Law and the Zombie Apocalypse

Characters in post-apocalyptic scenarios often resort to drastic measures to survive, but are they legally justified?  While the law recognizes a defense of necessity, the defense has limits.  In particular, murder (perhaps in the form of cannibalism) cannot be justified by necessity.

In The Walking Dead characters engage in cannibalism to survive.  In the lawless environment of the comics & TV series, this seems justified, but what if law and order were restored?  There is no statute of limitations for murder, and as it turns out, even the necessity of survival does not justify cannibalism.  Note that I’m talking about cannibalism that involves killing a person, not eating someone who died from other causes.

In the law-school-famous* case of R. v Dudley and Stephens, 14 QBD 273 DC (1884), it was held that necessity is not a defense to murder.  In that case, four shipwrecked men adrift in a lifeboat eventually resorted to killing and eating the youngest and weakest of the crew.  The three remaining men were picked up, whereupon they admitted what happened.  Two were charged with and convicted of murder and sentenced to death, though the appellate judge expected mercy, and indeed they were only sentenced to six months imprisonment.  The third survivor, who had been less keen on the scheme, was not charged so that he could be called as a witness, though he had also eaten the victim.

The shipwreck case is analogous to a post-apocalyptic situation in many ways.  The legal system is effectively suspended, the chances of survival are remote, and cannibalism may be a literal necessity.  But while the defense of necessity may excuse trespassing, looting, and a multitude of other sins, murder remains beyond the pale.

* Law school famous is like internet famous but for law students and lawyers.

25 responses to “Law and the Zombie Apocalypse

  1. Where is the line between necessity and self-defense, I wonder.

  2. Are zombies subject to the law? If so, you do not need to shoot them in the head (or otherwise cause severe brain trauma) but merely take out an injunction against them…

  3. I think the important question here is if zombies are considered people.

    Animals kill and eat other animals all the time. But they don’t go to trial.

    The other issue is that, if zombies are people, do they have the mental capacity to stand trial and be held accountable for their actions.

  4. I don’t think the author was talking about responsability of zombies regarding law, but about the people trying to survive in an apocalyptic world full of living deads, like in the comic “The Walking Dead”. Some of them chose to eat people they captured befor, to not die of starvation.

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  6. One must consider the term “Apocalypse” in the zombie scenario. The shipwreck scenario is not analogous to a zombie apocalypse because:
    1) The sailors existence and subsequent crimes at sea were subject to a legitimate and real judiciary.
    2) In a zombie apocalypse, institutions cease to exist and therefore cannot exert judicial authority or scrutiny on “criminals”.

    R. v. Dudley and Stephens is, therefore, more analogous to a lost camper situation wherein crimes are committed because of negligence. I would conclude that Rick and his crew of survivors are not in violation of any crime as no real legal system exists.

    • I think that becomes a question of whether the United States has ceased to exist. I believe the current legal and political science thinking on this is that the Union could only dissolve by agreement of the states. Even if most of the country had died / turned into a zombie and the government no longer really functioned, there is nothing in the Constitution that says the United States ceases to be as a result. There isn’t a minimum population requirement or a requirement that there be a continuous body of elected officials in DC.

      It is true that during a zombie apocalypse there are no active, legitimate institutions operating (though they may still exist in some sense, as above). But the point is that if murder is committed during the zombie apocalypse, it may be punished after the survivors reform society. There may be some war zone cases that address the issue from another direction. For example, a civilian murder in a territory possessed by Country A just before the war, then Country B possess the territory after the war. My guess is that Country B would have jurisdiction to punish the murder. But perhaps not?

      • You make an interesting point. The only evidence of any kind of government or legitimate law enforcement is Rick and a US congressman. Interestingly, the congressman lacks legitimacy as he has turned into a self-appointed constable of sorts who exerts complete disregard for anything resembling established law.

        Again, this raises an interesting point: If Rick, as an agent of law enforcement, is the only relic of the legitimate judiciary, is he therefore relegated to observe, enact, and establish the law? Given the unique case of ‘The Walking Dead’, it would seem that Rick should logically inherit the responsibility of the judicial system (ref. power dissemination in the Federal Government [i.e., Pres–>VP–>Speaker of House–>….last remaining congressperson]). I understand this is a stretch, but it seems entirely plausible that he should come to embody judge, jury, and executioner in this instance.

  7. But, can I kill zombies if they try to kill me? I’d say yes, it is autodefense.
    If I see a walking zombie, can I go out of my way to kill him even if it doesn’t represent a clear danger to me?

    • The legal status of a zombie is an interesting question. On the one hand, it does seem clear that you can kill a zombie that is attacking you. That would be self defense.

      On the other hand, hunting zombies that are not an immediate threat may be more problematic. In most settings zombification cannot be cured, so the zombies are not people, so it would not be murder. And zombies certainly do not seem to be property owned by the living (the ending of Shaun of the Dead notwithstanding), so it would not be destruction of property. But zombies are the identifiable remains of a once-living person, and in many settings a zombie may be killed without destroying the remains (e.g., by beheading). So hunting down and killing non-threatening zombies might be considered mutilation of a corpse, especially if more damage is done to the body than necessary to kill the zombie.

