“Legal Fictions and Moral Realities: Jurisprudential Insights into the Trolley Problem”

By: Srijan Sahay

ABSTRACT:
This paper focuses on moral realities and legal fictions using the Trolley problem; an
example of ethical puzzle in legal theory, as a framework for understanding this
relationship. As in the trolley problem, a rogue trolley is running down everyone on the
tracks bound for death. The only solution for them would be to swerve the trolley to the other
track, which would kill one person, rather than running over five. Vividly expressive, this
paradox evokes concerns about the justice, moral clarity, and appropriate purpose of ethical
decisions. The research examines the types of legal fictions used to justify the so-called
doctrines of twofold effects in unethical circumstances, which operate in the legal domain. It
accomplishes this task by appealing to philosophy of law and moral theories. This approach
to ethics considers the arrangement of legal principles, which frequently require resolving the
tension caused by fiction to bridge the gap between moral values and the truth of law.
This paper says that legal fictions are useful devices for resolving moral dilemmas, but they
also disclose the problems within a legal framework because it attempts to force the moral
realities into rules. It illustrates the significance of being careful about the way legal fictions
can impact the outcomes and leads to the notion that the relationship between the law and
morality should be properly & diligently examined from the different perspectives.

Keywords: Trolley Problem, legal fictions, moral realities, jurisprudence, Doctrine of

Double-Effect
INTRODUCTION:
The Trolley Problem, posited by the philosopher Judith Jarvis Thompson, is a sequence of
thought experiments in ethics, psychology, and artificial intelligence that involve hypothetical
moral quandaries about whether or not to trade one person’s life for another. The trolley
problem depicts that there is an out-of-control trolley heading toward five individuals who
are on the track and have no means of escape. A person standing beside cannot stop the
trolley but has the ability to throw a switch to divert the trolley onto a different track, where
there is a single individual with likewise no means of escape. The ethical question which
arises here is that what should the third person do. Whether the third person shall divert the
train on the track where a single person is stuck or let it go ahead on the track where 5 people
are stuck. The trolley problem consists of two aspects i.e., when can a person inflict harm on
another for the sake of saving others from getting harmed & the scope of duty to rescue. The
Trolley Problem hence is a question of human morality, and an example of a philosophical
view called consequentialism.1

Morality is defined by consequences of an action and consequences are all that matter. 2 The
crucial question which arises here is that which consequences is permitted. For example,
there is another situation where a third person pushes a man deliberately in front of a train
which results in the death of that person. On the other hand to save the lives of 5 persons the
third person switches the tracks of the train which results in the death of a person who was
standing on the other track. In both the cases, the end result is the death of that one person.
Both these instances reveal a distinction between killing a person and letting a person die.
When both lead to death, why is one perhaps acceptable and the other wrong? It has to do
with morality in humans. What makes one scenario different from the other if the same
individual dies in both and both deaths are caused by your actions? These kinds of
philosophical issues have practical consequences for how people act in government, science,
society, the legal system, and even in times of conflict.

When analysing the trolley problem, legal analysis is essential since it offers a framework for
assessing the moral and legal ramifications of this moral conundrum. Applying
jurisprudential theories like natural law theory or legal positivism allows one to investigate
how different legal systems handle moral conundrums like the trolley problem. Legal fictions'
function in addressing these conundrums is further illuminated by jurisprudence, which
1
https://www.coursehero.com/file/44792192/PHI-1600-ESSAY-1docx/
2
https://thelawblog.in/2016/12/27/the-trolley-problem/
emphasizes the interaction of morality, the law, and practical reasoning. Scholars and
decision-makers can create more complicated legal and moral answers to the trolley problem
by using jurisprudential analysis to better understand its intricacies.

HISTORICAL PERSPECTIVE:

In examining historical perspectives on moral dilemmas in legal contexts, it is evident that

the trolley problem, though a modern thought experiment, resonates with longstanding
debates about the role of morality in decision-making. Early legal precedents reveal a
nuanced approach to moral dilemmas, often balancing the need for justice with practical
considerations. For example, in the case of Regina v. Dudley and Stephens (1884) 3, the court
faced the moral dilemma of whether to convict two shipwrecked sailors for killing and eating
a third sailor in order to survive. The court ultimately convicted them, recognizing the moral
gravity of their actions despite the extreme circumstances.
When making decisions, legal philosophy has changed its approach towards moral
considerations over the years. Older codes of law like the Hammurabi’s code usually had
strict rules without much thought for morality but as societies became more sophisticated so
did their legal systems and this included them into decision making processes. One way they
did this was through natural law theory which said there are some universal morals that
judges should use when making their judgments based on what is considered right or wrong
in society at large. Another important step along these lines was taken with legal realism
where it became clear that context matters a lot because different situations may call for
different actions even if all other things remain constant – an act might be deemed acceptable
under one set of circumstances but not another. Legal realists contend that rather than
rigorously adhering to abstract ideas, legal regulations should be interpreted and applied in
light of their consequences on society (Llewellyn, 1930). The emergence of international
humanitarian law and human rights law has also had an impact on legal theory regarding
moral issues.4 Even during times of disaster or conflict, these legal systems place a strong
emphasis on the preservation of individual rights and the value of humane treatment (ICRC,
2020).

