In the final year of my undergraduate degree I once had a lesson which I remember in a notably way: Our teacher demonstrated the moral and ethical limits of Law and where it seems to reach a dead end.
We discussed the German“Luftsicherheitsgesetz”from 2005, a statute which aims to protect the safety in the air by establishing legal norms in case of hi-jacking, terror attacks and acts of sabotage against the air traffic; including armed force as“ultimaratio”. That legal norm caused huge and controversial discussions among German lawyers, politicians and ethicists.
The central issue is as follows: If there is certainty that a passenger plane, hijacked by terrorists, will be downed over a fully occupied football stadium, should the state then be allowed to fire it off, being aware that dozens of innocent passengers will be facing a certain death?Can one sacrifice a few to save many?
By chance a few months later this ethical dilemma was filmed in the German TV movie “Terror”, which again is based on a play by the German criminal defence lawyer and author Ferdinand von Schirach: A German pilot, who fired off a hijacked plane is on trial being charged with murdering 164 people. What makes the movie special and unique is the fact that the audience witnesses the trial from a “live” perspective and in real time. Before the pronouncement of the judgement television viewers were requested to vote via phone call or SMS; either for an acquittal or a conviction.
There was a clearly outcome among the German TV audience: 86, 9% voted for an acquittal, just 13, 1% argued for a conviction.
During the movie the different parties presented a couple of arguments, all focusing on one main question: Should the state, or in that specific case the pilot, be allowed to act as “a master” about life and death? And if we approve that question, which factors should be taken in consideration when taking that decision?
Is one life more valuable than another? If taking an utilitarian approach, one can say that it is better to kill 164 passengers, who might die anyway, than thousands of people in the stadium, in other words “taking the lesser of two evils”.
此外,飞行员就提出了一个问题whether travelling by plane is, as sad as it may seem, part of the “general risk” of living in our modern society. From a legal point of view this could be discussed as a consent from the passengers in their own killing; there is no doubt about that being an adventurous assumption, but when thinking about it in more detail, there is something to be said for it.
But is it that “easy”? Would this be the right decision?
The problem is not new at all: The German philosopher Hans Welzel already dealt with it in terms of his famous“Weichenstellerfall”: Imagine a freight train is about driving against a fully occupied passenger train by reason of a wrong switch stand. Imagine further a pointsman noticing that and redirecting the freight train on the side track to save the people in the passenger train. Unfortunately he kills a few platelayers on the side track who have been busy with maintenance work. How would you judge his criminal liability? And would you change your mind if a few parameters would be changed, like the American philosopher Judith Jarvis Thomson did, by throwing a fat man in front of the train as being the only chance to stop it? In that modification one has to kill by one´s own hand, and most people wouldn´t do that, whereas most people would act like the pointsman in Welzel´s example. Where would you draw the line in deciding who should be sacrificed for whom and under which circumstances? The question of weighing life against life can occur in many different variations.
Coming back to the previous discussed German statute: The wording of the controvertible legal norm(Art. 24 III Luftsicherheitsgesetz)allows the use of direct force of arms if there is reason for assuming that the plane will be used as a weapon against the passengers and that use of force of arms is the only way of preventing that danger (ultima ratio). The German Constitutional Court adjudged it for not being in line with the German Constitution: It violates the right to life and physical integrity as well as the inviolability of human dignity, which overrules the whole legal system.(Art. 1 I 1 GG: Die Würde des Menschen ist unantastbar.)
In response to Germany´s dark past and the atrocities by the Nazis, the creators of the German Constitution put the protection of human dignity on top of everything and considered it to be the most important value.
No human being should under no circumstances be treated as an object by the state. One can never weigh one life against another. In almost hopeless situations there is the constitution for sending us “on the right path”, not to mention more practical questions: What if the passengers would have been able to get into the cockpit and stop the terrorist? What if the terrorist would have changed his mind?
Regarding to Immanuel Kant´s famous“categorical imperative”as part of his deontology killing the passengers would downgrade them to objects.
“Act only according to that maxim whereby you can, at the same time, will that it should become a universal law”.
According to him human beings should never be treated as an instrument, irrespective of the result. If one supports his assumption and favours the decision from the German Constitutional Court no one is allowed to fire off the plane; one would just abandon all people to their fate.
In the movie the criminal defence lawyer raises an interesting point in his fictitious final speech, related to the discussion, whether it is useful to act in accordance with those principles rather than focusing on the individual case: If we act like Kant and the Constitutional Court, wouldn´t that be like an “invitation” for terrorists? Wouldn´t they choose Germany more than ever for future terror attacks if they know that pilots will never be allowed to fire off a hijacked plane?
Wouldn´t Germany be deprived of its chance of defensiveness? Do you find that argument convincing?
Furthermore the lawyer comes to the conclusion that our world already is at war and therefore it is as simple as cruel: There is no war without victims.
The case and its ethical dilemma is thought-provoking: Law is not just about taking decisions. It is in fact about huge responsibility. We as lawyers should be aware of our fateful practice and the far-reaching verdicts we might render.
In my opinion the behavior of the pilot seems to be the only right thing in that situation and when I was watching the movie I voted for an acquittal. Nevertheless I do sympathize with the idea of human dignity as a “head of everything” in any circumstance and the constitution as the highest rule. But at the same time I am asking myself: Why would it feel so wrong to convict the pilot for murder?