Philosophy 220
The Moral Status of War and Torture
What’s the Deal with War, Terrorism and Torture?
War, Terrorism and Torture, like all other forms of human activity, have moral implications that ethics helps us evaluate.
Like some of the other activities we’ve taken a look at, War is something which common moral opinion agrees is sometimes justified, but not always.
Terrorism and Torture, on the other hand, are instances of activities which common moral opinion generally forbids (murder is another example). In these cases, too, arguments have been made that they can be/are
justifiable acts/practices. This is an example of how ethics can expand our common moral
judgment.
What are the Ethical Questions?
As we’ve seen in other contexts, moral philosophy asks general questions about the appropriateness and adequacy of moral judgments.
In the context of W, T and T, the questions take this form:
1. Are W, T or T, considered individually, ever morally permissible?
2. If any of them are, what best explains why (justifies)?
Some Definitions: War War: (1): a state of usually open and declared armed
hostile conflict between states or nations; (2) a period of such armed conflict (390).
The distinction between hot and cold wars expands on this definition. Hot wars are wars which actually involve fighting. Cold wars are those which are carried out without declaration or direct military conflict.
We are going to focus on hot wars, two controversial instances of which our country is currently involved.
Some Definitions: Torture Defining torture is also a challenge, in this instance because
of a problem common to moral evaluation: the fact that strictly delimiting acts of torture from other similar acts is difficult, if not impossible to do.
Timmons cites the U.N. Convention on Torture as a definition (see p. 392).
Three implications: (1)Given the ambiguity highlighted above, much emphasis is given to the motivations of the person performing the act; (2)Some acts are clearly torture, some acts are clearly not, but there are some which straddle the line; (3) the definition restricts torture to acts done be individuals at the behest of state authority.
Theoretical Extremes Two positions which could serve as the endpoints of a
moral spectrum addressing war are moral nihilism and anti-war pacifism.
Moral Nihilism: the view that moral considerations do not apply to war (393). An absolute nihilist rejects any moral questions about war; a
limited nihilist acknowledges questions about the justice or injustice of specific wars, but argues that in a war, anything goes.
Anti-War Pacifism: any massive use of lethal force (wars) are always (perhaps, almost) morally wrong.
Theoretical Mainstream
Just-War Theory is a common context of moral analysis of war.
Though there are a number of competing JTWs, a clear and straightforward account comes as an extension to Natural Law Theory. Particularly helpful is the NLT’s “Doctrine of
Double Effect.”
What does JWT do? As the title suggests, JWT assumes an answer to the
first of our moral questions about war: war is sometimes justified.
The theory provides us with an answer to the second question, specifying the conditions under which war is justified, and thus, of course, unjustified.
Like most theories justifying war, JWT makes the basic distinction between jus ad bellum (discussion of when it is justified to go to war) and jus in bello (discussion of morality of activities used to make war).
Jus ad Bellum
JWT identifies 5 conditions which must be met for a justified decision to go to war.
1. War must be declared by a legitimate authority.
2. There must be a just cause.
3. War must be a last resort.
4. There must be a reasonable chance of success.
5. The violence produced must be proportional to the wrong being resisted.
Jus in Bello Employing the doctrine of double effect, JWTs
specify 4 conditions which must be met for a particular action to be just in pursuit of military ends.
1. Military Necessity: the action must be necessary to accomplish a justifiable military end.
2. Discrimination: the action must avoid, to the extent possible, innocent collateral damage.
3. Proportionality: the evil of the activity (casualties, property damage, etc.) must be in proportion with the good of the goal of the action.
Wasserstrom, “Does Morality Apply?”
Wasserstrom’s article evaluates the common arguments for Moral Nihilism, ultimately concluding that the arguments are unsuccessful.
On the assumption that the presumptive position is that war is susceptible to moral evaluation, Wasserstrom concludes that MN is false.
What is Moral Nihilism? The first step in evaluating arguments for a position
is to carefully and clearly state the position and arguments under examination.
With the help of the Acheson quote (398), Wasserstrom works to provide a clear, unambiguous statement of the position.
