12. Can we do practical reason?

Just because the issues raised by just war and torture are both nasty and extremely difficult, they are likely to prove a very suitable testing ground for the different (from the German philosopher Immanuel Kant) version of practical reason I have already experimented with in my second book. I employ the conception of rationality or reason which grew up very slowly after the seventeenth century, and became normal usage in the twentieth century. The form of rationalism current in the seventeenth century – for instance, in the thought of Leibniz – held that significant knowledge can be derived by reasoning without the aid of sense experience, often on the lines of mathematics. Later this mutated into a form of rationalism, or reliance on ‘reason’ which blended with empiricism rather than being taken in opposition to it. In this conception, exemplified by the philosophy of Popper but running through analytic thought generally, reason/rationality sets much value on the scientific method whilst intellectual reasoning on the model of logic and mathematics (‘pure reason’ in Kant’s terminology) can be supplemented by testing by observation and experiment, i.e., empirical testing. Commonly in recent times the contrast tends to be made not between rationalism and empiricism, but between dependence on evidence and anything which might be claimed (with sympathy or with dismissal) to be based on ‘faith’, such as religious knowledge or mysticism.

The method of practical reasoning, or experiment, I propose does not differ from a Kantian model in being applicable to particular cases of moral problems but rather in finding guidance for action in the practical constraints there may be on our possibilities for action instead of through an instruction or ‘law’ derived by a priori reasoning. This approach to ‘practical reason’ might be felt necessary in the twenty-first century when we are not merely dealing with people lacking a ‘good will’ in Kant’s sense; i.e., unconcerned with whether rules or practices which may suit them are equally appropriate for everyone to follow. In many cases people are rather responding to differing and conflicting moral imperatives. That conundrum is prominent in relation to issues surrounding war and torture being highlighted here. For instance we may find there is nothing surprising to us about interrogators finding a categorical imperative in service to their country or cause which leads them to countenance practices like torture contrary to (say) human rights or standards of a supposed common morality. The problem of moral conflicts and dilemmas is all the more disturbing for being increasingly familiar. It may be noted that practical reason in the modified form proposed here does not automatically exclude the calculation of self-interest so often implied by current use of the term ‘rational’ (for instance, in game theory) but subordinates it to resolution of moral conflicts in a way suitable for treating persons (not just myself) as ethically significant. I hope that the theme of equal applicability in Kant’s thought can still work within the different approach.

It is not just a digression to point out here that the classical Utilitarians came closer to treating people as ends in themselves than is sometimes realised because they aimed to count individuals and not groups; by ‘utility’ they did not mean advantage to a state or society but to individuals only. However, I do not intend to advance a utilitarian argument in the conventional sense here, although I cannot see how consequences (for individual persons or communities) can ever be left right out of account. Kant himself was not really able to do so.1 In the age of existential threats to human civilisation or mass destruction weapons moral futility is a luxury we cannot afford.

Kant’s followers might reply here that because the Kantian doctrines of good will and categorical (moral) imperative include the requirement that we treat people, individually, as ‘ends in themselves’ and not as means to any further end, be it personal advantage of some kind or a more general end such as nationalism, patriotism, or some conception of religion, they secure a moral stand on abusive actions like war or torture without having to leave unresolved dilemmas. Yet there are multiple complications with such a reply: (a) It is just a fact that people regularly do select between moral imperatives for action, and how to conduct their lives, in cases ranging from (say) upbringing of children to war, and relying either on justifications which many do not share, such as a religious faith, or on no apparent justification whatsoever; (b) despite Kant’s claim to be avoiding any reference to utility or consequences in his own theory, as well as distrust of these ideas by many recent philosophers, it is probably impossible to ignore either welfare or danger (those being terms with clearer meaning than ‘utility’ or ‘disutiliy’) when assessing moral judgements; (c) if ends, including those of persons, conflict any philosophy of absolute imperatives, be it religious or secular, is liable to sink into the quagmire called ‘moral tragedy’. If we are to leave conflicts and dilemmas as simply tragic, it might be more honest to say we just have no moral guide at all.

