`
16
1his assumed close connection between the right
to liíe and human dignitv is the bridge which enables the (ourt to lea·e the right
to liíe behind and concentrate. in what íollows. on dignitv. It does not gi·e a
general deíinition oí human dignitv but stresses the necessitv to decide on a case-
bv-case basis. lowe·er. it then relies on the old doctrine oí treating persons as
subjects rather than objects. (iting its own jurisprudence. the (ourt declares:

Starting írom the ideas oí the íounders oí the Basic Law that it is a part oí
human nature to determine oneselí in íreedom and to íreelv de·elop oneselí.
and that the indi·idual can demand as a matter oí principle to be recognised
in the communitv as an equal member with his own ·alue. the dutv to respect
and protect human dignitv generallv excludes the possibilitv oí making human
beings the mere object oí the state. 1hus. anv treatment oí persons bv public
authorities which categoricallv questions their qualitv as subjects. their status
as subjects oí the law |.| is plainlv prohibited.



la·ing set out the doctrine in general. it now takes the (ourt a mere two
paragraphs to applv the íacts oí the case to the íormula:

1he passengers and crew members who are exposed to such a mission are in
a desperate situation. 1hev can no longer iníluence the circumstances oí their
li·es independentlv írom others in a selí-determined manner. 1his makes
them objects not onlv oí the perpetrators oí the crime. Also the state which
in such a situation resorts to the measure pro·ided bv ¸143, oí the A·iation
Securitv Act treats them as mere objects oí its rescue operation íor the
protection oí others |...| (rew and passengers cannot sidestep these actions oí
the state |...| but are deíencelesslv and helplesslv at the mercv oí the state with
the consequence that thev will be shot down together with the aircraít and
thereíore be killed with near certaintv. Such a treatment ignores the status oí
the persons aííected as subjects endowed with dignitv and inalienable rights.
Bv their killing being used as a means to sa·e others. thev are treated as
objects and at the same time depri·ed oí their rights: with their li·es being
disposed oí unilaterallv bv the state. the persons on board the aircraít. who. as
·ictims. are themsel·es in need oí protection. are denied the ·alue which is
due to a human being íor his or her own sake.`
18


In the íollowing section. the (ourt relies on an additional reason. It argues that it
will be practicallv impossible to judge whether the statutorv conditions íor the
shooting down ha·e been met. In light oí the íact that Germanv is a relati·elv
small countrv and that accordinglv the time window in which to make the decision

16
ibid at |119|.

ibid at |121|.
18
ibid at |123|-|124|.

13´2010


6
will be ·erv small. there was. íor the (ourt. an immense pressure to decide quicklv
and thereíore a ·erv real danger oí rash decisions.
19

1he (ourt then sets out to consider and reíute some objections to its
conclusions. It rejects as unrealistic the proposition that passengers who enter an
aircraít knowing that thev will be shot down should it be hijacked therebv
implicitlv consent to being shot down.
20
1he argument that those who are
onboard an aircraít are going to die anvwav ií the aircraít is used as a terrorist
weapon is dismissed on the ground that human liíe and dignitv must enjov the
same degree oí protection with no regard oí the probable remaining liíespan.
21

1he assumption that someone who is in an aircraít which is used as a weapon is
himselí part oí that weapon and has to accept being treated accordinglv shows
blatantlv that the ·ictims oí such an incident are no longer regarded as humans.
but as a part oí a thing. and are thereíore made objects`.
22
1he idea that an
indi·idual was under a dutv to sacriíice himselí where this is the onlv option to
pre·ent attacks on the communitv which aim at its destruction is regarded bv the
(ourt as too íar remo·ed írom the point oí the A·iation Securitv Act which was
not concerned with attacks on the state as such.
23
linallv. the argument that there
was a positi·e dutv towards those who would be the ·ictims should the terrorist
attack be carried out is reíuted with the counterargument that although such a
dutv exists. the means used to complv with the dutv must be constitutional and
not ·iolate human dignitv.
24
Lach oí these objections raises serious points and
could ha·e been the basis oí long discussions: howe·er. the (ourt does not engage
with them anv more than absolutelv necessarv and in most cases restricts itselí to
one counterargument.
In the íinal section oí the judgment. the (ourt sets out whv in those cases
where onlv the hijackers are on board the aircraít. the shooting down would be
justiíied in constitutional terms. In such cases. the (ourt does not regard the
shooting down as a ·iolation oí dignitv because the criminals are not being treated
as objects: On the contrarv. it corresponds to the position oí the aggressor as a
subject to make him accountable íor the consequences oí his autonomous
actions.`
25
1hereíore. as dignitv is not in·ol·ed. proportionalitv analvsis becomes
applicable. In a lengthv analvsis. the (ourt concludes that in those cases where
there is reason to assume that the aircraít will be used to kill people. the shooting
down would be proportionate. lor the (ourt. this íollows írom the íact that.
although the shooting down would be a serious` interíerence with the basic rights
oí the hijackers because it would almost certainlv lead to their deaths,. the

19
ibid at |125|-|129|.
20
ibid at |131|.
21
ibid at |132|.
22
ibid at |134|.
23
ibid at |135|-|136|.
24
ibid at |13¯|-|139|.
25
ibid at |141|.


Kai Moller )be Rigbt to íite ßetreev .b.otvte ava Proportiovat Protectiov

¯
interíerence would be justiíied gi·en that the hijackers themsel·es caused the
necessitv oí the state interíerence and that it would lie in their hands to gi·e up
their criminal plan and thus pre·ent being shot down.
26




II.

(ourts oíten íind themsel·es in a diííicult position when dealing with national
securitv issues: ií thev make a mistake and o·erprotect human rights at the cost oí
national securitv. the price in terms oí human li·es to pav íor this mistake might
be ·erv high. 1he íact that thev are not experts on issues oí national securitv. taken
together with their composition as bodies oí unelected judges. explains the
tendencv oí being ·erv careíul in inter·ening in national securitv questions. But
this is onlv one side oí the storv: in a constitutional democracv. it is the proper
role oí the courts to eníorce constitutional rights. and thev cannot simplv abdicate
that responsibilitv on the ground that thev íeel incompetent to do so. that thev are
not elected. or that the majoritv might disagree with their conclusions. 1his is
particularlv true when an important right such as the right to liíe is at stake. lor
reasons whose analvsis and deíence is bevond this paper. the German l(( does
not normallv hold institutional deíerence in high regard. nor does it normallv
regard the íact that it is made up oí unelected judges as a problem. Broadlv
speaking. it sees its role as eníorcing the basic rights oí the Basic Law. interpreted
in a wav which íocuses on the .vb.tavce oí these rights. as opposed to
considerations oí institutional competence or democratic accountabilitv. 1his
explains. negati·elv. whv the (ourt will not shv awav írom interíering with the will
and expertise oí the elected branches. But positi·elv. it does not vet answer the
question oí what. ií anvthing. justiíies holding the right to liíe oí the innocent
passengers aboard the plane to be absolute. as a matter oí the substance oí human
rights.
Nothing in the wording oí Article 22, BL indicates that the right to liíe could
be absolute. 1he constitutional deíault` in this case is thereíore the proportionalitv
doctrine. In order to knock out the proportionalitv principle and come to the
conclusion oí an absolute right. the (ourt needs a special doctrinal tool. and it
íinds this tool in the principle oí human dignitv: since human dignitv is absolutelv
protected. whene·er a killing amounts to a ·iolation oí human dignitv. it must be
constitutionallv illegitimate. 1he problem here is that the content oí the dignitv
clause is notoriouslv unclear. 1he (ourt itselí relies on the old Kantian íormula oí
treating people not as means but as ends to justiív its conclusion that human
dignitv is ·iolated. 1his íormula is not onlv the most common approach to human
dignitv. but it has also been criticised íor its lack oí substance and guidance and
the corresponding danger oí deli·ering exactlv the answer that happens to suit the

26
ibid at |144|-|153|.

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8
interpreter`s personal moral or political ·iews best.

1he (ourt itselí had noticed
its ·agueness and declared in an earlier judgment that it is not rare íor persons to
be mere objects not onlv oí the circumstances and social de·elopments but also oí
the law in that thev must complv without regard to their interests`.
28
lrom a
doctrinal perspecti·e. it is disappointing that the (ourt did not e·en attempt to
pro·ide some claritv in this area.



III.

I will come back to what I regard as the main mistake in the judgment íurther
below. In this and the íollowing sections. I would like to take a step back írom the
A·iation Securitv Act case and address the general question oí whether there is
sometimes an absolute right not to be killed. meaning that the proportionalitv test
which is normallv applied to determine the limits oí rights must be modiíied or
abandoned íor these cases.
1he proportionalitv principle is at least looselv connected to
consequentialism
29
some would go íurther and claim that it represents
consequentialist thinking,. 1ake the example oí whether it is permissible to kill
one innocent person to pre·ent íi·e innocent persons írom being killed. Under a
straightíorward consequentialist approach. what counts are outcomes. and it
seems that we should preíer the outcome oí one dead person o·er the outcome oí
íi·e dead. 1hereíore. killing the one would be permissible.
1his conclusion seems to be problematic. 1he point is not so much that it
would necessarilv be wrong to kill the one person: rather it seems that coming to
this result simplv bv comparing numbers íi·e dead is worse than one dead`,
misses some important moral considerations. Intuiti·elv. it seems that killing an
innocent person is morallv wrong. e·en ií this killing leads to an outcome that is
o·erall preíerable. Killing innocent persons mav be morallv impermissible as an
actiov independentlv oí the ovtcove. produced. Robert Nozick`s theorv oí rights
illustrates such a deontological approach. le pro·ides the íollowing example:

A mob rampaging through a part oí town killing and burning will ·iolate the
rights oí those li·ing there. 1hereíore. someone might trv to justiív his
punishing another he knows to be innocent oí a crime that enraged a mob.
on the grounds that punishing this innocent person would help to a·oid e·en


cí N. loerster. Zur Bedeutung des Prinzips der Menschenwürde` 1983, ¡vri.ti.cbe ´cbvtvvg 93. 95.
28
BVeríGL 30. 1. 25-26.
29
(onsequentialism holds that the moral rightness or wrongness oí an action depends exclusi·elv on its
consequences.


