The opinion
SPAETH, Justice,
concurring:
I join Judge BROSKY’s opinion, and offer the following comments in the hope that it may be helpful to approach this case, which has given us such difficulty, from a somewhat different angle.
1
The justification defense arose from the recognition that literally interpreted, the law may be not merely “a ass,” caught up in its arcane technicalities, but cruel. A lost and starving man who breaks into a cabin and eats food he finds there is not a burglar and thief. Cf American Law Institute, Model Penal Code § 3.02 Comment at 9 (Tent. Draft No. 8, 1958) (citing examples). There are “higher value[s] than the value of literal'compliance with the law.” G. *273 Williams, The Criminal Law § 229 (2d ed. 1970). As soon as we acknowledge this fact, we recognize that the justification defense is “essential to the rationality and justice of all penal provisions.” Model Penal Code, supra, § 3.02 Comment at 5.
Accordingly, whenever a defendant pleads justification, the court should ask, “What value higher than the value of literal compliance with the law is defendant asserting?” The trial court failed to ask this question. Apparently in its eyes no higher value is implicated in this case. And for the dissent, this case is to be decided as we would decide a case involving “the theft and destruction of guns or explosives by altruistic and well-meaning citizens who sincerely believe that guns or explosives possess the potential to kill at sometime in the future.” Dissenting op. at 285-288. But appellants are not pleading as their justification the danger arising from “guns or explosives;” they are pleading the danger arising from nuclear missiles. One who does not understand that danger does not understand appellants’ plea.
The trial court says that appellants “failed to establish the urgency or ‘imminent danger’ of the public disaster which [they] sought to prevent.” Slip op. at 29. But, I submit, a “public disaster” is “imminent.” “Imminent” means “[threatening to occur immediately; near at hand; impending; — said esp. of misfortune or peril.” Webster’s New International Dictionary 1245 (2d ed. 1938). By resorting only to our own Government’s official publications, we may learn that the United States and the Soviet Union— without reference to Great Britain and France (and others? Israel?) — each has the capability of destroying the other within minutes and on command. See e.g., The Effects of Nuclear War, Office of Technology Assessment (1979) (describing effects of nuclear attacks in various proportions); The Effects of Nuclear Weapons, Department of Defense and Energy Research and Development Administration (1977) (same). Why, then, is disaster not “imminent”? Because our Government and its allies would never initiate *274 the attack? Because the Soviet Union is afraid to initiate it, knowing what our response would be? If this is the trial court’s reasoning — we don’t know, for the court doesn’t state its reasoning — one can only say that many find it unpersuasive. Among the many are the Bishops of the Catholic Church, who say in their “Pastoral Letter on War and Peace, The Challenge of Peace: God’s Promise and Our Response,” Publ. No. 863, U.S. Catholic Conf. at 40 (1983):
We live today, therefore, in the midst of a cosmic drama; we possess a power which should never be- used but which might be used if we do not reverse our direction. We live with nuclear weapons knowing we cannot afford to make one serious mistake.
Also among the many are the authors of the Bulletin of Atomic Scientists, whose symbol for the imminence of nuclear war is a clock. In the January 1984 edition of the Bulletin, the clock stands at three minutes to midnight (in the December 1983 edition, it stood at four).
The dissent, like the trial court, says that “it was unreasonable as a matter of law [for appellants] to believe that nuclear war could be avoided merely by destroying one of several components being separately made for incorporation into future nuclear missiles.” Dissenting op. at 1121. (emphasis in original). See Trial Court Slip op. at 29-30. But nothing in the record warrants the conclusion that this was appellants’ belief. Appellants do not assert that their action would avoid nuclear war (what a grandiose and unlikely idea!). Instead, at least so far as I can tell from the record, their belief was that their action, in combination with the actions of others, might accelerate a political process ultimately leading to the abandonment of nuclear missiles. And that belief, I submit, should not be dismissed as “unreasonable as a matter of law.” A jury might — or might not — find it unreasonable as a matter of fact. But that is for a jury to say, not for a court.
