Critical Commentary on Tragic Dilemmas in Criminal Law
The discussion on resolving tragic dilemmas in criminal law is not only intricate but has also persisted for over a century.A situation can be considered a tragic dilemma within the context of criminal law only if it simultaneously meets the following three characteristics:there is no other option but to kill one of the parties involved in the conflict of interest;neither party is responsible for the creation of the dilemma;and the sacrifice of one party must be decided by a third party.The case of the Plank of Carneades and the rescue from torture do not constitute true tragic dilemmas.The solutions to genuine tragic dilemmas,whether through the notion of an extralegal space or the justifiable defense of necessity,are both unsatisfactory.The former approach leads to legal chaos,while the latter distorts the concept and function of responsibility within the criminal law system.Although human life holds the highest value and should not be subjected to mere numerical balancing,if a life is inevitably and irretrievably lost in a very short period,its value is concretely diminished.In the context of a tragic dilemma,there is a possibility of applying defensive necessity.
tragic dilemmaextralegal space theoryemergency justification for exclusion of responsibilitydefensive emergency justificationhuman dignity
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