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greater ·iolations oí rights bv others. and so would lead to a minimum
weighted score íor rights ·iolations in the societv.
30


Nozick presents two possible routes to the solution oí this problem. 1he íirst he
calls utilitarianism oí rights`. \hile classical utilitarianism is interested in
maximising happiness. this new ·ersion would ha·e the goal oí maximising rights
protection: the non-·iolation oí rights is simplv built into the desirable end state to
be achie·ed. Under this ·ersion punishing the innocent man would be justiíied
because. although punishing him ·iolates his rights. the number and weight oí
rights that would otherwise be ·iolated bv the mob is e·en greater.
Nozick preíers the second ·iew according to which rights íunction as side
constraints upon action`. Under this ·iew. rights determine which actions are
permissible independentlv oí the outcomes produced. So according to this
approach. ·iolating one right is impermissible e·en ií this would lead to pre·enting
a larger number oí rights ·iolations. 1hus. under this approach. punishing the one
innocent person would be impermissible. low does Nozick justiív his ·iew·

Side constraints upon action reílect the underlving Kantian principle that
indi·iduals are ends and not merelv means: thev mav not be sacriíiced or used
íor the achie·ing oí other ends without their consent. Indi·iduals are
in·iolable.
31


But whv mav not one person ·iolate persons íor the greater social good·
Indi·iduallv. we each sometimes choose to undergo some pain or sacriíice íor
a greater beneíit or to a·oid a greater harm: we go to the dentist to a·oid
worse suííering later: we do some unpleasant work íor its results: some
persons diet to impro·e their health or looks: some sa·e monev to support
themsel·es when thev are older. In each case. some cost is borne íor the sake
oí the greater o·erall good. \hv not. similarlv. hold that some persons ha·e
to bear some costs that beneíit other persons more. íor the sake oí the o·erall
social good· But there is no social entitv with a good that undergoes some
sacriíice íor its own good. 1here are onlv indi·idual people. diííerent
indi·idual people. with their own indi·idual li·es. Using one oí these people
íor the beneíit oí others. uses him and beneíits the others. Nothing more.
\hat happens is that something is done to him íor the sake oí others. 1alk oí
an o·erall social good co·ers this up. Intentionallv·, 1o use a person in this
wav does not suííicientlv respect and take account oí the íact that he is a
separate person. that this is the onlv liíe he has. le does not get some
o·erbalancing good írom his sacriíice. and no one is entitled to íorce this
upon him - least oí all a state or go·ernment that claims his allegiance as

30
R. Nozick. .varcby. ´tate. ava |topia Oxíord: Blackwell. 19¯4, 28-29.
31
ibid. 30-31.

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other indi·iduals do not, and that thereíore scrupulouslv must be neutral
between its citizens.
32


1his understanding oí rights as side constraints mav ha·e intuiti·e appeal:
howe·er. the reason Nozick gi·es is deíicient.
33
Assume that his argument that
·iolating a constraint treats a person as a means and not as an end was correct. So
the point is that treating people in a certain wav disrespects them. But then. whv
not conclude that we should minimise instances oí disrespect· Bv disrespecting
the one innocent person in Nozick`s example. we can pre·ent manv instances oí
disrespect to the people whose rights would otherwise be ·iolated bv the mob.
Similarlv. in the example oí whether it is permissible to kill one to pre·ent íi·e
írom being killed. we can pre·ent íi·e instances oí disrespect bv committing one
such instance. Nozick mav be right in e·ervthing he savs about the need to treat
people as ends. but he does not show a link between this and his claim that
treating people as means is alwavs morallv wrong independentlv oí the
consequences.
Nozick`s íailure is instructi·e about the traps on the wav to a coherent
justiíication oí an absolute right not to be killed. 1he problem is that ií one
íocuses on the interests oí the potential ·ictim. one can set his interests against the
interests oí those who would be sa·ed ií the one were killed. locussing on the
pre·ention oí suííering. pain. the respect owed to him as a human being. his
chances to li·e his liíe. and so on. does not help because the same points can be
used on the other side oí the equation. Ií there is a sound wav to deíend an
absolute right not to be killed. it must a·oid this íallacv.



IV.

It mav be helpíul to separate the approaches to justiív an absolute prohibition on
killing into two categories. lirst. the justiíication mav lie in something relating to
the person who commits the killing. íor example his integritv. responsibilitv. or
intention let me call these agevt·tocv..ea approacbe.,. Second. one can turn to the
·ictim and ask whether there is something pertaining to the ·ictim which gi·es the
·ictim the right not to be killed e·en ií bv killing him one could sa·e more írom
being killed I shall reíer to these as rictiv·tocv..ea approacbe.,. In this section. I will
examine two agent-íocussed approaches.
One possible agent-íocussed consideration relies on the distinction between
actions and omissions: arguablv. it is impermissible to acti·elv kill the one person.

32
ibid. 32-33.
33
cí A. \alen. Doing. Allowing. and Disabling: Some Principles Go·erning Deontological Restrictions`
1995, 80 Pbito.opbicat ´tvaie. 183. 185-186.


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but it is permissible to let the íi·e die. \hile this argument mav ha·e some
intuiti·e plausibilitv. it is howe·er partlv question-begging. Ií I come to a lake and
see mv son who has just íallen into the water. I am morallv obligated to pull him
out oí the water. just as I am morallv obligated not to push him into the water in
the íirst place. 1he real issue is one oí responsibilitv. Oíten. we are responsible íor
what we do and not íor what we let happen: but as the example shows. this is not
alwavs so. 1hereíore we need a theorv which explains under which conditions we
are responsible íor pre·enting a particular outcome. \hile the distinction between
actions and omissions might be rele·ant within that theorv. it cannot in itselí do all
the moral work.
Another approach is to draw a distinction between two points oí ·iew: an
objecti·e and a subjecti·e one. In his book )be Reiectiov ot Cov.eqvevtiati.v. Samuel
Scheííler deíends an agent-centred prerogati·e:

It might be suggested that |...| consequentialism ignores the independence oí
the personal point oí ·iew. 1his suggestion might be de·eloped in the
íollowing wav. Lach person has a point oí ·iew. a perspecti·e írom which
projects are undertaken. plans are de·eloped. e·ents are obser·ed. and liíe is
li·ed. Lach point oí ·iew constitutes. among other things. a locus relati·e to
which harms and beneíits can be assessed. and are tvpicallv assessed bv the
person who has the point oí ·iew. 1his assessment is both diííerent írom and
compatible with the assessment oí o·erall states oí aííairs írom an impersonal
standpoint.
34


Scheííler`s idea has some plausibilitv in the world oí personal ethics because it
limits the seeminglv endless demands that consequentialism imposes upon e·erv
person. But his approach cannot be applied to the state. 1he state. as an
abstraction. does not ha·e a personal point oí ·iew. 1he people acting in the name
oí the state íor example the minister oí deíence who wonders whether he ought
to order the shooting down oí a plane, do oí course ha·e such a personal point oí
·iew. but when acting in their capacities as representati·es oí the state we demand
oí them to take an objecti·e as opposed to personal perspecti·e. \e think that ií it
were objecti·elv the right thing to shoot down the plane or to kill one innocent
person to pre·ent íi·e írom being killed. then the go·ernment oííicial in charge
must lea·e worries about his personal ·iewpoint aside and do what is objecti·elv
right. Ií he is not prepared to do this. then he is the wrong person íor the tough
job oí go·erning a countrv. A íurther reason whv the idea oí an agent-centred
prerogati·e is unhelpíul is that it does not capture the real concern oí those
opposed to state-conducted killings. who want to argue that such killings are
impermissible. whereas Scheííler`s argument just deíends a prerogati·e not to kill.



34
S. Scheííler. )be Reiectiov ot Cov.eqvevtiati.v Oxíord: OUP. 1982, 20.

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V.

\hat about ·ictim-íocussed approaches· (an it plausiblv be argued that there is
something about the ·ictim which makes it impermissible to kill him. e·en ií bv
doing so one could pre·ent íi·e other killings írom happening· lrances Kamm
has made an important contribution to this debate. lor her. one must distinguish
between the person`s actuallv being killed on the one hand. and the person`s .tatv.
a. ivriotabte on the other hand. She admits that when it is permissible to kill one
person to pre·ent íi·e killings. one might sa·e li·es. lowe·er. e·en ií li·es are
sa·ed. something else suííers: the general status oí persons as in·iolable.