The fallacy in the trial court’s and the dissent’s reasoning is to equate “reasonableness” with “success”: if by break *275 ing the law you did not succeed in gaining your objective, you may not plead justification. But reasonableness is a function of the actor’s situation. If the peril to the town was slight, it may indeed have been unreasonable of me to make a firebreak by destroying my neighbor’s house. But if the peril was great, my action may be seen in a very different light, and my plea of justification may prevail, even in the face of proof that the fire swept across the space I had cleared, and burned down the town. See, e.g., State v. Wooten, Crim. No. 2685 (Cochise Cty., Ariz. Sept. 13, 1919) (unreported) reprinted in Comment, The Law of Necessity and the Bisbee Deportation Case, 3 Ariz.L.Rev. 264 at 278 (1961) (“One claiming the right to destroy buildings to prevent the spread of a conflagration must necessarily have that right determined by the condition existing or appearing to a reasonable man to exist at the time of the destruction.”). See generally Arnolds & Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Criminology 289 (1974). 1
No peril is greater — no peril even approaches — the peril of nuclear war:
The people in the Pentagon offices and their counterparts in the Kremlin where the questions of coping with war injuries are dealt with must be having a hard time of it these days, looking ahead as they must to the possibility of thermonuclear war. Any sensible analyst in such an office would be tempted to scratch off all the expense items related to surgical care of the irradiated, burned, and blasted, the men, women, and children with empty bone marrows and vaporized skin. What conceivable benefit can come from sinking money in hospitals subject to instant combustion, only capable of salvaging, at their intact best, a few hundred of the victims who will be lying out there in the hundreds of thousands? There exists no *276 medical technology that can cope with the certain outcome of just one small, neat, so-called tactical bomb exploded over a battlefield. As for the problem raised by a single large bomb, say a twenty-megaton missle (equivalent to approximately two thousand Hiroshimas) dropped on New York City or Moscow, with the dead and dying in the millions, what would medical technology be good for? As the saying goes, forget it. Think of something else. Get a computer running somewhere in a cave, to estimate the likely numbers of the lucky dead. L. Thomas, On Medicine and the Bomb, reprinted in L. Thomas, Late Night Thoughts on Listening to Mahler’s Ninth Symphony at 118 1983).
Nor is the peril confined to those who will be “irradiated, burned, and blasted.” It extends much farther, to our survival as a species. If only a small fraction of the nuclear missiles now able to be fired, either by us or the Soviet Union, are fired, a “dark nuclear winter” will occur: a cloud of debris will block off our sunlight; temperatures will plunge; and our death by freezing or starvation will follow. Scientists have identified a 100 megaton explosion as the “nuclear war threshold” that once crossed will lead to such a global catastrophe. See “After Atomic War: Doom in the Dark,” Phila. Inquirer, November 1, 1983, at 1. It is in the light of this peril that the reasonableness of appellants’ belief must be judged.
Perhaps a jury will discount evidence that our situation is as desperate as the authorities I have alluded to believe. Or perhaps a jury will regard appellants’ conduct as mere bravado. On either of these views, appellants’ plea of justification will fail. But we must leave such appraisals to a jury. For we are not entitled to hold, “as a matter of law,” as the dissent would, that a jury could not find that our situation is as desperate as appellants offered to prove, and then, proceeding from that finding, could not go on to decide that appellants’ conduct, however unlikely of success, represented a reasonable response. I admit that for my part — and here at least I suppose that the dissenters *277 and I are not far apart — I am skeptical of appellants’ conduct. I believe there are better ways, the Bishops’ among them. But that is what trial by jury is all about: to ensure that the defendant is not judged by a skeptical judge but by his peers.
2
Like Judge BROSKY, I find nothing in support of the claim that Congress, in exercising the war power, has preempted the defense of justification, and I see no need to add to the discussion of preemption in Commonwealth v. Capitolo, 324 Pa.Super. 61 , 471 A.2d 462 (1984), except for a brief comment on the dissent’s reliance on Hirabayashi v. United States, 320 U.S. 81 , 63 S.Ct. 1375 , 87 L.Ed. 1774 (1943), and Senate Report No. 1699.
In Hirabayashi the Court upheld an Executive Order of the President confining some 70,000 American citizens to designated military zones because they were Japanese or of Japanese ancestry. It is not one of the Court’s finer moments, 2 and to the extent that it still stands for anything, it illustrates how an uncritical acceptance of the war power can lead us to abandon liberties we say we hold dear.
The dissent cites Senate Report No. 1699, U.S.Code Cong. & Admin.News 1954, p. 3456, which discusses the Atomic Energy Act of 1954, as showing that Congress was “fully cognizant of the dangers inherent in nuclear weapons.” Dissenting op. at 289. But no one today shares the Report’s serene confidence in “our atomic weapons stockpile.” If the Report shows anything, it shows that Congress was not fully cognizant of the dangers inherent in nuclear weapons. If we are inquiring into Congressional cognizance, we should do better to examine the debates over whether to authorize the production of the MX missile, see, e.g., 129 Cong.Rec.H. 5309-50 (daily ed. July 30, 1983), and *278 the adoption by the House of the Nuclear Freeze Resolution, see 41 Cong.Q. 868 (May 7, 1983) (reporting passage of HJ.Res. 13).
