It’s Just Wrong

Does it make sense to work your way back to first principles with a preferred outcome in mind? For example, I agree entirely with JL Wall when he writes:

Basic status as human beings: this is distinct from the concept of universal human rights. It is not a statement that there is a basic natural right held by all humanity to have counsel, or see evidence against them, or receive halal meals if they want them. It is a statement that there is a basic standard expect of us—you and me—in how we treat our fellow human beings; that so long as we acknowledge their mere humanity, we are morally—so much more morally than legally—obligated to treat them as more than animals. At its core, this is what the torture debate is about, has always been about, and will always be about.

But I’m not sure if a liberal, rights-based framework recognizes a universal standard of humane treatment. A purely utilitarian calculus includes all sorts of pragmatic objections to torture – it’s unreliable, it demoralizes military personnel, it has a tendency to bleed into other areas of society – but I’m less confident that it accounts for a hard-and-fast prohibition against certain techniques. And from a purely utilitarian standpoint, I think that torture is probably justified under certain carefully prescribed circumstances. If a terrorist suspect possessed critical information about an imminent, large-scale attack, and there was no time to develop alternative sources of intelligence, would liberals really object to torturing someone to extract valuable information?

I find this deeply troubling because until very recently, I would have placed myself squarely on the liberal end of the political spectrum. My views on economics have drifted rightward in recent years, but I always assumed that an open, tolerant society that does its best to nurture a happy, prosperous citizenry is the most desirable form of social organization. I’m still not entirely convinced that this is not true, but I do think that torture reveals something of a moral blind spot within liberalism’s broader ethical framework. When things go bad, we inevitably carve out exceptions to our rights-based approach, justifying it all under the rubric of “extenuating circumstances.” Once again, Koestler said it best:

“There are only two conceptions of human ethics, and they are at opposite poles. One of them is Christian and humane, declares the individual to be sacrosanct. and asserts that the rules of arithmetic are not to be applied to human units. The other starts from the basic principle that a collective aim justifies all means, and not only allows, but demands, that the individual should in every way be subordinated and sacrificed to the community – which may dispose of it as an experimentation rabbit or a sacrificial lamb.”

“In times of need – and politics are chronically in a time of need – the rulers were always able to invoke “exceptional circumstances,” which demanded exceptional measures of defense. Since the existence of nations and classes, they live in a permanent state of mutual self-defense, which forces them to defer to another time the putting into practice of humanism . . . .”

And while I understand the logic of “exceptional circumstances,” I’ve always found Rubashov’s gut reaction more compelling:

“Admit,” he said, “that humanism and politics, respect for the individual and social progress, are incompatible . . . But look where the other alternative has led us . . .”

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7 Comments

Filed under Conservatism, Liberalism, Morality

7 responses to “It’s Just Wrong

  1. publiusendures

    The thing that I’ve been arguing for quite some time about the “ticking time bomb” scenario you describe is that there is no need to create a formal exception for it. We already have affirmative defenses in law for necessity, duress, and defense of others.
    The use of an affirmative defense such as this would essentially create a post-hoc trial on whether the use of torture was appropriate in a given circumstance. But by carving out a formal exception for ticking time bomb scenarios, we take the burden of proof off of the torturer and place it on the victim of the torture, essentially making him guilty until proven innocent.
    In other words, relying on the existing common law regime still permits torture in those exceedingly rare circumstances where it could be absolutely necessary – but it limits that permission to those instances. Thus, the pre-existing common law regime says “you can torture under certain circumstances, but if you do, you better be absolutely certain that those circumstances apply.”

  2. Right, which sort of proves my point. We’ve constructed a series of exceptions for “extenuating circumstances” that allow people to literally get away with torture. The difference between Democrats and Republicans, then, isn’t a matter of principle – it’s a matter of circumstance. Republicans condone torture under a broader set of conditions; Democrats want to impose more constraints on its implementation. In the final analysis, both sides implicitly accept the need to torture suspects under certain extreme conditions.

    I find this unbelievably frustrating because I want to consider myself a liberal (in the broadest sense of the word). But I also know that torture is simply wrong, and I’m afraid that our political framework doesn’t justify an absolute prohibition on inhumane treatment.

  3. publiusendures

    I think it’s more than a matter of circumstances, though (and the difference isn’t so much between Democrats and Republicans as it is between liberals/libertarians and modern conservatism/establishment thought). In the one instance, you are talking about prior justification for torture – the torture is explicitly allowed by law under certain circumstances. In the other instance, torture is never explicitly allowed by law; instead, the justification simply takes the form of a post-hoc affirmative defense, with the burden on the torturer to demonstrate that there was a legitimate need to torture in that specific circumstance.
    Moreover, this does not provide a moral justification for the torture, which a prior justification largely does. Instead, relying on the long-extant common law affirmative defenses essentially says that “torture is always and everywhere wrong; however, we will not punish someone for acting immorally where circumstances relieve them of the ability to exercise their free will to act morally.” Importantly, these defenses apply to virtually any other act we deem criminal. In other words, applying these defenses to torture simply holds torturers to the same legal standard as we already hold murderers, rapists, and thieves. Thus, it justifies torture no more often than we justify murder, which is as close to a universal moral absolute as has ever existed.

  4. What if prior justification – “extenuating circumstances” in this case – is implicit rather than explicit? In other words, we might refuse to codify a legal exception for torturing suspects, but it’s widely understood that inhumane treatment can be excused under certain extraordinary conditions. Is there a real moral distinction between the two approaches? Implicit acceptance may capture more pragmatic benefits than an explicit legal exception, but I’m not sure if there’s an ethical difference here.

    You say:

    Instead, relying on the long-extant common law affirmative defenses essentially says that “torture is always and everywhere wrong; however, we will not punish someone for acting immorally where circumstances relieve them of the ability to exercise their free will to act morally.”

    I assume this refers to legal defenses like insanity or emotional distress. But under certain conditions – the “ticking time bomb” scenario, for example – I’m not sure if torture would be considered immoral or irrational within a purely utilitarian framework. At the very margins of liberal society, our treatment of detainees seems entirely contingent on circumstance. This worries me greatly, because I feel that the only moral choice is to prohibit torture completely and accept the consequences.

  5. publiusendures

    Actually, I was referring specifically to defenses of duress, necessity, etc. each of which have different burdens of proof and provide different degrees of protection if proven (in many instances, we may even be talking about only a slight degree of protection). For instance, almost everyone readily acknowledges that homicide in self-defense is acceptable and is a legitimate legal defense. This does not make murder any more ethical, however. The problem of course comes at the margins – what is an appropriate level of force to use in self-defense, for instance?

    As for whether torture would be considered immoral or irrational within a purely utilitarian framework, I think your point is more of an indictment of relying on purely utilitarian analyses than it is of the morality of permitting affirmative defenses of duress and necessity.

    One thing I should point out, for what it’s worth – the standard I am advocating is one that, to my knowledge, has not been met in a single documented instance of torture to date (I’ve been as strong an opponent of torture as you can find, I think). It’s an exceedingly limited defense; I also don’t think it undermines the immorality of torture, because it simply applies long-enshrined principles of common law that acknowledge that in some circumstances what is moral and what is legal must diverge.

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