Regina v. Dudley & Stephens: Morality, Murder, and the Criminal Law
July 12, 2009
The Regina v. Dudley & Stephens case is one of the most important cases in English common law history regarding the relationship between criminal law and morality. The case was decided in 1884 in an English court (Queen’s Bench Division, 14 Q.B.D. 274). The basic run-down for our purposes is that three men (including defendants Dudley and Stephens) and a young boy were stranded at sea on a small emergency boat after they were forced to abandon their ship because of a storm. On the 18th day they were stranded at sea, having no food for the previous seven days and no water for the previous five, one of the men (Dudley) thought it a good idea to draw straws to decide which man should give up his life for the sustenance of the others on the raft (i.e. cannibalism). As disturbing as that is, Stephens nevertheless agreed to the “drawing,” but the third man refused. Dudley and Stephens noticed that the boy was rather sickly and did not have a family like they did, so they decided that rather than sacrifice the life of a healthy grown man with a family, it would be more prudent to kill the boy and eat him while they awaited their unlikely rescue.
The court’s recitation of the facts states “the boy was then lying at the bottom of the boat quite helpless and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to his being killed. [Dudley] offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved.  Dudley, with the assent of Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there; … the three men fed upon the body and blood of the boy for four days; … on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners were rescued…”
After their rescue, Dudley and Stephens were promptly brought back to England to face a trial for the charge of murder. The other man apparently dissented from the killing but participated in the eating of the boy anyway (I liken this to President George W. Bush’s policy on embryonic stem cell research funding, wherein the federal government decided not to fund future embryonic stem cell research that destroyed human life, but nevertheless approved of the use of embryonic stem cells that resulted from already-destroyed human embryos).
Pause and ask yourself: would you find these men guilty of murder? You and I weren’t in the killers’ position. We don’t truly understand the temptation they faced. Who are we to judge these starving, stranded men? On the other hand, perhaps the ends don’t justify the means and we all know that we can’t kill an innocent person for food, no matter the circumstances. Can we apply our consciences and moral understanding to men who suffered in a way we cannot understand?
The court in this case found the men guilty of murder, unapologetically applying its moral understanding of murder that the court apparently derived from nature itself.
Here is the court’s opinion and moral reasoning in relevant part:
Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.” But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one’s life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man’s duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children . . . these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others, from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one’s life.
It would be a very easy and cheap display of commonplace learning to quote from Greek and Latin authors . . . passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be “No” –
. . . There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment; and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it.
It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners’ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder.
The court then sentenced the prisoners to death, but the Crown commuted the punishment to six months’ imprisonment (note that the court stated that its job was to declare the law, and it left “mercy” to those in power to distribute it, akin to a presidential pardon in the United States; the court all but asked the Crown to grant such mercy in this case, and the Crown obliged with the mercy that the court was itself constrained from granting within that system).
The court’s reasoning is persuasive. Law must have some relationship to morality to justify its obligatory power. If the law is just whatever we humans say it is (without regard to morality), there is no “right answer” either way because the law is what “we” (as legislators or judges) say it is, which means there is no comprehensive standard of justice that would apply to the decision. If you were to argue that the decision in this case is “unjust,” you would be applying some unspoken transcendent standard of justice (a moral concept) to the law, because you have expectations that the law should live up to some standard you hold above the human law (even if that standard is logic, efficiency, social contract, etc., because you deem that standard to be obligatory on the judicial decision-maker for its own sake).
Thus, arguing against the result in this case on the basis that morality should not inform our idea of murder practically demonstrates your own perception that law and morality must be related somehow, and that unjust or immoral decisions must be avoided (even if you paradoxically deem it “unjust” for a court to decide moral questions). It is indeed a moral fact that harsh and tempting circumstances may lessen the severity of a just punishment, but cannot eradicate guilt. (We see this in the law of manslaughter v. murder; homicide is criminal despite strong temptation, though the strength of the temptation may lessen the severity of warranted punishment.) Put another way, one cannot do something inherently evil (like killing a vulnerable, innocent person) for a “good reason” and expect the law not to apply.
Before you make up your mind about this case, recognize that the reasoning therein raises some other questions pertinent today, and those questions might cause you to re-examine your assumptions with respect to criminal law in general:
- What does this case assume about the role of a judge in setting legal and social policy? (i.e., should criminal law judges declare what the law is in letter, what the law is in nature, or what the law should be?)
- What does this case assume about the role of “empathy” in judging? (For example, President Obama says he seeks empathy from judicial appointees, as noted in his vote against Justice Roberts a few years ago; but is the use of empathy appropriate in our British-based judicial process?)
- What does this case say about the typical “excuse” arguments in favor of mercy killings, euthanasia, and legalized abortion based on exceptional circumstance (circumstances like excessive suffering, rape, incest, life of the mother in danger, the danger of back-alley abortions, etc.)?
- Speaking of abortion–the judge in the above case noted that where the “necessity justification principle” is indulged, it ”leaves to him [or her] who is to profit by it to determine the necessity which will justify him [or her] in deliberately taking another’s life,” and that choice will involve the sacrifice of “the weakest, the youngest, the most unresisting.” Interesting, if not prophetic…
- What does this case imply about the contemporary American notion of a severe split between law and morality because of the “separation of church and state”? Can one “legislate morality” (or decide moral questions from the bench)? Can one ever avoid a moral judgment when deciding the guilt and punishment of a criminal defendant?
- Jurisdictionally, what law applied to the men stranded in the boat out on the ocean? Was it the law of England, the law of the seas, or perhaps a more universal law (like morality, and the moral law against murder) that the court deemed to apply everywhere?
- Finally, this case can even speak to each of us personally, as we all like to use our personal situation and our personal feelings (including strong desires/temptations) to justify our actions to ourselves and to others. Are our personal excuses actually “moral” just because it seems “necessary” to us? Do we intuitively believe in a “necessity” excuse for our other moral dilemmas in life?
This case provides a lot to chew on. Feel free to post comments or ask questions.
[Update: this article, which is a rough translation from Japanese to English, posits an interesting theory that Richard Parker, the name of the Tiger in the movie Life of Pi, is named after the boy Richard Parker who died at the hands of Dudley and Stephens.]