1he realm oí status is vot what happens to people. Ií manv are killed in
·iolation oí their rights because we mav not kill one to sa·e them. their status
as indi·iduals who should not be killed does not change. Ií it were permitted
to kill the one to sa·e them. their status would change. \e mav be concerned
about what happens. but be unwilling to pre·ent it in a wav that is onlv
consistent with a change in status. It is a mistake to see an opposition
between the rights oí the one person and the rights oí all others. since the
status oí e·ervone is aííected bv the wav it is permissible to treat one
person.
35


Kamm is interested not in what is done one killing rather than íi·e,. but what is
allowed to be done. lor her. ií it were pervi..ibte to kill one to pre·ent íi·e killings.
this would implv that persons are ·iolable. 1his would mean that thev had a lower
status compared to a situation where it was not permissible to kill one to pre·ent
íi·e killings. 1hereíore. she concludes. ií we want to protect people`s status as
in·iolable. we must accept that we must not kill one to pre·ent íi·e killings. 1his
ob·iouslv in·ol·es a sacriíice: sometimes we must let people die where we could
sa·e a greater number oí li·es. \hat is it about the status that justiíies this
sacriíice·

Ií we are in·iolable in this wav. we are more important creatures than more
·iolable ones: this higher status is in itselí a beneíit to v. |...| It is ha·ing the
status itselí which is a beneíit. not just its being respected |...| la·ing the
status is a beneíit. in part. because it makes one worthv oí respect. owed
respect |...| lurthermore. the world is. in a sense. a better place íor ha·ing
more important creatures in it. Our ha·ing higher status is a beneíit to tbe
rorta.
36



35
l.M. Kamm. Moratity. Mortatity. rot. 2 Oxíord: OUP. 1996, 2¯2 emphasis in the original,.
36
ibid. 2¯2 emphasis in the original,.


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1wo points ha·e to be noted to clariív the theorv and a·oid misunderstandings.
lirst. in·iolabilitv is not an all-or-nothing concept: one can be more or less
in·iolable. Kamm discusses the example that it is permissible to kill one to pre·ent
ten killings.

(ompared to a case where it is onlv permissible to kill one to pre·ent
one million killings. the in·iolabilitv oí the person is low in this case. lowe·er.
compared to a situation where it is permissible to kill one to pre·ent two killings. it
is high. Second. it is important to see that Kamm`s point is not that her status
argument applies to all instances oí killings. lor example. it surelv does not applv
to a killing carried out in selí-deíence: nobodv would claim that in order to
preser·e the status oí humans as in·iolable. one must tolerate being killed bv an
aggressor rather than kill the aggressor in selí-deíence. Similarlv. it is not ob·ious
whether Kamm`s argument applies to the A·iation Securitv Act case more on this
below,. So her argument is not that the permissibilitv oí each and e·erv killing
aííects the status oí humans as ·iolable: rather it is an argument justiíving the
general. deontological claim that .ovetive. an action vay be impermissible e·en
though it would lead to better outcomes. But the argument as to when this is the
case still needs to be made independentlv: Simple talk about in·iolabilitv is not
enough. Restrictions and constraints are better explained bv in·iolabilitv against
impositions that create inappropriate relations between ·ictim and beneíiciaries.`
38

So the question is under what circumstances would killing one to pre·ent íi·e
írom being killed lead to an inappropriate relationship between persons· 1here
exists a ·i·id. contro·ersial. and ongoing debate about these questions in moral
theorv. which cannot be done justice here. Much oí this debate íocuses on some
oí the countless ·ariations oí the so-called 1rollev Problem:
39
suppose a trollev is
heading towards a group oí íi·e people. It is going to kill them unless it is
redirected to a second track where it will kill one person instead. Is it morallv
permissible or required to redirect the trollev· (ompare this case to the lat Man
(ase: again. a trollev is heading towards the íi·e. but this time the onlv wav to stop
it is to take a íat man and throw him onto the tracks. 1he trollev will crash into the
man and come to a halt: the íat man will die. but the íi·e will remain uninjured. In
both cases one has the possibilitv oí killing one in order to pre·ent íi·e írom being
killed: vet most people would be prepared to redirect the trollev in the íirst case
but not to throw the íat man onto the tracks in the second case. 1he trollev cases
come in countless modiíications whose purpose it is to show the appeal or non-
appeal oí the ·arious principles which ha·e been suggested to íind satisíactorv
solutions to the question oí when it is permissible to kill some in order to sa·e
manv írom being killed.
Mattias Kumm has recentlv subscribed to one oí these approaches as
particularlv helpíul íor the discussion oí whether there are absolute rights in


ibid. 2¯5.
38
ibid. 2¯4.
39
ibid. ch. 6: J. 1homson. 1he 1rollev Problem` 1985, 94 Yate í ¡ 1395: \alen. n 33 abo·e.

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14
human rights law.
40
le reíers to an approach íirst presented bv Alec \alen. who
draws a distinction between enablers and disablers.
41
1his distinction can be
explained with regard to the two trollev cases introduced abo·e. In the íirst
scenario. it would doubtless be permissible or required, to redirect the trollev ií
there was no person on the other track. 1he claim oí the one person on that track
is thereíore that his being on the track should ai.abte the otherwise permissible
rescue action. (ompare this to the lat Man (ase: here the íat man is instrumental
to the success oí the rescue action. le is being v.ea a. a veav. to stop the trollev
and thus evabte the rescue action. Kumm argues that as a matter oí human rights
law. proportionalitv analvsis applies to the case oí disablers being killed. but that
there is a deontological constraint against killing an enabler.
42
Applving this logic
to the case oí the A·iation Securitv Act he concludes that the German l(( got it
wrong: the (ourt argued that the innocent people aboard the plane are being used
as a means. lowe·er. in realitv their claims are onlv those oí disablers: there is no
doubt. indeed the l(( itselí expresslv states. that the shooting down would be
justiíied ií there were no innocent passengers on board. 1hereíore the claim oí the
passengers is that their presence on the plane should make the otherwise
permissible shooting down impermissible. 1he passengers are. contrarv to the
argument oí the German l((. not being used as objects or means. 1hev are not
being used at all because their presence makes no diííerence to the rescue action.
and their death is onlv a regrettable side eííect.
43

On this point. the A·iation Securitv Act case is quite a spectacular íailure.
Note that this íailure does not aííect the outcome oí the case because. as
explained abo·e. the rele·ant part oí the A·iation Securitv Act was also declared
unconstitutional íor other reasons. lowe·er. imagine a scenario in which a
misguided interpretation oí the Kantian íormula controls the outcome: not onlv
would the (ourt protect a right which does not exist. it would also put national
securitv at risk in a wav which not onlv the legislature could not íix bv amending
the statute. but worse. which could not e·en be íixed bv amending the
constitution: under German constitutional law. the guarantee oí human dignitv in
Article 11, BL is unamendable according to the so-called eternitv clause` oí
Article ¯93,. which states that |a|mendments to this Basic Law aííecting |...| the
principles laid down in Articles 1 and 20 shall be inadmissible`.
I agree with much oí Kumm`s methodologv: in particular he deser·es credit
íor taking the discussion about absolute rights in human rights law in a ·erv
promising direction bv linking it to current debates in moral theorv. lowe·er. I
also think that the matter. especiallv with regard to the A·iation Securitv Act case.

40
M. Kumm. Political Liberalism and the Structure oí Rights: On the Place and Limits oí the
Proportionalitv Requirement` in Paulson and Pa·lakos eds,. íar. Rigbt.. Di.covr.e: )beve. ot tbe !or/ ot
Robert .te·y Oxíord: lart. 200¯, 131. 153-164.
41
\alen. n 33 abo·e.
42
Kumm. n 40 abo·e. 154.
43
ibid. 155-156.


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might be e·en more complex. \hile it seems to be uncontro·ersial that it is
indeed impermissible to kill enablers. it is not clear that it is alwavs permissible to
resort to consequentialist balancing in the case oí disablers. In the (ar (ase. a
person is rushing to the hospital to sa·e íi·e. íoreseeing that he will run o·er and
kill one person on the road.
44
1he one person on the road is a disabler: his claim
would ha·e to be that his presence on the street makes the otherwise permissible
rescue action impermissible. \et it seems impermissible to kill him.
45
Another case
introduced bv Kamm is the Grenade (ase: a runawav trollev will kill íi·e people
unless we explode a grenade that will kill an innocent bvstander as a side eííect.
46

Again. the bvstander would be a disabler: vet Kamm argues it would be
impermissible to explode the grenade.
1here is a remarkable parallel between the Grenade case and the A·iation
Securitv Act case. One diííerence between them is that in the A·iation Securitv
Act case. the passengers are part oí the weapon. I wonder whether the real reason
íor the permissibilitv oí balancing in the A·iation Securitv Act case is not that the
innocent passengers are disablers. but rather that thev are part oí the weapon.
Kamm stresses that íor the doctrine oí double eííect. which is closelv related to
the distinction between enablers and disablers. to ha·e anv plausibilitv. one must
allow íor the permissibilitv oí intending harm to the guiltv and in selí- or other-
deíense against e·en moral innocents who are threats`.

I cannot resol·e the issue
here: nor am I sure that the debates in moral theorv would pro·ide us with a
resolution to this moral puzzle mainlv because real liíe scenarios as the one
en·isaged bv the A·iation Securitv Act tend to be more complex than those
discussed in moral philosophv,: rather. I just want to point out the complexitv oí
the issue. Intuiti·elv I do agree with Kumm`s conclusion that there is no
deontological constraint against shooting down the plane: but I tend to think that
the reason íor this lies not in the role oí the passengers as disablers but rather in
the íact that the passengers are part oí the weapon.
1here are more unresol·ed problems with the prohibition to use people as
enablers in situations outside killing. Verv oíten the state uses people as means in
unobjectionable wavs. Kumm is aware oí this and acknowledges that there is
nothing wrong with requiring a passer-bv to suííer minor incon·eniences to aid
another person in serious distress.
48
le argues that using people as a means is not
alwavs absolutelv prohibited but that the distinction between enablers and

44
1he example was íirst used bv Philippa loot: see her Morat Ditevva. Oxíord: OUP. 2002, 81. 1he
íormulation used here deri·es írom l. Kamm. ívtricate ítbic. Oxíord: OUP. 200¯, 22.
45
\alen. n 33 abo·e. 203. discusses this case and modiíies his understanding oí disablers to the eííect
that while the one seems to be a disabler since vou could sa·e the íi·e períectlv well ií he were not in
vour wav` 204,. vou are onlv íree to respond to the needs oí some ií vou ha·e a right to use the
necessarv means` 205,. and the means oí sa·ing the íi·e includes getting to them. and that aspect oí the
means is what would kill the one` 20¯,. \hile this reasoning mav be correct in explaining the correct
outcome oí the case. I wonder ií it in substance abolishes the distinction between enablers and disablers
and introduces a new. more complex principle. e·aluating which is bevond the scope oí this essav.
46
Kamm. n 35 abo·e. 151.

ibid. 150.
48
Kumm. n 40 abo·e. 163.

