Coping with Moral Dilemmas in German Criminal Law Theory and Justice: Classical Cases and Modern Variants

Dilemma scenarios have always been among the most common problems of moral philosophy and criminal law theory. One only has to contemplate the Plank of Carneades, the classic thought experiment whereby two shipwrecked people's only hope of rescue is a floating board that can only be occupied by one person. Other scenarios are Welzel's switchman case and the well-known Trolley Problem. In most of the debated cases the death of one or more people is absolutely unavoidable. The protagonists do not cause the situation but are fated to come into conflict. The focus of this article is on one recent and one future variant. First, the prioritization of medical aid (also known as "triage") is the subject of intense debate, because the COVID-19 pandemic posed a permanent risk of a temporary collapse in the health system in several countries. Situations had arisen whereby some patients can no longer be treated owing to lack of capacity. It can be asked whether a decision to treat may be based on which patients have a better chance of survival, whether reckless previous behaviour may play a role, and whether a treatment, once started, may be discontinued in favour of another. Second, dilemma scenarios are also one of the last remaining (largely unresolved) legal difficulties of autonomous vehicles. Never before has a machine been given the power to determine the life or death of human beings. Even though the automotive industry promises that such situations will hardly ever occur, the problem could prove to be a tangible obstacle to acceptance and innovation. The article offers solutions for those distinct scenarios, but it is also intended to demonstrate the underlying legal concepts of German law: namely, the tripartite analysis of criminal law and the idea of human dignity as a fundamental principle of the German constitution.