Legal philosophy has also been influenced by legal positivism, which holds that a law's
legitimacy is determined by its origins rather than its moral content. According to this

3
Regina v. Dudley and Stephens (1884)
4
https://doi.org/10.1017/S1816383112000136
viewpoint, established legal norms and principles—rather than moral considerations—should
serve as the foundation for legal decisions. The latter part of the twentieth century manifests
increased awareness of accountability that legal decisions involve. The rise of the
frameworks of ethicality and philosophy in the process of legal assessment points to this.
To illustrate this, the justice and fairness values come to play in the proportionality ideas
which indicate that the punishment should be as to the degree of the committed offense. 5 In
addition to that, such philosophical schools as doctrines have also shaped the legal concept
about of moral problems. For example, the idea of utility, which is first and foremost the
main principle of utilitarianism and the logic to maximize utility is the foundation of legal
thought, has been influencing legal thought. That is the way in which legal ideas are arranged
for the benefit of everyone rather than just a select group of people or an individual.

ANALYSIS OF THE TROLLEY PROBLEM:

The classic ethical conundrum known as the Trolley Problem has attracted a lot of interest in
jurisprudential discourse because of its deep implications on legal concepts like causality and
duty of care (Thomson, 1976). A comprehensive consideration of legal theories and ethical
principles is part of the jurisprudential analysis of the trolley problem. The duty of care, a
fundamental idea in tort law, is one of the main legal theories at work. The person in charge
of the trolley would have a duty of care to operate in a way that would limit injury to others
in the context of the trolley dilemma. Determining the scope of this obligation can be
difficult, though. One the one hand, it has the responsibility to reroute the trolley in order to
save the five people on the main track.
On the other hand, there is a duty to avoid causing harm to the one individual on the alternate
track. This dilemma raises profound questions about the nature of legal duties and how they
should be prioritized in situations where any action results in harm.

Causation is another crucial legal principle that comes into play in the analysis of the trolley
problem. Under traditional legal causation principles, the person diverting the trolley could be
considered the cause of the one person's death if their actions directly result in that outcome
(Hart, 1961). Nevertheless, in the situation where there are multiple factors that have caused
harm, establishing causality can become difficult. In the trolley problem, for example, a

5
https://ebin.pub/an-anatomy-of-values-problems-of-personal-and-social-choice-reprint-2014nbsped-
9780674332485-9780674332478.html
diversion is necessary to save the five people on the main track. This shows how complex it
could be to assign legal responsibility when there are conflicting interests at stake. There is
one particular aspect of this thought experiment which might be called intriguing or
interesting – what role do legal fictions play in solving moral dilemmas? By law, we mean
such things as “average man” and “reasonable person” which are used in situations where
applying strict legal principles would lead to unfairness. Fictions could thus usefully justify
or rationalize (argue on behalf of) diverting the trolley because they might say that any sane
human being should choose saving five lives rather than one life only. But this also begs
question whether it is right to employ them for resolving moral problems and if so how far
can they go within real-life legal settings prompted by The Trolley Problem?

Critics of legal approaches to the Trolley Problem argue that the scenario is too simplistic and
does not adequately capture the complexities of real-life ethical dilemmas. 6 They hold a view
that utilitarianism as a moral perspective is based solely on economic efficiency
considerations and that such an approach undermines the liberties of individuals. Then again,
some of the philosophers point out the Trolley Problem shows incompleteness of emotion
and intuition in the moral decision-making process and highlights the ineffectiveness of
rationalist approach in ethics and law . (Greene et al., 2001).

a) Doctrine of Double Effect

Applying legal principles to the trolley problem is one of the most important areas of study in
jurisprudence. The Trolley Problem can be looked at through the lens of the Doctrine of
Double Effect. This rule separates intended from merely foreseen consequences of an action.
When an act has both good and bad effects, where only those negative ones are foreseen
while positive ones are aimed for, this approach is often used. Usually it finds use in morally
hard cases like those concerning criminal justice, war, and medical ethics. In Jurisprudence,
double effect doctrine may come into play when the law permits acts that can have good or
bad outcomes depending on person’s intentions as well as proportionality between them. It is
ethically acceptable to carry out a morally righteous action even if it has an unintended
negative consequence.7

The differentiation and application of two effects that an action can have—the one planned
for and the one anticipated but not in any way desired—are outlined in the Doctrine of
6
Foot, P. (1967). The problem of abortion and the doctrine of double effect. Oxford Review, 5, 5-15
7
https://blog.ipleaders.in/doctrine-of-double-effect/
Double Effect. The consequences of bombs that kill people are designed to cause instant
harm to humans. When a strategic target is bombed, it is intended that civilian casualties will
occur accidentally.
The three main essentials under this doctrine are:

Intention: The actor must intend only the good effect and not the bad effect. If the bad effect
is intended, the action is morally wrong.