13´2010


16
disablers completelv changes the baseline to be used to assess rights
iníringements`. 1ake the case oí a terrorist plausiblv threatening to blow up a citv
unless a speciíic innocent and nonthreatening person is tortured or killed.
1orturing or killing this person would mean to use him as an enabler. and this is
prohibited. Similarlv. in the widelv discussed transplant case.
49
killing one healthv
person in order to use his organs to sa·e íi·e other persons would be
impermissible. Bv wav oí contrast. requiring a passer-bv to make a phone call to
request an ambulance in order to sa·e a person who has just suííered a heart
attack seems permissible in spite oí the íact that this also uses the passer-bv as a
means. So in this light we might sav. with Kumm. that the distinction between
enablers and disablers changes the baseline. rather than completelv outruling the
use oí enablers. But it oíten seems to be the case that we use people in wavs which
are much more intrusi·e than requiring them to make phone calls. In countries
with compulsorv militarv ser·ice. e·erv citizen must íor a certain time íorgo his
íreedom oí proíession in order to ser·e in the armv and risk his liíe. and this is
oíten justiíied bv reíerence to certain assumed gains compared to the alternati·e
policv oí a proíessional armv. But those gains are at best relati·elv modest and are
hard to justiív e·en in light oí the proportionalitv principle: thev would certainlv
be entirelv impermissible under the changed baseline` approach. Similar problems
arise with regard to taxation which uses the taxpavers as means. or enablers. to
otherwise legitimate state goals.
50
Mv point is not that Kumm`s approach is wrong.
but I want to point to one aspect in which generalising it leads to other puzzles.
which might or might not be resol·able.
lere is a íurther puzzle. Kumm applies his approach to torture cases.
51
1he
most widelv discussed case in this context is the imaginarv ticking bomb case`: the
police ha·e caught a terrorist who has hidden a bomb in the centre oí a citv. and
the onlv wav to pre·ent the bomb írom going oíí and killing manv people is to
torture the terrorist in order to make him re·eal the whereabouts oí the bomb.
Kumm explains. to mv mind con·incinglv. that our íocus. at least initiallv. should
not be on the numbers oí people we could sa·e bv torturing the terrorist.
52
Rather.
it should be on the special relationship between the terrorist and the ·ictims. and
this relationship is independent oí whether there are one or one million ·ictims.
So it might be helpíul to íocus on a case with onlv one ·ictim. and as it happens.
there is a real and. again. German case at hand. In the notorious Jakob ·on
Metzler case. the police had threatened a suspect accused oí kidnapping a voung
bov with torture and was prepared to carrv out that threat, should he not re·eal
the whereabouts oí his ·ictim who was erroneouslv belie·ed to be still ali·e.
Under the threat. the suspect coníessed.

49
Kamm. n 35 abo·e. 143: \alen. n 33 abo·e. 18¯-188.
50
1his brings us back to Nozick`s concerns about the welíare state and his theorv oí rights. discussed
abo·e.
51
Kumm. n 40 abo·e. 158-164.
52
ibid. 160.


Kai Moller )be Rigbt to íite ßetreev .b.otvte ava Proportiovat Protectiov


As a preliminarv point. Kumm is aware oí the íact that there might be good
policv reasons íor prohibiting torture in all cases. such as reasons relating to the
extreme suííering oí the ·ictim. slipperv slope arguments. and practical or
svmbolic concerns.
53
lis question is thereíore whether there is a deontological
constraint against torture in this case. and this he denies: while it is true that the
kidnapper is used as a means - one oí the terrible things that torture does is that it
coerces people to commit selí-betraval in order to ser·e the purposes oí the
torturer - the deontological constraint is. according to Kumm. neutralised because
oí the personal responsibilitv oí the kidnapper íor the threat.
54

I belie·e that this is partlv but mavbe not entirelv correct. Let us modiív the
example. Suppose that the kidnapper is not captured bv the police but bv the
íather oí the bov. 1here is no time leít to call the police. and the onlv wav íor the
íather to sa·e his son is to torture the kidnapper in order to make him re·eal the
whereabouts oí his son. I think that most would agree although I acknowledge
this would require íurther argument, that it is permissible íor the íather to torture
the kidnapper. So íor this scenario I belie·e that Kumm is correct to sav that
because oí the personal responsibilitv oí the kidnapper íor the bov there is no
deontological constraint against torturing the kidnapper. But I am not sure about
what is right when the kidnapper is in the custodv oí the police. 1here mav be a
diííerence between what is permissible to do to a person in the name oí the state.
and what is permissible to do as a pri·ate person. and I do not think that this
diííerence is explainable onlv in terms oí institutional or policv considerations
such as slipperv slope arguments. Rather. mv intuition is that there is an additional
constraint at work here which leads to e·ervone`s. including the kidnapper`s. status
as in·iolable requiring that torture be impermissible ií carried out or authorised,
bv the state. Put diííerentlv: I tend to think that ií it were permissible to torture the
kidnapper in the name oí the state in the Jakob ·on Metzler case. this would aííect
ereryove`. and not onlv kidnappers`, in·iolabilitv: human beings would become
beings whom the state mav sometimes permissiblv torture: and mv intuition is that
this is too high a price to pav íor the protection oí li·es. except mavbe in
catastrophic scenarios eg a nuclear bomb in London,. Again. this does not e·en
come close to a watertight argument because one could replv that the
permissibilitv to torture the kidnapper aííects onlv the status oí kidnappers and
comparable aggressors. as opposed to the status oí e·ervone. I repeat that I do not
claim to resol·e the issue here but onlv point out some oí the puzzles in the area
oí deontological constraints. It appears to be a possibilitv that deontological
constraints applv in diííerent wavs to pri·ate persons and the state.





53
ibid. 159.
54
ibid. 161.

13´2010


18
VI.

In spite oí the manv open questions. I think that Kumm`s and \alen`s distinction
between enablers and disablers points to one important conclusion: the status oí
innocent and non-threatening persons as in·iolable requires that thev not be killed
when killing them would in·ol·e using them as a means as enablers,. 1his does
not necessarilv amount to an absolute right because. as I pointed out abo·e.
in·iolabilitv is not an all-or-nothing concept: persons can be more or less
in·iolable. But what can be concluded is that while mavbe not absolute. the right
to liíe certainlv oííers to enablers more than simplv proportional protection:
enablers cannot justiíiablv be killed on the ground that this leads to a reduction in
the o·erall number oí people getting killed. It is thereíore correct to sav that the
right to liíe is sometimes absolute or near-absolute.
lor the reasons gi·en abo·e I am not con·inced that consequentalist
balancing is alwavs permissible in the case oí disablers. I do howe·er think that
there are at least some scenarios where it is permissible to kill innocent disablers.
such as in the one en·isaged bv the A·iation Securitv Act case. 1his conclusion
will lea·e manv opponents oí state-conducted killings unsatisíied because thev
want to stop the state írom engaging in the business oí killing innocent. non-
threatening persons altogether. I cannot think at the moment oí anv realistic case
where the state would seriouslv consider killing enablers one would ha·e to think
oí examples such as terrorists threatening to commit a de·astating attack unless
one innocent person is killed,. 1he íact that such cases are not realistic in the sense
that no state would complv with such requests shows that deontological
constraints ha·e a íirm place in our moral and legal reasoning. including our
reasoning about what human rights require. But thev cannot be extended to co·er
all cases oí killing innocents.

it presents some approaches to absolute rights from moral philosophy and applies them to human and constitutional rights law. . It then offers a few thoughts on the Court's reasoning. Law Department.uk. The question is important not only for practical purposes but also for the theory of human and constitutional rights: an absolute right presents a departure from what is now the 'default' in constitutional and human rights law around the world.moller@lse.ac. namely the proportionality approach according to which an interference with a right is justified if it serves a legitimate goal and is proportionate to that goal. It proceeds by first presenting an account of the leading case in this area. This paper tries to shed some light on the issue by focussing on the right to life. I would like to thank all participants for their valuable feedback. Having concluded that the judgment offers little help in illuminating this problem. namely the judgment of the German Federal Constitutional Court in the Aviation Security Act case. Earlier versions of this paper were presented at a workshop on 'Shooting to Kill' in Oiiati. Email: k. * Lecturer in Human Rights Law. Spain. The conclusion is that the right to life will under certain circumstances be absolute or near-absolute. in the summer of 2009 and at the LSE staff research seminar in early 2010. specifically with regard to what it has to say about the idea of absolute rights. London School of Economics and Political Science.The Right to Life Between Absolute and Proportional Protection Kai Moller * Abstract: One of the puzzles of human and constitutional rights law is whether there are any rights which are absolute. but that these circumstances occur less frequently than is sometimes assumed. where the Court held that shooting down an airplane which was likely to be used as a terrorist weapon was a violation of the right to life in conjunction with the human dignity of the innocent passengers aboard.

