Oh, I like this
Yes, the legal system *is* a lot more flexible than that, of course. However, that doesn't mean that throwing the switch isn't murder, legally. First, I'd like to point out that throwing the switch *is* murder, in a purely technical sense, as you actively take someone's life. The legal question is, can you be convicted of said murder?
In a jury trial, I would say that that would be unlikely (However, I am not a fan of the jury arrangement. A jury consists of laymen, not legal professionals trained to remain impartial. A jury is biased, there are multitudes of examples of a jury aquitting rapists because they thought the victim dressed slutty.). Saving the lives of five by sacrificing one, purely from a utilitarian standpoint, is justifiable, thusly falling in under realm of necessity. Interestingly, that can also be said of the second situation. It is *necessairy* to push the dwarf to save the five, and so this also becomes a justifiable homicide, from a purely utilitarian viewpoint, which I'm assuming you're adopting?
For the sake of simplicity, I also think that adding the factors of employment, responsibilities and what have you is going a bit too far, in real life these things are relevant, but this is a philosophical problem, and not a real situation. That, of course, means that debating it legally isn't very easy, because the legal system relies on circumstances. No situation is really as static as "you're there and this happens, what do you do".
So since legal technicalities really aren't very helpful unless we speculate wildly as to who the relevant dwarves are, what they do, what their responsibilities are, this problem should be handled by legal philosophy alone. No adding or subtracting of facts, just the problem. Nothing more.
Now, you take the basically utiltarian standpoint of justifiable homicide, seeing as murdering one dwarf (in either situation) leads to the overall beneficial result of five dwarves surviving. The ends justify the means. Also, I must concur that inaction *can* constitute culpability. However, when action means taking a life, I would find it hard to convict someone for not acting.
Here's a challenge for you, though. Are you as culpable by inaction when not pulling the switch as you are for not pushing the dwarf? (And just to adress your view on this, you can't just assign a purpose to the switch and the dwarf in a philosophical problem, you have to stay within the frame. The lever has no inherent purpose other than to direct magma flow, it wasn't put there to "prevent disaster". If it were that simple, I could simply say that the dwarf in plate is most likely military, as reasoned by you at that time, and is thusly obliged to sacrifice himself to prevent the deaths of others. You're just helping things along. See how that works? You can just go on and on forever.)
As for defending not pulling the switch, I'd like to cite Immanuel Kant: "Act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never merely as a means" It is wrong to take a life as a means to an end, however justified that end may be. This goes back to human rights, you have a *right* to not be murdered to save another. This is widely accepted in most legal systems, and think we can all understand the reasoning behind this. Would you kill someone to get their liver and heart, thus saving two others? I think none of us would very much enjoy living in a totally utilitarian world.
It's difficult, and legally, it's very much dependant on which country this "trial" is being had in. If the legal tradition of the country leans toward utilitarianism, taking action is not punishable, but inaction is. If the legal system leans towards human rights, however, then taking action would be punishable, but inaction would not be.
Personally, I like to go with human rights on this one. On the whole, it is a good thing to prevent accidents, but not by murdering an innocent bystander. An accident is just that; an accident. Nobody's fault. But a deliberate action resulting in someone's death? Murder. I like to feel like I have a right to not be randomly murdered by some guy, even though my death would save some people. I might volunteer, but I believe we all have a right to choose in the matter.
As for being sued, you're pretty much gently caressed either way.
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Shoving him into the line of fire is harder to justify, and it won't go over as well with the jury's "gut feelings".
This is exactly my point, where the hell does that "gut feeling" come from? Drat and bebother it.