What is intriguing about the public's admiration of Dudley and condonation of his act is the heroic role they cast him in. He is a decisive and fearless Captain who bravely saves drowning 17-year-old Portuguese runaways, fearlessly remains in the sinking yacht to retrieve supplies, and boldly beats away sharks. In this light, Dudley had "done what a man must do. Confronted by the dictates of necessity, he had risen to the occasion and steeled himself to the terrible act of killing the boy when his companions shrank from the deed. He had fulfilled a captain's role" (85). It is precisely this idea of having done what must be done that is telling of the public conception of the crime. It suggest ultimately a lack of choice. It was the dire conditions that necessitated the act - "the unparalleled extremity to which they were driven" (82). Insofar there is no genuine choice, there is no requisite mens rea. The public ultimately disagrees with Lord Coleridge that there is a higher duty to sacrifice one's life than to preserve it by taking another's.

Presumably, the killing could not be justified on utilitarian grounds of killing one to save three. It might be if there was 100% certainty that three would be saved. Not knowing if feeding on Parker would have sustained the three long enough to be rescued, the lives to the three must be discounted by the probability of being rescued in time. Given the probability of rescue was so low and perhaps the discomfort of choosing to kill without much certainty, a utilitarian calculus does not seem to explain the public's intuitive acceptance of the act.

Further proof that the issue isn't utilitarian balancing, but choice, is the situation where there is certainty in the outcome. Take for example, Sophie's Choice. Assuming we know the Nazi officer will keep his promise, there is still some natural discomfort with choosing who to live and who to let die (condemn to death) even when one life saves more than one life. The discomfort from a hypothetical of choosing one to die for the lives of many lies in the choice. No one wants to make this choice, because there is culpability even in letting someone die. Insofar as people are more comfortable with the Dudley situation, it shows that when one's own life is severely threatened, the fundamental necessity to live obliterates free choice. The implication of one's own life erases choice. Choosing between the lives of two strangers (or one's children where the interests of one's own life is equally represented in them and thus balanced) is still a choice.

The question is how far the interest in one's own life can be pushed and at what point utilitarian balancing comes back in. It is ok for Dudley to kill Parker because the circumstances necessitated it. But what if they had not been rescued and the circumstances again necessitated killing, this time Stephens ("The grim thought must, however, have occurred to Stephens that he, as the weakest, was likely to be next on the menu" (69))? What if Dudley was not rescued until he had killed all three? I certainly get a little uncomfortable with this. This is a much harder question than the actual case which involved in hindsight clear utilitarian support. The situation where Dudley has to kill three forces the issue of which bears more on culpability - freedom of choice at the instant or overall balancing of lives. It will be interesting to see if details on the custom of the sea helps to answer this question.

-- AlexWang - 10 Apr 2012