But this does of course not imply that all constitutional rights are open to balancing in all situations.t I do accept and subscribe to the desirability of balancing in constitutional rights law. and this alone would merit a close analysis. Robert Alexy's model of rights as principles which have to be balanced against conflicting principles is one of the most influential theoretical accounts of this developrnent. trans. 2002).rtitutionai 2 .s While I am critical of some aspects of Alexy's model. Alexy. I will then offer a few thoughts on the Court's reasoning. Oxford: OUP. rather. it may turn out that some are and some are not.rtitutionai Right. or some are in most but not all situations. the issue is important for the theory of human and constitutional rights. cf Article 3 of the European Convention on Human Rights. specificallywith regard to what it has to say about the idea of absolute rights. 3 See my 'Balancing and the Structure of Constitutional Rights' (2007) 5 Lzw453. But then we need a theory which distinguishes absolute from non-absolute rights. It will proceed by first presenting an account of the leading case in this area. Some of the candidates which come to mind are the right not to be tortured! and the right to life. My conclusion will be that the right to life will under certain circumstances be absolute or near-absolute. ie rights which must never be interfered with. I will present some approaches to absolute rights from moral philosophy and apply them to human and constitutional rights law. The question of absolute rights touches upon issues which have become practically highly relevant especially since the terrorist attacks of 11 September 2001 and the subsequent changes in the attitudes of some states towards torture and killings. where the Court held that shooting down an airplane which was likely to be used as a terrorist weapon was a violation of the right to life in conjunction with the human dignity of the innocent passengers aboard. R. But furthermore. Having concluded that the judgment offers little help in illuminating this problem. 1 2 of Con. A Theory ofCon.13/2010 INTRODUCTION One of the puzzles of human and constitutional rights law is whether there are any rights which are absolute. namely the judgment of the German Federal Constitutional Court (FCC) in the Aviation Security Act case. but that these circumstances will be rarer than sometimes thought. Few ideas have spread as quickly and pervaded an entire area of law as thoroughly as the proportionality approach in constitutional rights law around the world. This paper will try to shed some light on this question by focussing on the right to life.r (lulian Rivers.

Human 4 For an analysis of the case.. To respect and protect it shall be the duty of all state authority. Relying on a well-established principle of German criminal law according to which lives must never be balanced. some doctrinal background regarding German constitutional jurisprudence is helpful. it must be necessary in that there is no other. 7 There is an ongoing discussion in German academia whether Article 1(1) stipulates a right to human dignity or merely dignity as a (nevertheless binding and justiciable) constitutional value. Human Dignity. The debate is of no practical relevance. as there is a consensus to the effect that wherever human dignity is violated. which may be disputed in light of the fact that they are going to die in the attack anyway. they argued that the proportionality principle has no application in the case of the intentional killing of innocents. and the Federal Constitutional Court' (2006) 51 Public Law 457. 'On Treating Persons as Ends: The German Aviation Security Act. It means that each interference with constitutional rights must not only be prescribed by law. Its most controversial part was §14(3) which gave the Minister of Defence permission to order the shooting down of passenger planes if according to the circumstances it had to be assumed that the aircraft was to be used against the lives of people and if the shooting down was the only effective defence against the threat.Kai Moller The Right to Lift Between Absolute and Proportional Protection I. Article 1(1): 'Human dignity shall be inviolable. less restrictive means to reach the goal.>Taken literally. and the latter meaning that any interference will automatically amount to a violation of the right. but must also be proportional. there is a distinction between 'inviolable' (unverlet:<jich) and 'untouchable' (unantastbar). namely whether those aboard the plane should count. this would mean that as long as there is a law authorising it. it must be suitable to further this goal. First.4 To understand the decision. the right to life is not guaranteed absolutely. One of the German laws passed as a response to the attacks of 11 September 2001 is the Aviation Security Act (Luftsicherheitsgesetz)." The official English translations does not quite capture a subtle difference of language made in the original text: In German legal terminology. 5 Article 2(2) of the Basic Law: 'Every person shall have the right to life and physical integrity [. and it must be proportionate stricto sensu in that its costs must not clearly exceed its benefits. it must serve a legitimate goal. that is. the state could kill unrestrictedly. This part of the statute was declared void by the FCC in 2005. there will necessarily also be a violation of one of the explicit rights in the subsequent articles of the Basic Law.] These rights may be interfered with only pursuant to a law.v But it is exactly this conclusion that the petitioners opposed. Applying the proportionality test to the case of a hijacked airplane seems to indicate that the shooting down could easily be justified at least in those cases where the number of people likely to die in the terrorist attack for which the plane is being used exceeds the number of passengers on board. but can be interfered with pursuant to a law. provided that it comes up with a legitimate justification. Moller. cf K. This is where the doctrine of proportionality comes in. Article 1(1) of the Basic Law accords a special place to human dignity.. S Basic Law. the former meaning that the state may sometimes interfere with the object of the right.' 3 . according to the wording of the Basic Law. however. n 5 above.' 6 There is an additional problem.

'Schutz der Privatsphare' in J.vol. 46-47. Schmitt Glaeser. 'Der Grundrechtssatz von der Menschenwiirde' (1956) 81 Archiv de.rrecht. 13 BVerfGE 39. 1 BvR 357/05 of 15/02/2006 at [89]-[117]. cf W. even when one could prevent the violation of the dignity of thousands by violating one person's dignity. The Court based its decision in the Aviation Security Act case on two grounds. 10 G.r:The Con.rOffentlichen Recht. 6 (Heidelberg: C. Kirchhof (eds) Handbuch de. MUller. argued that dignity required treating persons as subjects rather than objects. employed by the FCC in many decisions. It stresses that the right to life is guaranteed only pursuant to law.13/2010 dignity.1989) 41.rt-Communi. and has referred to dignity as a principle guiding the interpretation of other provisions of the basic law in many contexts. prevented the concept from becoming both one of the cornerstones of German constitutional jurisprudence and a major export. Isensee and P. in particular to the new South African11 and Eastern Europeanl. 12 cf C. however.r Staat." Therefore.1. The Court held that §14(3) of the Aviation Security Act violated both human dignity and the right to life in so far as it permitted the shooting down of aircrafts in situations where there were innocent persons on board. The German FCC regards human dignity as the basis of all constitutional rights and the central value of the Basic Law. it argued that the law was unconstitutional because the Federation lacked the legislative competence for it. Diirig.rtitutional Court and the Right to Human Dignity (Oxford: Hart. this would not be permissible. is the one first proposed by Gunter Durig in the 19S0s who. Importing the Law in Po. Furthermore. No general theory of what is and is not part of human dignity has yet been successfully put forward. 2003) ch 3. even when one could save the lives of thousands by one violation of human dignity. Dupre. The Court begins its assessment with some general remarks on the right to life and human dignity. 127.constitutions.15 The second and more spectacular ground concerns the violation of constitutional rights. is 'untouchable'.F.r.rition. 15 BVerfG. Brugger. 9 4 .rt Tran.88. it does not come as a surprise that in light of this doctrinal approach to human dignity it seems necessary to interpret dignity quite narrowly. 'May Government Ever Use Torture? Two Responses from German Law' (2000) 48 omz)aro.203. as the 'superior value' of the Basic law.t? The notorious difficulty in defining human dignity has not. Note the radical consequences of this approach: in principle. but moves on immediately to argue that any law which interferes with it must be interpreted in light of both the right to life and human dignity: 'Human This is the traditional doctrine which is still endorsed by the majority of commentators but has been challenged in the Jakob von Metzler case and the ticking bomb case to which I will briefly refer below.tive Law 661. First.r 117. employing the Kantian distinction between treating persons as ends and as means to an end. The most widespread definition. and an interference can therefore never be justified. it must not be carried out. 11 s 10. 14 cf W. for example in its abortion decisionsl'' and its ptlvacy jurisprudence!".

their status as subjects of the law [. However."? Having set out the doctrine in general. They can no longer influence the circumstances of their lives independently from others in a self-determined manner. and that the individual can demand as a matter of principle to be recognised in the community as an equal member with his own value.. Also the state which in such a situation resorts to the measure provided by §14(3) of the Aviation Security Act treats them as mere objects of its rescue operation for the protection of others [.'18 In the following section. It argues that it will be practically impossible to judge whether the statutory conditions for the shooting down have been met. the persons on board the aircraft. with their lives being disposed of unilaterally by the state. the Court declares: Starting from the ideas of the founders of the Basic Law that it is a part of human nature to determine oneself in freedom and to freely develop oneself. In light of the fact that Germany is a relatively small country and that accordingly the time window in which to make the decision 16 17 18 ibid at [119]. By their killing being used as a means to save others.J Crew and passengers cannot sidestep these actions of the state [. ibid at [123]-[124]. on dignity. who. Citing its own jurisprudence. Such a treatment ignores the status of the persons affected as subjects endowed with dignity and inalienable rights. ibid at [121]. in what follows. are denied the value which is due to a human being for his or her own sake. the duty to respect and protect human dignity generally excludes the possibility of making human beings the mere object of the state. Thus. as victims.. the Court relies on an additional reason. they are treated as objects and at the same time deprived of their rights. 5 . it then relies on the old doctrine of treating persons as subjects rather than objects.'16This assumed close connection between the right to life and human dignity is the bridge which enables the Court to leave the right to life behind and concentrate.J but are defencelessly and helplessly at the mercy of the state with the consequence that they will be shot down together with the aircraft and therefore be killed with near certainty.. J is plainly prohibited. This makes them objects not only of the perpetrators of the crime.Kai Moller The Right to Lift Between Absolute and Proportional Protection life is the vital basis of human dignity as the primary structural principle and superior constitutional value.. are themselves in need of protection. it now takes the Court a mere two paragraphs to apply the facts of the case to the formula: The passengers and crew members who are exposed to such a mission are in a desperate situation. It does not give a general definition of human dignity but stresses the necessity to decide on a caseby-case basis. any treatment of persons by public authorities which categorically questions their quality as subjects...