      Failure to properly dispose of the remains or notify the appropriate authorities of the existence of the remains may also be crimes. The latter is a crime in New York, for example. “In case of any death occurring without medical attendance, it shall be the duty of…any other person to whose knowledge the death may come, to give notice of such death to [the proper authorities.]” NY Public Health Law § 4143.

      • As undead beings, zombies you can’t really kill them, as they are technically already dead. You could feasible be guilty of abuse of a corpse or some other law.

        I don’t forsee any problem with killing a zombie that doesn’t represent a clear and present danger to you because I would think the existence of a zombie in your immediate vicinity (even if it is unaware of you at the moment) is a clear and present danger. If you were in California and the zombie was in New York, obviously it doesn’t represent a clear and present danger, but you also aren’t in a position to kill it anyway. Again though even if you did kill the zombie, it wouldn’t be murder as you can’t kill that which is already dead. In Ohio, where I am, you’d be facing a 2nd degree misdemeanor or 5th degree felony.

        At any rate, if you saw a zombie and it hasn’t noticed you, just make a noise to get it’s attention and wallah, it will attack you and you can kill it no questions asked. Consider it the, “It’s coming right for us!” exclusion.

  8. It seems to me that given the fatality of becoming a zombie, self defense would be considered automatic. For example, in order to invoke self defense a person must show the court that a reasonable person under similar circumstances would feel an imminent threat to their person. Given the lethality of zombies and their single mindedness in attacking the living, a reasonable person could and would conclude that ALL zombies pose a legitimate and immediate threat to the living. Also, given that zombies are attracted by the smell and sound killing a zombie has some risk, thus it could also be argued or assumed that killing zombie would only be done under duress. A survivor only attacks a zombie as a last resort.

    Zombies would be considered no different from a rabid dog. One, doesn’t have to show the court that a rabid dog is an imminent threat merely that the dog is rabid.

    Most of the behavior by the living has been within the the legal bounds of both defense of necessity and self defense in the TV show “The Walking Dead.” There is one notable exception. In one scene, a woman takes a necklace from store. This would be a crime regardless of the circumstances. Taking food, clothing, gasoline, transportation, even weapons and ammunition could rightly be taken with impunity as they could be considered necessary for survival, but the taking of jewelry something that could never be considered a necessity would always be considered a crime.

    • Good points, though I think that the necklace example is actually arguable. If I were the woman’s attorney defending her against a charge of theft after the return of civilization, I would probably argue that it was motivated by necessity. Given that the US government has apparently broken down, paper currency was largely worthless and the survivors would necessarily return to a barter economy. In that case, a necklace is a useful store of value, which may be necessary for survival if they later find themselves without an immediate necessity (e.g. food) but able to trade with another group that does have the needed thing. Surely it would be preferable to invoke necessity at the time of the theft and be able to trade the necklace for food than it would be to invoke necessity later to excuse stealing the food directly.

      That’s not necessarily a winning argument, but I think it’s one you can make with a straight face.

    • (This is partly in reply to Achillea) I’m pretty salvage does only apply to the sea, but your comment jogged an interesting thought. Taking the necklace may not be theft at all as it may be considered abandoned property. In a zombie apocalypse scenario it’s also entirely possible that the true owner and all of his or her heirs are dead. In some far-flung genetic sense, the taker may be the true owner’s closest living heir and thus the rightful owner.

  9. This reminds me of the book I AM LEGEND, in which the ending is that the zombie/vampires create their own society and try the protagonist for his crimes against them. P.S. This blog is the most amazing thing in the multiverse!

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  11. Great post.

    Like others, this reminded me of a movie: Ravenous. SPOILER ALERT: The plot line was simple: Donnar Party-like group ends up living in a remote village and the inhabitants gain superhuman powers by eating others. Soon, they run out of food, so must lure others into their camp. Pretty creepy stuff.

    Speaking of the Donners, were any of those people ever charged with murder? According to Wiki they were outside of U.S. jurisdiction at the time of their need-based cannibalism.

  12. If zombies are entitled to trials for their actions, we’re going to have some seriously smelly courtrooms.

    Maybe there could be special outdoor trials for zombies? In fact, why don’t we have more trials outside when the weather is nice? It would probably put everyone in a better mood.

  13. Brandon,

    I think with regards to when one is allowed to “neutralize” a zombie, you are limited to waiting until transformation is complete and the individual has become a legitamite threat to your well-being. There are less restrictive means of ensuring your safety from the individual including ostracizing them or removing yourself from their presence. Until the transformation occurs, they are not a legitamite threat…UNLESS the evidence shows they can transfer the contagion at that point. And only then, you would be limited by reasonable means to prevent yourself or others from being infected.

    Which leads to your second question. I do think there is justification for constraining an individual, without their consent while they are merely infected. Look at the case of Typhoid Mary or any other carrier of an infectious disease. If the medical evidence shows the individual can transfer the infection at any point in the process, they most likely need to be isolated from the general population.

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  17. Terry Washington

    The question is: can zombies( much werewolves and vampires or synthetic humans or “Synths” in the”Humans” TV series now showing on UK and US TV) be legally held to be “persons”(I realize we’re heading into “Dred Scott” territory here!)?


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