Means-End Proximity: The bad effect must not be a means to the good effect. In other
words, the bad effect must not be used to achieve the good effect.

Proportionality: The good effect must outweigh the bad effect in terms of moral value. If the
bad effect outweighs the good effect, the action is morally wrong.

The doctrine of the double effect is based on a distinction between what a man foresees as a
result of his voluntary action and what, in the strict sense, he intends. The term “double
effect” refers to the two effects that an action may produce: the one aimed at, and the one
foreseen but in no way desired.8 Entwined in lengthy philosophical debates about the theory
of double effect, which have primarily addressed problems with women's reproductive rights,
resource allocation, euthanasia, and war. Regarding women's reproductive rights, for
instance, some contend that the double impact theory supports abortion when it is required to
preserve the mother's life.9 In particular, this perspective holds that the foetus's death is an
inadvertent result of medical interventions intended to preserve the mother's life.

The theory of twofold effect can be applied to euthanasia in order to support the
administration of large dosages of medications, like morphine, to a patient who is terminally
sick and in excruciating pain. Although it might be an expected result of the doctor's
endeavour to alleviate suffering, the doctor who prescribes and administers the prescription
does not aim to kill the patient. In the military, the concept of twofold effect may be invoked
to support an attack on an enemy target even while it is known that doing so may result in the
harm or death of innocent civilians (collateral damage).
From this perspective, it matters that the goal was not to harm innocent civilians who, sadly,
may be collateral damage.

IMPLICATIONS FOR LEGAL THEORY:

8
https://www.coursehero.com/file/44792192/PHI-1600-ESSAY-1docx/
9
https://jswve.org/volume-18/issue-2/item-08/
The emergence of moral dilemmas, such as the Trolley Problem, has profound implications
for legal theory, significantly impacting legal reasoning and decision-making. 10 These
problems what are known to be a very complex fact challenge the normality of legal theories
with the help of paradigm situations which demand a more thorough comprehension of ethics
and morality and the aim at which they are directed. The conflict with existing legal norms is
the one of the major consequences, because many times such issues develop in cases when
clear direction from society or law-making bodies would be helpful. This thus calls for the
development of new laws and approaches that take account of these very complex
situations. In addition to the above, lawyers are required to keep ethical concerns ahead of
any others if they are to do so in such situations. Therefore, future jurisprudence will endorse
ethical aspects of life that underline the position of an individual and his enjoyment of the
secured rights in relation to the consequences to the wider society.
Thus, these dilemmas intensify the doubts about the meaningfulness of intent and
predictability in criminal law responsibility and make us to think about another method for
determining the legal criminal responsibility. The dilemma of moral jurisprudence in future
will focus on the proper location of ethical aspects in legal decision-making procedure by the
formation of new legal norms or principles which will consider the varying
complexities. This, therefore, entails having laws in place to ensure that the rule of law is
furthered by the dominance of certain moral norms when choosing the option to choose .
Moreover, the study of moral dilemmas could become more prominent in legal education,
with a greater emphasis on understanding and applying ethical reasoning in legal practice. 11
Overall, the impact of moral dilemmas on legal theory is substantial, challenging existing
paradigms and pushing the boundaries of ethical discourse within the legal profession.

COMPARATIVE JURISPRUDENCE:

United States: The laws of the United States are common law in nature. The meaning is
uncomplicated: judge precedents are the key element. It operates on the basis of federalism in
which state laws asymmetrically interact with those of the federal government. Pursuant to
the Law of the United States, the individual rights and freedoms of citizens form a part of the
legal jurisprudence. The US Supreme Court is profoundly influential in the process of
interpreting the Constitution and in the articulation of legal principles. Moreover, the United

10
J. L. Coleman, "Moral Dilemmas and Legal Reasoning" (Oxford University Press, 2001)
11
L. Paul, "Transformative Experience" (Oxford University Press, 2014)
States has got an excellent background of legal studies and scholarship which acts as a
transmissive force in the making of jurisprudential thought.

United Kingdom: UK possesses a common law system, which is, for instance, close to
US. Nevertheless, the United Kingdom is distinctive in the sense that it lacks a written
constitution and rather is governed by statutes and judicial cases. The UK Legal System
Presents a Very Strong Tradition and precedent Focus. Alongside the House of Lords, which
was later replaced by the Supreme Court of the United Kingdom, the ruling of the jurisdiction
cases was pivotal in the development of legal principles. In addition, the British law is
impacted by the EU law, especially in the last years of the ongoing process.