where only the hijackers justified shooting subject in constitutional terms.24 Each of these objections raises serious points could have been the basis of long discussions. with the basic rights deaths). In the final section of the judgment. (because this follows although the shooting of the hijackers down would be a 'serious' interference it would certainly lead to their 19 20 21 22 23 24 25 ibid ibid ibid ibid ibid ibid ibid at at at at at at at [125]-[129]. the argument that there those who would be the victims should the terrorist with the counterargument that although such a and and was a positive duty towards attack be carried out is refuted not violate human duty exists. the Court concludes For the Court. applicable. the Court to the position consequences down as a violation of dignity because the criminals are not being treated 'On the contrary. individual prevent lifespan.t? then that sets out to consider they will be shot shot down. for the Court. [132]. [135]-[136]. proportionality In a lengthy analysis. the shooting In such cases. a very real danger of rash decisions. as dignity is not involved.v' is 'shows that someone who is in an aircraft which is used as a weapon accordingly are no longer regarded blatantly that the victims of such an incident as humans. with them any more than absolutely necessary one counterargument. him it corresponds for the to make accountable of his autonomous analysis becomes as objects: actions.13/2010 will be very small. to The idea that an is regarded by the was under a duty to sacrifice himself where this is the only option which aim at its destruction attacks on the community Court as too far removed not concerned from the point of the Aviation Security Act which was with attacks on the state as such. an immense and therefore The aircraft implicitly onboard weapon conclusions. the shooting down would be proportionate.'25 Therefore. [141]. there was. however.23 Finally. [131]. almost that in those cases where from the fact that. [134]. the Court does not engage and in most cases restricts itself to the Court sets out why in those cases down would be does not regard the of the aggressor as a are on board the aircraft. the means used to comply with the duty must be constitutional dignity. [137]-[139]. the there is reason to assume that the aircraft will be used to kill people. 6 .s? and refute down The should argument some objections to its thereby who are It rejects as unrealistic consent is dismissed to being the proposition that passengers that who enter an those Court knowing pressure to decide quickly it be hijacked an aircraft are going to die anyway if the aircraft is used as a terrorist on the ground that human life and dignity must enjoy the remaining with no regard of the probable and has to accept being treated and are therefore made objects'v? same degree of protection The assumption himself part of that weapon but as a part of a thing.

interpreted in a way which focuses on the substance of these rights. that they are not elected. The Court itself relies on the old Kantian formula of treating people not as means but as ends to justify its conclusion that human dignity is violated. and they cannot simply abdicate that responsibility on the ground that they feel incompetent to do so. The constitutional 'default' in this case is therefore the proportionality doctrine. it must be constitutionally illegitimate. why the Court will not shy away from interfering with the will and expertise of the elected branches. and it finds this tool in the principle of human dignity: since human dignity is absolutely protected. or that the majority might disagree with their conclusions. But positively. if anything. explains the tendency of being very careful in intervening in national security questions. the Court needs a special doctrinal tool. But this is only one side of the story: in a constitutional democracy. it is the proper role of the courts to enforce constitutional rights. as opposed to considerations of institutional competence or democratic accountability. it does not yet answer the question of what. it sees its role as enforcing the basic rights of the Basic Law. The fact that they are not experts on issues of national security. This explains. 7 . Broadly speaking. This formula is not only the most common approach to human dignity. as a matter of the substance of human rights. In order to knock out the proportionality principle and come to the conclusion of an absolute right. whenever a killing amounts to a violation of human dignity.26 II. justifies holding the right to life of the innocent passengers aboard the plane to be absolute. but it has also been criticised for its lack of substance and guidance and the corresponding danger of delivering exactly the answer that happens to suit the 26 ibid at [144]-[153]. Courts often find themselves in a difficult position when dealing with national security issues: if they make a mistake and overprotect human rights at the cost of national security. taken together with their composition as bodies of unelected judges. nor does it normally regard the fact that it is made up of unelected judges as a problem. the price in terms of human lives to pay for this mistake might be very high. the German FCC does not normally hold institutional deference in high regard. For reasons whose analysis and defence is beyond this paper. This is particularly true when an important right such as the right to life is at stake. Nothing in the wording of Article 2(2) BL indicates that the right to life could be absolute.Kai Moller The Right to Lift Between Absolute and Proportional Protection interference would be justified glVen that the hijackers themselves caused the necessity of the state interference and that it would lie in their hands to give up their criminal plan and thus prevent being shot down. negatively. The problem here is that the content of the dignity clause is notoriously unclear.

regard to their interests'i-'' that the Court did not even attempt to III.1. ('five dead is worse than one dead') Intuitively.95. it is disappointing provide some clarity in this area. it seems that killing an as an moral considerations. BVerfGE 30.13/2010 interpreter's personal moral or political views best_27The Court itself had noticed and social developments but also of From a its vagueness and declared in an earlier judgment that 'it is not rare for persons to be mere objects not only of the circumstances the law in that they must comply without doctrinal perspective. Hoerster. Therefore. proportionality (some principle would go 1S further there is test or to to kill and it below. 29 Consequentialism holds that the moral rightness or wrongness of an action depends exclusively on its consequences. rather it seems that coming to this result simply by comparing misses some important innocent overall preferable. I would like to take a step back from the of whether sometimes an absolute right not to be killed. Under a seems that we should prefer the outcome of one dead person over the outcome of five dead. someone might try to justify his another he knows to be innocent of a crime that enraged a mob. what counts it is permissible are outcomes. seems to be problematic. theory of rights action independently illustrates such a deontological approach.25-26. person to prevent five innocent persons from being killed. numbers The point is not so much that it would necessarily be wrong to kill the one person. 27 28 8 . meaning that the proportionality the limits of rights must be modified at least and loosely claim that connected it consequentialisrn-? consequentialist one innocent straightforward further represents thinking). even if this killing leads to an outcome that is Killing innocent persons may be morally impermissible Robert Nozick's of the outcomes produced. I will come back to what I regard as the main mistake in the judgment Aviation Security Act case and address the general question which is normally applied to determine abandoned The for these cases. on the grounds that punishing this innocent person would help to avoid even cfN. In this and the following sections. person is morally wrong. This conclusion killing the one would be permissible. He provides the following example: A mob rampaging through a part of town killing and burning will violate the rights of those punishing living there. Therefore. 'Zur Bedeutung des Prinzips der Menschenwiirde' (1983) 93. Take the example of whether consequentialist approach.

rights determine which actions are permissible independently of the outcomes produced. In each case. with their own individual lives. and Utopia (Oxford: Blackwell. we do some unpleasant work for its results. 1974) 28-29. some cost is borne for the sake of the greater overall good. uses him and benefits the others. Nozick prefers the second view according to which rights function as 'side constraints upon action'. similarly. ibid. 9 . He does not get some overbalancing good from his sacrifice. the number and weight of rights that would otherwise be violated by the mob is even greater. for the sake of the overall social good? But there is no social entity with a good that undergoes some sacrifice for its own good. although punishing him violates his rights. hold that some persons have to bear some costs that benefit other persons more. Talk of an overall social good covers this up. some save money to support themselves when they are older. we each sometimes choose to undergo some pain or sacrifice for a greater benefit or to avoid a greater harm: we go to the dentist to avoid worse suffering later. Why not. Individuals are inviolable-'! But why may not one person violate persons for the greater social good? Individually.least of all a state or government that claims his allegiance (as 30 31 R. There are only individual people. While classical utilitarianism is interested in maximising happiness. How does Nozick justify his view? Side constraints upon action reflect the underlying Kantian principle that individuals are ends and not merely means. Under this version punishing the innocent man would be justified because. What happens is that something is done to him for the sake of others. So according to this approach. different individual people. and no one is entitled to force this upon him . under this approach. Thus. The first he calls 'utilitarianism of rights'. they may not be sacrificed or used for the achieving of other ends without their consent. that this is the only life he has. Using one of these people for the benefit of others. some persons diet to improve their health or looks. punishing the one innocent person would be impermissible. this new version would have the goal of maximising rights protection: the non-violation of rights is simply built into the desirable end state to be achieved. 30-31. State. and so would lead to a rrurumum weighted score for rights violations in the society" Nozick presents two possible routes to the solution of this problem. Nozick.Kai Moller The Right to Lift Between Absolute and Proportional Protection greater violations of rights by others. Under this view. (Intentionally?) To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person. violating one right is impermissible even if this would lead to preventing a larger number of rights violations. Nothing more.

