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ustice Springham raises the question of whether the purpose of the

law is to deter (Parry), rehabilitate (Makeover), or retaliate


(Scape). But these are possible purposes of the punishment, not
of the law itself. The purpose of the law, vague and trite as this is, is
to have a better society. The preferred behavior of an individual has
two properties: (a) it is done with the intent of the best overall
outcome (best for society); and (b) the result achieves this intent.
Both are necessary. The law forbids good intentions with bad results
(involuntary manslaughter) and a bad intentions with (by chance)
good results (attempted murder). If everyone satisfied both
properties with every action, the law would be unnecessary.
Justice Bond argues that the lack of consensus on the willfulness of
the killing implies that we are dealing with the open texture of the
law, the area where the applicable law is vague, silent, or
inconsistent. Whereas he follows the path of Foster regarding the
founding of a new social contract, I will appeal to the more basic
criteria of whether the explorers satisfied conditions (a) and (b)
above; i.e., did they both strive for and achieve the best overall
outcome.
The outcome here can be measured in lives. At best all six will
survive, at worst all six will die. There are other considerations,
including suffering (e.g., eating ones own foot), but these do not
illuminate the issue, nor do I believe they change the conclusion (as
argued by Springham, p. 50).
We must first, then, decide what the best possible outcome was, and
then compare that to the intent and result of the defendant. If they
match, then we cannot possibly find him guilty. He made the best

decision, the decision the law would have advocated had it foreseen
this situation.
II
The first question we must answer is, Was an immediate death
necessary? Burnham argues that the five explorers should have
followed Roger Whetmores lead of waiting. What outcome can we
expect from this strategy? At best all will live, but the expert opinion
of the engineers and the doctor indicated that this was unlikely. The
chance of at least once death before rescue was exceedingly high. In
fact the chance of all six explorers dying was quite high. We cannot
now know what would have happened, but it is more than fair to
assume that at least three of the six would have died. Since an
immediate death (through killing) would likely result in only that
one death, it is clearly a better outcome.
III
The next question is whether a player who withdraws from the
lottery is allowed to eat the winner. If we agree that he is, then it
makes sense for Whetmore to withdraw, since he risks no death and
guarantees his survival. But each player will reason the same way,
all will withdraw, and all will die. If we instead agree that a player
who withdraws cannot eat the winner, then that player dies of
starvation, plus another player (one who stays in the lottery) dies
from being killed. Two is fewer than six, so the better outcome
results from preventing withdrawn players from eating.
IV

Now we must ask whether the five explorers should have allowed
Whetmore to excuse himself completely from the game (and not
take part in the eating, as per section III above), or force him to
play, as they did. In the first case, Whetmore dies of starvation, plus
one of the remaining players dies. In the second, only one person
dies. We prefer the latter, since one death is preferable to two.
V
The best outcome, then, is to immediately kill exactly one person,
and not let anyone starve by forcing everyone to play the lottery.
This is precisely what they did. They both aimed for and achieved
the best outcome: the fewest number of deaths. This is clearly the
outcome that we, as a society, and therefore also the law, would
prefer and advocate.
Once the landslide occurred, at least one of the six men was doomed
to die within one month. Once Roger Whetmore lost the roll of the
dice, he was dead, either from starvation or from being killed. At
that point, the other explorers acted to minimize unnecessary
deaths, meaning any deaths other than Whetmores.
Other justices have questioned whether it is right to kill one man to
save five. But they miss the crucial fact that this man was dead
anyway, either that day or a few days later. So its not killing one
man to save five, its killing one man earlier to save five. Justice
Tallys use of the word bargain (p. 58) is taken to an extreme:
were trading off several days of one persons life for many decades
of five peoples lives.
I also want to address the goal of Justice Goad (p. 85) of convicting
the defendants in order to deter similar killings in the future. If this

killing is the best outcome, then we dont want to deter such


killings, we want to encourage them. What is the alternative, to
deter the killing so that even more men may die?
Throughout this case we have argued about the meaning of words
like willful and the intent of the legislature. But we should
remember that the purpose of the law, as a whole, is to do whats
best for society. Without any laws, each ruling would involve a
tortured analysis, like the above, of what outcomes were possible
and which were preferable. Laws are meant to avoid this repeated
reasoning. We dont need to fully examine, in every murder case,
whether murder is good or bad for society. We can decide it once
and for all for common situations. Laws are an optimization. But it
is never wrong to go back to fundamental principles and examine all
possible outcomes, decide which is best, and compare that to the
defendants intent and result. At worst it is a waste of time. In cases
where the law is not helpful, such as this one, it is necessary.

I vote to overturn the conviction and acquit the defendant.