Behind all this lies the problem arising from the Kantian attempt to ground the ethics, and then moral laws, in a metaphysics, a metaphysics which took reason (rationality) to be essential to man. In criticising Kant Schopenhauer had argued that since reason appears as an exclusively human phenomenon, it cannot be treated as any kind of transcendent reality independent of human beings. Therefore, Kant was not justified in refusing to accept an empirical component to human thought and thus formation of moral ideas. Yet Schopenhauer himself still felt able to begin from a metaphysical, and therefore he supposed indestructible, basis for his own theory although in his usage the notion of ‘will’ was decidedly not a rationalistic one. The fundamental problem with relying on metaphysics at all for such a purpose as grounding morality and principles of ethics is that metaphysics is such an all-inclusive field; it has to be open to all categories, modes, or particulars that we can conceive of, many of them being simply not moral categories at all. Any hope that the structures of, for example, mathematical thought or of logic (which indeed are not temporary or liable to removal and change) could provide any basis for morality must founder on the simple point that concepts like numbers or spaces may be used for any purpose, be it morally good, bad, or indifferent. Metaphysics has to encompass the entire range of conceptualising and thinking which is possible, and for that very reason cannot determine for us whether or not we should ever be permitted to kill and torture one another. (From the standpoint of metaphysics there is no such thing as the ‘unthinkable’). But that is just the kind of question that practical philosophy, including ethics itself, has to deal with. The only possible way metaphysics could set a grounding here would be if human activities themselves, like development of technology, were ever to impinge on conceptual possibilities, like definition of a person, for example. It is my personal view that this is unlikely ever to be the case. So, I find it necessary to work for a practical reason which will not necessarily yield absolute certainty, but which can be drawn from the practicalities of living, rather than any instruction from the nature of thought itself.

Cases: 1. Just(ifiable) war

For both just war and torture it is convenient to consider the issue in relation to the arguments of the political philosopher Michael Walzer, just because Walzer attempts to argue from culturally established moral norms including justice itself. Walzer’s (1978) case for just (and justifiable) war against pacifism runs into difficulties because he seeks to refute ‘deontological’ pacifism – that is to say, pacifism based upon the principle that deliberate killing is wrong regardless of consequences and circumstances – whilst holding to the principle that killing of ‘innocents’, i.e., non-combatants, is always contrary to just war. In point of fact, recently developed precision technologies allow civilian casualties to be kept limited more easily than in the past, but no one would suggest that warfare can be conducted without civilian or non-combatant casualties, more especially in instances of guerrilla warfare, civil war, and terrorism where it may be impossible for anyone to be sure who is a combatant and who is not.

The difficulties can be understood as taking two related forms. Firstly, Walzer accepts the Catholic idea of ‘double effect’ which holds that in cases where an action causes serious harm, such as death of a human being, the action may be (morally) permissible for the sake of a good end, provided that the agent does not ‘positively will’ the bad effect (New Catholic Encyclopedia), or ‘intend’ it (Joseph Mangan, 1949, p. 43). The term ‘double effect’ relates to the presence of a combination of both bad and good effects resulting from the action concerned. Walzer argues for the further condition that agents minimise forseen harm even if this will involve accepting additional risk or forgoing some benefit. Naturally, that last condition carries the risk of merely changing one kind of harm for another, not least in confusing conditions like warfare where assessing forseen risks and harms of any sort can be little better than guesswork. But the entire double effect idea, including as it might be modified by Warren Quinn’s distinction between direct and indirect agency, depends upon claiming a sharp and morally significant distinction between forseeing a result and intending it. Some philosophers indeed deny this distinction has moral significance, although the notion of forseeing (rather than anticipating something) clearly suggests limitation in the agent’s power or ability to influence the course of events. However, the refusal to countenance any idea that ‘the end justifies the means’, apparently thereby not permitting the agent’s intending a bad effect2, can also mean refusing to recognise limitation on the agent’s power, not least in any case where the intended good result is to (say) save more lives than would be lost through a prior bad outcome of the same action.

For all that in many ways the double effect idea combines both subtlety and good sense, these problems leave it hard to delineate a range of justifiable warfare and justifiable actions in pursuit of war and war aims which can at the same time, as Walzer intends, hold onto the principle of noncombatant immunity. Moreover, the practical problems hinted at in the opening of this discussion bear directly upon the second major difficulty about the just war idea, namely, the concept of ‘innocence’ itself. In his discussion of Walzer’s ideas, Brian Orend concedes that other writers have attempted – with some force – to challenge blamelessness of civilians with arguments based on payment of taxes or political support for wars, and does not really justify his rejection of these arguments. However, if we do reject such arguments; for instance, on grounds that civilians have no option about paying taxes or may not be consulted about going to war, then can soldiers be at least sometimes exonerated on similar grounds of simply doing what they are told and not necessarily being consulted any more than civilians? In addition to these problems around the scope of innocence there is also the potential ambiguity in the meaning of the word, originally derived from Latin nocere ‘to harm’3, as to whether it means blameless or harmless. In the usual legal application blameless in the specific and limited form of absence of proven guilt is clearly intended. It should be noticed, however, that whilst those versions of a ‘pro-life’ case against abortion which depend upon the innocence of an unborn child seem also to presume that ‘innocent’ means blameless rather than harmless, exception is sometimes made for cases where the mother’s life is in danger or cases of rape which imply that harmless is the operative concept. In the context of justifiable war and noncombatants a similar ambiguity emerges, since the basic idea of ruling out (deliberate) targeting of civilians and, further, making effort to minimise civilian casualties might proceed from either interpretation of ‘innocent’. Yet if the range of legitimate military targets includes such as supply routes and transport, industrial production of military and related equipment; and even fuel and food supplies, weather reportage, research facilities, and so on, the notion of harmless appears foremost since these would plainly involve civilians. Then if civilian command and control centres are to be targeted the focus moves to blameless. The point here is that the precise meaning of ‘innocent’ and ‘innocence’ becomes, on the lines of the abortion case, highly relevant for what targets are legitimate in pursuit of a just war and what are not. Indeed, if blameless is the operative concept then the whole idea of noncombatant immunity threatens to become more a matter of convenience in pursuit of a supposedly simple dichotomy (presuming as it does that non-combatants in general, and blameless ones in particular, can be identified) rather than necessarily relating to the justice of anyone’s casus belli.