So the point is that treating people in a certain way disrespects them. First. Similarly. the respect owed to him as a human being. does not help because the same points can be used on the other side of the equation. Second. the reason Nozick gives is deficient. Focussing on the prevention of suffering. it must avoid this fallacy. I will examine two agent-focussed approaches. IV. 32-33. responsibility. But then.13/2010 other individuals do not) and that therefore scrupulously must be neutral between its citizens. one can turn to the victim and ask whether there is something pertaining to the victim which gives the victim the right not to be killed even if by killing him one could save more from being killed (I shall refer to these as victimfocussed approaches). one can set his interests against the interests of those who would be saved if the one were killed. however. 10 .V This understanding of rights as side constraints may have intuitive appeal. cf A. his chances to live his life. It may be helpful to separate the approaches to justify an absolute prohibition on killing into two categories. 32 33 ibid. If there is a sound way to defend an absolute right not to be killed. in the example of whether it is permissible to kill one to prevent five from being killed.185-186.v' Assume that his argument that violating a constraint treats a person as a means and not as an end was correct. pain. it is impermissible to actively kill the one person. and so on. One possible agent-focussed consideration relies on the distinction between actions and omissions: arguably. Nozick may be right in everything he says about the need to treat people as ends. In this section. The problem is that if one focuses on the interests of the potential victim. but he does not show a link between this and his claim that treating people as means is always morally wrong independently of the consequences. 'Doing. Nozick's failure is instructive about the traps on the way to a coherent justification of an absolute right not to be killed. for example his integrity. we can prevent five instances of disrespect by committing one such instance. why not conclude that we should minimise instances of disrespect? By disrespecting the one innocent person in Nozick's example. the justification may lie in something relating to the person who commits the killing. and Disabling: Some Principles Governing Deontological Restrictions' (1995) 80 Pbilosopbica! StudieJ 183. we can prevent many instances of disrespect to the people whose rights would otherwise be violated by the mob. Allowing. Walen. or intention (let me call these agentfocussed approaches).

who want to argue that such killings are impermissible. The people acting in the name of the state (for example the minister of defence who wonders whether he ought to order the shooting down of a plane) do of course have such a personal point of view. and are typically assessed by the person who has the point of view. whereas Scheffler's argument just defends a prerogative not to kill. But his approach cannot be applied to the state.. and life is lived. but when acting in their capacities as representatives of the state we demand of them to take an objective as opposed to personal perspective. among other things. We think that if it were objectively the right thing to shoot down the plane or to kill one innocent person to prevent five from being killed. Scheffler. then he is the wrong person for the tough job of governing a country. I am morally obligated to pull him out of the water. This assessment is both different from and compatible with the assessment of overall states of affairs from an impersonal standpoint. we are responsible for what we do and not for what we let happen. events are observed. this is not always so. If I come to a lake and see my son who has just fallen into the water. plans are developed. Samuel Scheffler defends an agent-centred prerogative: It might be suggested that [. a locus relative to which harms and benefits can be assessed. just as I am morally obligated not to push him into the water in the first place. 34 S. In his book The Rrjection of Consequentialisr». Each point of view constitutes. Another approach is to draw a distinction between two points of view: an objective and a subjective one. does not have a personal point of view. If he is not prepared to do this. it is however partly question-begging. as an abstraction. The state. a perspective from which projects are undertaken. but as the example shows. The Rejection 11 . Often.J consequentialism ignores the independence of the personal point of view. This suggestion might be developed in the following way.Kai Moller The Right to Lift Between Absolute and Proportional Protection but it is permissible to let the five die. While this argument may have some intuitive plausibility.. The real issue is one of responsibility. Each person has a point of view. it cannot in itself do all the moral work. While the distinction between actions and omissions might be relevant within that theory. Therefore we need a theory which explains under which conditions we are responsible for preventing a particular outcome. then the government official in charge must leave worries about his personal viewpoint aside and do what is objectively right. A further reason why the idea of an agent-centred prerogative is unhelpful is that it does not capture the real concern of those opposed to state-conducted killings." Scheffler's idea has some plausibility in the world of personal ethics because it limits the seemingly endless demands that consequentialism imposes upon every person.

J Furthermore.J It is having the status itself which is a benefit. What is it about the status that justifies this sacrifice? If we are inviolable in this way. in a sense. this higher status is in itself a benefit to us [. if we want to protect people's status as inviolable. 2 (Oxford: OUP.13/2010 v.. since the status of everyone is affected by the way it is permissible to treat one person.J Having the status is a benefit.. if it were permissible to kill one to prevent five killings. not just its being respected [. If it were permitted to kill the one to save them.. 1996) 272 (emphasis in the original). but what is allowed to be done. we must accept that we must not kill one to prevent five killings..M. However. and the person's status as inviolable on the other hand. their status as individuals who should not be killed does not change. a better place for having more important creatures in it. She admits that when it is permissible to kill one person to prevent five killings. Mortality. because it makes one worthy of respect. For her. We may be concerned about what happens. one must distinguish between the person's actually being killed on the one hand. Morality. but be unwilling to prevent it in a way that is only consistent with a change in status. For her. something else suffers: the general status of persons as inviolable. vol. This obviously involves a sacrifice: sometimes we must let people die where we could save a greater number of lives. This would mean that they had a lower status compared to a situation where it was not permissible to kill one to prevent five killings. 12 . 36 35 36 F.. owed respect [. ibid. Our having higher status is a benefit to the world. their status would change. The realm of status is not what happens to people. Kamm. the world is. It is a mistake to see an opposition between the rights of the one person and the rights of all others. even if lives are saved. Therefore. even if by doing so one could prevent five other killings from happening? Frances Kamm has made an important contribution to this debate. this would imply that persons are violable. 272 (emphasis in the original).. in part. we are more important creatures than more violable ones. one might save lives. If many are killed in violation of their rights because we may not kill one to save them. What about victim-focussed approaches? Can it plausibly be argued that there is something about the victim which makes it impermissible to kill him.c> Kamm is interested not in what is done (one killing rather than five). she concludes.

it is high. In both cases one has the possibility of killing one in order to prevent five from being killed. Thomson. it surely does not apply to a killing carried out in self-defence: nobody would claim that in order to preserve the status of humans as inviolable. inviolability is not an all-or-nothing concept: one can be more or less inviolable. a trolley is heading towards the five. 274. controversial. but this time the only way to stop it is to take a fat man and throw him onto the tracks. compared to a situation where it is permissible to kill one to prevent two killings. But the argument as to when this is the case still needs to be made independently: 'Simple talk about inviolability is not enough.Kai Moller The Right to Lift Between Absolute and Proportional Protection Two points have to be noted to clarify the theory and avoid misunderstandings. yet most people would be prepared to redirect the trolley in the first case but not to throw the fat man onto the tracks in the second case. 275. rather it is an argument justifying the general. ch. Second. The trolley cases come in countless modifications whose purpose it is to show the appeal or nonappeal of the various principles which have been suggested to find satisfactory solutions to the question of when it is permissible to kill some in order to save many from being killed. Mattias Kumm has recently subscribed to one of these approaches as particularly helpful for the discussion of whether there are absolute rights rn 37 38 39 ibid. deontological claim that sometimes an action mqy be impermissible even though it would lead to better outcomes. J.it is not obvious whether Kamm's argument applies to the Aviation Security Act case (more on this below).'38 So the question is under what circumstances would killing one to prevent five from being killed lead to an inappropriate relationship between persons? There exists a vivid. It is going to kill them unless it is redirected to a second track where it will kill one person instead.s? Compared to a case where it is only permissible to kill one to prevent one million killings. 'The Trolley Problem' (1985) 94 Yale LJ 1395. Walen. and ongoing debate about these questions in moral theory. Restrictions and constraints are better explained by inviolability against impositions that create inappropriate relations between victim and beneficiaries. The trolley will crash into the man and come to a halt. ibid. ibid. First. However. it is important to see that Kamm's point is not that her status argument applies to all instances of killings.>? suppose a trolley is heading towards a group of five people. Much of this debate focuses on some of the countless variations of the so-called Trolley Problern. but the five will remain uninjured. Kamm discusses the example that it is permissible to kill one to prevent ten killings. For example. one must tolerate being killed by an aggressor rather than kill the aggressor in self-defence. n 33 above. Is it morally permissible or required to redirect the trolley? Compare this case to the Fat Man Case: again. the inviolability of the person is low in this case. So her argument is not that the permissibility of each and every killing affects the status of humans as violable. Similarly. which cannot be done justice here. 13 . the fat man will die. 6.

However. 4() M. 14 . Right. proportionality analysis applies to the case of disablers being killed.13/2010 human rights law. but worse.v Applying this logic to the case of the Aviation Security Act he concludes that the German FCC got it wrong: the Court argued that the innocent people aboard the plane are being used as a means.. 41 Walen.40He refers to an approach first presented by Alec Walen. who draws a distinction between enablers and disablers+t This distinction can be explained with regard to the two trolley cases introduced above. 155-156. in particular he deserves credit for taking the discussion about absolute rights in human rights law in a very promising direction by linking it to current debates in moral theory. 'Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement' in Paulson and Pavlakos (eds). especially with regard to the Aviation Security Act case. imagine a scenario in which a misguided interpretation of the Kantian formula controls the outcome: not only would the Court protect a right which does not exist. Compare this to the Fat Man Case: here the fat man is instrumental to the success of the rescue action. in reality their claims are only those of disablers: there is no doubt. The passengers are. contrary to the argument of the German FCC. 154. not being used as objects or means. Kumm. the relevant part of the Aviation Security Act was also declared unconstitutional for other reasons. n 33 above. The claim of the one person on that track is therefore that his being on the track should disable the otherwise permissible rescue action. the guarantee of human dignity in Article 1(1) BL is unamendable according to the so-called 'eternity clause' of Article 79(3).r of the Work of RobertAlexy (Oxford: Hart. 153-164..43 On this point. La». the Aviation Security Act case is quite a spectacular failure. Kumm argues that as a matter of human rights law. 42 Kumm. Discourse: Theme. indeed the FCC itself expressly states. which could not even be fixed by amending the constitution: under German constitutional law.J the principles laid down in Articles 1 and 20 shall be inadmissible'. it would also put national security at risk in a way which not only the legislature could not fix by amending the statute.r. as explained above. Therefore the claim of the passengers is that their presence on the plane should make the otherwise permissible shooting down impermissible. which states that '[aJmendments to this Basic Law affecting [. it would doubtless be permissible (or required) to redirect the trolley if there was no person on the other track. He is being used as a means to stop the trolley and thus enable the rescue action. I also think that the matter. They are not being used at all because their presence makes no difference to the rescue action. However. However. n 40 above. that the shooting down would be justified if there were no innocent passengers on board. Note that this failure does not affect the outcome of the case because. 2007) 131. but that there is a deontological constraint against killing an enabler. 43 ibid. and their death is only a regrettable side effect. In the first scenario. I agree with much of Kumm's methodology.