Time has overtaken Hirabayashi and Senate Report No. 1699. Nothing in them suggests that Congress has preempted appellants’ right to plead the defense of justification provided them by our Crimes Code. Indeed, recently just the opposite has been made apparent by the Supreme Court’s decision in Silkwood v. Kerr-McGee Corp., — U.S. —, 104 S.Ct. 615 , 78 L.Ed.2d 443 (1984). There the Court held that an award under state tort law of punitive damages against a federally-licensed manufacturer of nuclear fuel pins for use in nuclear power reactors was not preempted “either because it falls within that forbidden field [regulating the safety aspects of nuclear energy, Pacific Gas & Electric Co. v. United States Energy Resources Conservation & Development Comm’n, 461 U.S. 190 , 103 S.Ct. 1713 , 75 L.Ed.2d 752 (1983)] or because it conflicts with some other aspect of the Atomic Energy Act.” At —, 104 S.Ct. at 617 . After reviewing the legislative history of the Price-Anderson Act, Pub.L. 85-256, 71 Stat. 576 (1957), and amendments thereto, limiting liability for one nuclear accident, the Court observed:
Punitive damages have long been a part of traditional state tort law. As we noted above, Congress assumed that traditional principles of state tort law would apply with full force unless they were expressly supplanted. Thus, it is Kerr-McGee’s burden to show that Congress intended to preclude such awards. See IBEW v. Foust, 442 U.S. 42, 53 [ 99 S.Ct. 2121, 2128 , 60 L.Ed.2d 698 ] (1979) (BLACKMUN, J., concurring). Yet, the company is unable to point to anything in the legislative history or in the regulations that indicates that punitive damages were not to be allowed____
In sum, it is clear that in enacting and amending the Price-Anderson Act, Congress assumed that state-law remedies, in whatever form they might take, were available to those injured by nuclear incidents. This was so *279 even though it was well aware of the NRC’s exclusive authority to regulate safety matters. No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a state may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever tension there was between them. We can do no less,
at_, 104 S.Ct. at 625 .
We, too, “can do no less” than to retain, in cases like this, the defense of justification provided by our Crimes Code. For if Congress has not preempted state tort law, it surely has not preempted state criminal law.
3
In one of his last books, Civilization and Its Discontents, Sigmund Freud pictured us as caught in a struggle between two “Heavenly Powers” — Love, or Eros, and Death. Reflecting on the outcome, he said:
... I have not the courage to rise up before my fellowmen as a prophet, and I bow to their reproach that I can offer them no consolation: for at bottom that is what they are all demanding — the wildest revolutionaries no less passionately than the most virtuous believers.
The fateful question for the human species seems to me to be whether and to what extent their cultural development will succeed in mastering the disturbance of their communal life by the human instinct of aggression and self-destruction. It may be that in this respect precisely the present time deserves a special interest. Men have gained control over the forces of nature to such an extent that with their help they would have no difficulty in exterminating one another to the last man. They know this, and hence comes a large part of their current unrest, their unhappiness and their mood of anxiety. And now it is to be expected that the other of the two “Heavenly *280 Powers,” eternal Eros, will make an effort to assert himself in the struggle with his equally immortal adversary. But who can foresee with what success and with what result?
S. Freud, Civilization And Its Discontents, 92 (W.W. Norton & Company, Inc., N.Y., 1962).
It is with Freud’s final, haunting question in mind that we should decide this case. For it is this question that provides the context in which appellants’ conduct must be judged.
. I know that other courts have used the same reasoning that the dissent has. See, e.g., United States v. Best, 476 F.Supp. 34 (D.Colo.1979); State v. Marley, 54 Haw. 450 , 509 P.2d 1095 (1973). But see Commonwealth v. Capitolo, 324 Pa.Super. 61, 78-80 , 471 A.2d 462, 471 (1984) discussing in some detail why this reasoning is unpersuasive).
. See, e.g., Girdner & Loftis, The Great Betrayal (1969); Grodzins, Americans Betrayed (1949); Dembitz, Racial Discrimination and the Military Judgment, 45 Colum.L.Rev. 175 (1945); Rostow, The Japanese — American Cases — A Disaster, 54 Yale L.J. 489 (1945); Freeman, Genesis, Exodus and Leviticus — Geneology, Evacuation, and Law, 28 Cornell L.Q. 414 (1943).