As he goes on to show, disambiguating the position reveals that there are a number of different possible MN positions to argue for, and the arguments for each of them have to be evaluated on their merits.
Conceptual MN One way to understand the MN claim is to understand it
as a statement of analytic or conceptual truth: it is impossible for war to be evaluated from a moral standpoint.
• A MN view on war could in this sense be just an instance of the broader claim that morality is empty or useless, but most frequently it amounts to the claim that war is a special case.
Evaluation? This analytic claim certainly isn’t true merely by the definition of war. The definition certainly indicates that war is a case when killing is acceptable, but it doesn’t require that it is always or in any way acceptable.
Prescriptive MN Another way to understand MN is as a prescriptive
claim that in the case of war, national interests ought to trump moral considerations.
A common way of making this argument is to make appeal to consequentialist features, such as that fewer American lives would be lost if a particular war is fought or a particular weapon system is used, even though it may lead to the loss of more foreign lives. Clearly, an underlying assumption is that American lives are more
valuable than those of foreigners. Another common assumption is that leaders making the decision to go
to war act as servants of the interests of the citizens (like lawyers acting as servants of the interests of their clients).
Evaluation? Taking the lawyer analogy seriously requires that we
recognize that such “servant” roles are not absolute. Lawyers are often required to act counter to the interests of their clients, if moral considerations overwhelm those interests.
If a lawyer knows that their client is going to commit a crime, they are morally (and legally) required to report it. Similarly, a leader does have an obligation to protect her citizens, but not in ways that violate other fundamental moral obligations (like respect for human life).
It’s also dubious that appeals to national interests rule out consideration of the interests of other nations.
Finally, the claim that national interests trump other interests is itself in need of justification that is not obvious or straightforward.
Implications Given the strong presumptive argument that all
areas of human activity are open to moral evaluation, the argument that war qualifies as a case of special exemption needs to be justified.
Wasserstrom examines the common justifications offered for this claim and provides strong arguments that they do not work.
Lacking justification, the MN thesis should be rejected.
Shue, “Torture” Shue bases his remarks on torture on the commonly
recognized limitations on the exercise of war as highlighted in Just War Theory’s concerns about Jus in Bello.
The concern to insulate noncombatants from the effects of war can be understood to serve a number of principles Efficiency: helps to minimize human suffering. Humaneness: only way to conduct war consistent with the
requirement to respect human dignity. Fairness: limits war only to the participants.
Why People Abhor Torture Reflection on these principles helps understand
the common revulsion against torture. Even the weakest of these principles (fairness)
seems violated by acts of torture, which can in no way be construed as a “fair fight.”
Generally, all of these principles underscore the wrongness of assault upon the defenseless, which is precisely what torture embodies.
Are they all defenseless? In response to this common argument against torture,
some people reply that captured individuals who retain important information are not absolutely defenseless, in that they could defend themselves by surrendering that information (Shue calls this the “Constraint of Possible Compliance”).
This sort of argument clearly does not justify any torture, especially what Shue calls “Terroristic Torture,” torture used to frighten or control a population through intimidation.
Interrogational Torture A more difficult case is that of Interrogational
Torture, which to the extent that it is limited to the pursuit of justifiably important information may satisfy the constraint of possible compliance.
Clearly, even if justified, IT does not permit any and all torture: few acts of torture fall clearly within the IT class and any sadism is forbidden.
Possible Compliance? More substantively, the constraint of possible compliance
significantly limits the application of torture. Shue identifies three different types of individuals against whom
torture may be used, each of which embodies a different relationship to the constraint.
1. Collaborator: not closely involved with the “group,” this person can readily comply and would thus seem to satisfy the constraint.
2. Innocent : have no information to give and thus cannot comply, torturing this person would never satisfy the constraint.
3. Committed: since complying would require this person to betray their ideals, there is no real chance for escape, and thus the constraint would not be satisfied.
Implications? When we consider the range of people against whom
torture may be directed, it becomes clear that the constraint of possible compliance authorizes a very narrow range of IT, essentially limiting it only to collaborators.