2002) 81. n 35 above. I just want to point out the complexity of conclusion I do agree with against shooting down the plane. nor am I sure that the debates in moral theory would provide (mainly because Security Act tend to be more Kumm's discussed in moral philosophy).46 it would be yet Kamm argues Yet it seems impermissible by Kamm is the Grenade bystander would be unless we explode a grenade that will kill an innocent a dis abler." He argues that using people as a means is not The example was first used by Philippa Foot. 163. to this moral puzzle by the Aviation Intuitively constraint here. deontological rather. 'you are only free to respond to the needs of some if you have a right to use the necessary means' (205). I wonder if it in substance abolishes the distinction between enablers and disablers and introduces a new. 150. discusses this case and modifies his understanding of disablers to the effect that while the one 'seems to be a disabler since you could save the five perfectly well if he were not in your way' (204). the on the street makes the otherwise permissible to kill hirn. One difference them is that in the Aviation are part of the weapon. There are more unresolved unobjectionable nothing always ways. introduced Again. one must of intending who are threats's'? I cannot resolve the issue real life scenarios complex that stresses that for the doctrine between the distinction allow 'for the permissibility defense against even moral innocents resolution envisaged the issue. which is closely related to harm to the guilty and in self. 46 Kamm. I wonder whether the real reason of balancing in the Aviation Security Act case is not that the are disablers. 45 Walen. n 33 above. parallel between between There is a remarkable Act case. 151. 2007) 22. it is not clear that it is always permissible balancing resort to consequentialist in the case of disablers. evaluatingwhich is beyond the scope of this essay. foreseeing that he will run over and kill one person on the road. the passengers for the permissibility innocent Kamm passengers the Grenade case and the Aviation Security Security Act case. and 'the means of saving the five includes getting to them. a person is rushing to the hospital to save five. more complex principle. but rather that they are part of the weapon. impermissible to explode the grenade. see her Moral Dilemmas (Oxford: OUP. 44 15 . Intricate Ethics (Oxford: OUP. Kamm. Kumm problems with the prohibition enablers in situations outside killing. of double effect.e> Another bystander case Case: a runaway trolley will kill five people as a side effect. 47 ibid. but I tend to think that as disablers but rather in to use people as that there is to aid and the reason for this lies not in the role of the passengers the fact that the passengers are part of the weapon. While it seems to be uncontroversial that it is to to kill enablers.Kai Moller The Right to Lift Between Absolute and Proportional Protection might be even more indeed impermissible complex. 203. n 40 above.or otherus with a as the one than those there is no enablers and disablers. to have any plausibility. The formulation used here derives from F. Very often the state uses people as means in is aware of this and acknowledges a passer-by but that wrong with requiring absolutely prohibited to suffer minor inconveniences 'the distinction between enablers another person in serious distress. While this reasoning may be correct in explaining the correct outcome of the case. and that aspect of the means is what would kill the one' (207).t" The one person on the road is a disabler: his claim would have to be that his presence rescue action impermissible. In the Car Case. 48 Kumm.

But those gains are at best relatively modest and are hard to justify even in light of the proportionality principle. and the only way to prevent the bomb from going off and killing many people is to torture the terrorist in order to make him reveal the whereabouts of the bomb. 143. So in this light we might say. Walen. 158-164. 49 50 16 . In the notorious Jakob von Metzler case. discussed above. Under the threat. Take the case of a terrorist plausibly threatening to blow up a city unless a specific innocent and nonthreatening person is tortured or killed. n 33 above. Similar problems arise with regard to taxation which uses the taxpayers as means. By way of contrast. Kamm. the suspect confessed. Kumm explains.>' The most widely discussed case in this context is the imaginary 'ticking bomb case': the police have caught a terrorist who has hidden a bomb in the centre of a city.50 My point is not that Kumm's approach is wrong. requiring a passer-by to make a phone call to request an ambulance in order to save a person who has just suffered a heart attack seems permissible in spite of the fact that this also uses the passer-by as a means. at least initially. that our focus. rather than completely outruling the use of enablers. Similarly.in the widely discussed transplant case. Kumm applies his approach to torture cases. and as it happens. but I want to point to one aspect in which generalising it leads to other puzzles.i? killing one healthy person in order to use his organs to save five other persons would be impermissible. to my mind convincingly. Here is a further puzzle. with Kumm. they would certainly be entirely impermissible under the 'changed baseline' approach. German case at hand. and this is prohibited. should not be on the numbers of people we could save by torturing the terrorist. or enablers. there is a real and. it should be on the special relationship between the terrorist and the victims. Torturing or killing this person would mean to use him as an enabler. and this is often justified by reference to certain assumed gains compared to the alternative policy of a professional army. n 40 above. 52 ibid. In countries with compulsory military service. But it often seems to be the case that we use people in ways which are much more intrusive than requiring them to make phone calls. which might or might not be resolvable.13/2010 disablers completely changes the baseline to be used to assess rights infringements'. again. This brings us back to Nozick's concerns about the welfare state and his theory of rights. n 35 above. the police had threatened a suspect accused of kidnapping a young boy with torture (and was prepared to carry out that threat) should he not reveal the whereabouts of his victim who was erroneously believed to be still alive. that the distinction between enablers and disablers changes the baseline. 52 Rather. 51 Kumm. every citizen must for a certain time forgo his freedom of profession in order to serve in the army and risk his life. 160. to otherwise legitimate state goals. 187-188. and this relationship is independent of whether there are one or one million victims. So it might be helpful to focus on a case with only one victim.

17 . I think that most would agree (although I acknowledge So for this scenario I believe that Kumm responsibility of the kidnapper constraint is correct to say that this would require further argument) that it is permissible for the father to torture because of the personal for the boy there is no against torturing the kidnapper. according to Kumm. ibid. to do as a private person. Let us modify the example. Put differently: I tend to think that if it were permissible to torture the kidnapper in the name of the state in the Jakob von Metzler case.one of the terrible things that torture does is that it coerces people torturer . 161. Kumm is aware of the fact that there might be good policy reasons for prohibiting extreme constraint suffering symbolic concerns. deontological of his son. including the kidnapper's. to a watertight argument because to torture the kidnapper of lives.x' torture in all cases. 53 54 ibid. my intuition is that there is an additional constraint at work here which leads to everyone's. such as reasons relating to the slippery slope arguments. as opposed to the status of everyone. There is no time left to call the police. as inviolable requiring that torture be impermissible if carried out (or authorised) by the state. I repeat that I do not claim to resolve the issue here but only point out some of the puzzles in the area of de ontological constraints constraints. and practical or is therefore whether there is a deontological of the victim. and my intuition is that this is too high a price to pay for the protection catastrophic come close permissibility scenarios (eg a nuclear bomb in London).) inviolability: human beings would become beings whom the state may sometimes permissibly torture.the deontological constraint is. except maybe in Again. and the only way for the father to save his son is to torture the kidnapper in order to make him reveal the whereabouts the kidnapper. only in terms of institutional such as slippery slope arguments.Kai Moller The Right to Lift Between Absolute and Proportional Protection As a preliminary point. neutralised because of the personal responsibility of the kidnapper for the threat. and this he denies: while it is true that the to commit self-betrayal in order to serve the purposes of the kidnapper is used as a means . this does not even could reply that the and one affects only the status of kidnappers comparable aggressors.>' I believe that this is partly but maybe not entirely correct. There may be a and I do not think that this or policy considerations status what is right when the kidnapper and what is permissible difference is explainable difference between what is permissible to do to a person in the name of the state. It appears to be a possibility that deontological apply in different ways to private persons and the state. 159. His question against torture in this case. But I am not sure about is in the custody of the police. Rather. Suppose that the kidnapper is not captured by the police but by the father of the boy. this would affect everyone's (and not only kidnappers.

nonthreatening persons altogether. as I pointed out above. inviolability is not an all-or-nothing concept. such as in the one envisaged by the Aviation Security Act case. This conclusion will leave many opponents of state-conducted killings unsatisfied because they want to stop the state from engaging in the business of killing innocent. persons can be more or less inviolable. But they cannot be extended to cover all cases of killing innocents. It is therefore correct to say that the right to life is sometimes absolute or near-absolute. But what can be concluded is that while maybe not absolute. I cannot think at the moment of any realistic case where the state would seriously consider killing enablers (one would have to think of examples such as terrorists threatening to commit a devastating attack unless one innocent person is killed). In spite of the many open questions. including our reasoning about what human rights require. 18 . I do however think that there are at least some scenarios where it is permissible to kill innocent disablers. the right to life certainly offers to enablers more than simply proportional protection: enablers cannot justifiably be killed on the ground that this leads to a reduction in the overall number of people getting killed. This does not necessarily amount to an absolute right because.13/2010 VI. For the reasons given above I am not convinced that consequentalist balancing is always permissible in the case of disablers. The fact that such cases are not realistic in the sense that no state would comply with such requests shows that deontological constraints have a firm place in our moral and legal reasoning. I think that Kumm's and Walen's distinction between enablers and disablers points to one important conclusion: the status of innocent and non-threatening persons as inviolable requires that they not be killed when killing them would involve using them as a means (as enablers).