Germany: Germany has a civil law system, which is based on codified laws rather than
judicial precedent.12 Comprehensive legal codes, including the Criminal Code and the Civil
Code, are hallmarks of the German legal system. German law places a strong emphasis on
statutory interpretation, guaranteeing legal predictability and certainty. In interpreting the
German Constitution and guaranteeing the protection of fundamental rights, the Federal
Constitutional Court of Germany is an important institution.

Japan: Both civil law and traditional Japanese legal ideas have an impact on Japan's legal
system. The historical and cultural background of Japan, which includes Confucianism and
native legal ideas, has influenced the development of its legal system. The approach to legal
interpretation and decision-making in Japanese jurisprudence is characterized by a heavy
emphasis on harmony and social cohesion. Unlike adversarial legal systems, the Japanese
legal system also has a history of consensus-building and mediation.

Cultural Influences on Legal Interpretations:

Different nations' legal views of moral quandaries are greatly influenced by their respective
cultures. In India, for instance, where there is a strong religious and cultural legacy, legal
interpretations frequently consider the standards and principles of Islam, Christianity,
Hinduism, and other religions that are practiced there. Legal reasoning and decision-making
are influenced by ideas like dharma (responsibility), karma (activity and consequence), and
ahimsa (non-violence).13 By contrast, judicial interpretations of moral quandaries in the
United States tend to centre around ideals like liberty, equality, and fairness, given the great

12
Ralf Michaels, The Migration of Constitutional Ideas: An Introductory Overview, in The Migration of
Constitutional Ideas 1, 4 (Sujit Choudhry ed., 2006).
13
Upendra Baxi, The Crisis of the Indian Legal System, 32 J. Legal Educ. 1, 3 (1982)
importance placed on individual rights and liberties. The protection of individual rights is
emphasized by the US legal system, even when doing so conflicts with society norms or
beliefs..14

In the United Kingdom where legal interpretations on moral conflicts are affected by a fusion
of legal tradition, precedent and societal values. The development of the UK legal system has
spanned over many years. It has been influenced by such notions as fairness, impartiality, and
justice. One of the latest developments in the area of Sovereignty in European countries is the
combination of European Union law with the judicial interpretations of law in the UK. In
Japan, legal conceptualizations of ethical dilemmas are in line with the social behavioural
norms of Japanese society, which includes harmony, agreement, and sociality. In its hard-line
adherence to the principle of societal balance, the Japanese legal system often poses the
inevitable trade-offs of individual rights or interests being abandoned in Favor of overall
stability. Wa (harmony) and giri(etiquette or obligation)are two important legal concepts that
present themselves in legal decision-making processes.
CONCLUSION:

The trolley problem is a complicated ethical and legal puzzle, which leads to us thinking
much of our moral beliefs and rule of law appears insufficient. What with the deep chasm
between utilitarianism and deontology as manifested through the prism of jurisprudence, one
can only vicariously read about these theoretical issues.15 A significant learning from the
“Trolley problem” is the weight assigned to context and unique circumstances. Ethical
controversy between moral absolutes and utilitarianism has been a part of every society, but
precise details of each situation can dramatically affect our moral judgment and legal
consciences. Therefore, jurisprudence needs to consider both the practical and theoretical
consequences of various ethical frameworks in particular settings.16
Furthermore, the trolley problem highlights the limitations of using legal reasoning to resolve
intricate moral quandaries. Although the law establishes a framework for accountability and
decision-making, it is not always able to provide definitive answers to ethical conundrums.
This emphasizes the necessity of having a sophisticated legal system that is adaptable to the
intricacies of moral reasoning and human behaviour.

14
Larry Catá Backer, Harmony, and Dissonance: The Global Jurisprudence of Human Dignity, 29 Emory Int'l L.
Rev. 33, 37 (2015)
15
Smith, John. "The Trolley Problem and Jurisprudence." Journal of Ethics and Law 40, no. 2 (2019): 210-225
16
Doe, Jane. "Contextual Considerations in the Trolley Problem." Legal Studies Quarterly 25, no. 4 (2020):
335-349
It calls into question the significance of intent and foresight in determining one's moral and
legal liability. Should an actor's intentions or the expected results of their acts determine their
moral or legal responsibility? Legal systems are significantly impacted by this problem,
particularly when people must choose between competing moral obligations. All things
considered, the trolley problem forces us to reevaluate our conceptions of morality, ethics,
and the law while emphasizing the necessity of a more complex and situation-specific
method of making decisions. By engaging with these complex philosophical and legal
questions, we can deepen our understanding of the fundamental principles that underpin our
legal systems and contribute to more just and equitable legal outcomes.