This in turn calls much IT into question as it is rare that collaborators would have the sort of information necessary to justify torturing them for it.
Final Assessment On Shue’s analysis, most acts of torture will not be justified. This includes the whole class of acts properly characterized as
terroristic torture, which though perhaps formally justifiable in specific and extreme conditions, would in practice be virtually impossible to constrain appropriately.
• Once begun, such acts would tend to become a permanent feature of the State’s activities (see p. 430).
Though it is certainly possible to conceive of an instance when IT would be justifiable (the ticking bomb), these circumstances would be so rare in fact that the argument in favor of IT certainly doesn’t justify relaxing the legal (or moral) prohibitions against the activity.
Dershowitz, “Ticking Bomb?” Dershowitz offers arguments in favor of the sort
of IT characteristic of the “ticking bomb” scenario.
While we saw Shue would also authorize this sort of IT, Dershowitz offers a somewhat less constraining moral analysis and argues that existing laws should be changed to explicitly authorize torture in these sorts of circumstances.
Utilitarian Considerations Dershowitz appeals to the tradition of
utilitarianism to make his case for Ticking Bomb Torture.
We have already seen the intuitive appeal of this sort of consequentialist thinking in the case of war. If the torture of 1 person could save the lives of a hundred, it seems reasonable on consequentialist grounds to authorize it. It’s not only a numbers game. Pain is certainly a
lesser harm than death.
Another View An important counter-argument to this common-sense
consequentialism comes from consequentialism itself. The sort of justification appealed to on the last slide is best
understood as an application of act-utilitarianism. Rule-utilitarians have argued against all torture on the basis of the claim that, such an act, once institutionalized would violate a consequentially justified rule.
The underlying concern is that if we start playing the “end justifies the means” game, anything will be permissible (the so-called “slippery slope”).
Appropriate Constraints Dershowitz ultimately wants to undercut this sort of
slippery slope argument, though he recognizes its force. The way to do this, he thinks, is to consider the
appropriate role for limiting rules. The first step is to acknowledge that the infliction of pain
if appropriately constrained, as in for example punishment, is morally unproblematic.
Three Ways Relying on his experiences with the debate in Israel
on the question, Dershowitz identifies a number of possible models for establishing appropriate constraints.
1. Twilight Zone: allow elements to practice torture outside of public knowledge or control.
2. Hypocritical Approach: turn a blind eye to torture.
3. Rule of Law: legally specify and constrain the circumstances and methods of possible acts of torture.
A fourth approach would be a blanket prohibition, but Dershowitz denies that anyone really advocates this.
Where is Shue? On Dershowitz’s schema, Shue would seem to
be advocating something like the first of these options.
Dershowitz is critical of this standpoint because while it does satisfy our concerns for individual and national welfare, it is silent on concerns for civil liberties and the rule of law. “In a democracy governed by the rule of law, we
should never want our soldiers or our president to take any action that we deem wrong or illegal” (438).
The Lessons of History To make the case for the third option, Dershowitz appeals
to history, specifically the situation in England during the 16th and 17th centuries.
Then and there, torture was legally proscribed under specific conditions and tightly controlled by the central government.
Though this sort of system doesn’t prevent abuses or completely remove the negative social/aesthetic implications of torture, it is clearly easier to control than the twilight zone model.
Benefits of a Warrant System In this third option, a judicial warrant would have to be
secured for an act of torture to be permissible. Dershowitz believes that such a system would limit the
acts of torture to the minimum required, be maximally protective of civil rights, and specifically better protect the rights of possible victims of torture.
The appropriate analogy, he argues, is with search and seizure rules, which the courts have long argued are better protected by judges than by police officers.
One More Concern Dershowitz closes his discussion by considering a final
counter-argument from someone like Shue: that formalizing the constraints on torture in law risks establishing a precedent that would be difficult to constrain.
Dershowitz acknowledges the difficulty of precedent, and the accompanying social dangers, but insists that in a democracy it’s better to have this conversation in advance than fly by the seat of our pants.
Guantanamo seems to bolster his case.
