Berkeley Journal of Criminal Law Vol 18:2, Fall 2013
87 Pages Posted: 17 May 2014 Last revised: 20 May 2014
Date Written: January 30, 2013
This article proposes the principle of double effect as the foundation for a cogent alternative to the Model Penal Code’s controversial defenses to justified and excused homicide of the innocent. Proponents of the principle of double effect recognize that persons may sometimes find themselves burdened with unavoidable choices where all possible outcomes involve harmful and tragic consequences for themselves or others. In such circumstances, its proponents assert that at times it is permissible to cause foreseeable, but unintentional, taking of innocent human life. Double effect thus acknowledges, in a way that traditional legal theory does not, that sometimes the tragic “taking of innocent life” may be justified. At the same time, however, the principle of double effect conforms to the traditional view in asserting that any intentional, i.e., purposeful, taking of innocent life, despite its utilitarian benefit, can never be justified and no law or defense should provide otherwise.Part I of this article surveys important historical and legal precedents against the killing of innocents, especially as considered in the seminal lifeboat cases Regina v. Dudley and Stephens and United States v. Holmes; Part II reviews and critiques the Model Penal Code’s account of justified and excused killing s of innocents; and, Part III articulates and defends a limited “double effect” legal defense to the killing of innocents.
Keywords: Criminal law, Excuse, Duress, Justification, Model Penal Code, Killing of the innocent, the Principle of Double Effect, Trolley Problem
Suggested Citation: Suggested Citation
Lyons, Edward C., Slaughter of the Innocents: Justification, Excuse, and the Principle of Double Effect (January 30, 2013). Berkeley Journal of Criminal Law Vol 18:2, Fall 2013. Available at SSRN: https://ssrn.com/abstract=2435639