Walzer, like other just war theorists before him, is trying to work out an ethical system which avoids either a total pacifism, such as might even rule out both self-defence (Aquinas’ example) and administration of civilian justice, or else collapse into moral tragedy. Tragedy in the sense of conflicting moral imperatives4 will, presumably, always be with us, but it surely makes sense to try to avoid leaving issues effectively unresolved where possible. Not only deontological pacifism which Walzer seeks to avoid but also a deontological bar on even deliberate killing – or injury – of innocents is liable, not least through prohibiting intention of actions with ‘bad’ effects for sake of a ‘good’ outcome, to lead to moral tragedies. One of the apparent merits of a consequentialist approach to ethics is that it seems to offer an escape from moral tragedies. On the lines of a hybrid ethical system which I have tried to argue for elsewhere5, providing scope for strong principles like prohibition on killing of innocents but leaving a consequentialist backstop for especially intractable cases (which could minimise the tragedy problem), I propose a form of practical reason which could cement the grounding for justifable war through consideration of practicalities, not least changing practicalities. It bears repetition to say again that this would be ‘practical reason’ of a quite different kind from Kant’s conception of moral laws which can prescribe what must be done in practical situations.

The argument here begins with a point limited in ethical terms, but subsequently spreading out. Some of Walzer’s critics have objected to his just war theory being based only on the nation state and interstate relations. As a practical point, I concur with these objectors since the global economy and global problems including terrorism, traffic in women and children, torture, and ecology as well as global finance, are spiralling out of the nation-state’s control. Partly as a direct result of that, war is increasingly likely to involve combatants who are not bona fide ‘belligerents’ in the conventional sense. In the future this development would be likely to render Walzer’s theory irrelevant. But any such point presents us with the philosophical theme that an ethical theory such as Walzer seeks, incorporating fundamental values like justice and respect for personhood (of women as well as men), needs to be adjustable to take account of practical considerations including the actual, and most probable future, structure of political organisations and sub-organisations. By their nature, it is hard for deontological – as distinct from virtue based or consequentialist – ethical theories to do that. A deontological approach depends upon precise definitions of just what is good and obligatory (or bad and forbidden) in all circumstances, and it is then hard to make adjustments.

This does not, thus far, necessarily preclude a priori moral arguments even if it already impinges on their practical relevance. The more general practical point, and the one which really matters for restricting (moral) permission for war to a form of justifiable war, in contrast to either pacifism or some idea of martial virtue such as the samurai ethic, is that technology; including military technology, has a profound impact even upon what Walzer would see as ‘thin’ universal ethics.

Most significantly, the ‘martial’ virtues of courage and honour in their application to military service and war have clearly been cross-cultural, being practised as thoroughly in Asia as Europe, in the Near East as the Americas. They were so much part of universal morality in the ancient world that St Augustine felt he had no choice but to recognise Christianity’s accommodation to them contrary to the pacifism of his Christian contemporaries (that being actually a less universal notion). Moreover, at least until the twentieth century, a domestic form of those virtues applied to the smaller association of the family alongside the form applying to the larger association of the state, and still does in some parts of the world. But to incorporate that particular practicality into ethics (including Christian ethics) and then to adjust once again for more recent developments, is to admit that deterrence (to war) in some sense is relevant for ethics.

Neither the ideals of martial virtue or of absolute prohibition on (deliberate) killing and injury of human beings can readily accommodate deterrence as ethically or morally relevant. But in practical terms it is only to be expected that fear of war, not least of the ‘collateral damage’ it inevitably wreaks, will be the greater as military technology becomes potentially more destructive and, with ‘weapons of mass destruction’, destructive to entire communities rather than merely to unfortunate individual persons. This introduces what might be understood as a kind of deterrence, but distinct from the idea of nuclear deterrence employed in the Cold War and still used to justify weapons systems such as Britain’s Trident although against a vaguer and more diffuse threat. But once both thick and thin morality – to use Walzer’s terminology – are seen in more cultural sense, as Walzer himself intends they should be, then a notion of what I will term ‘cultural deterrence’ developing from fear of war and total destruction can be appropriate for moral argument. Further, some of the objections, both moral and practical, raised against deterrence in the orthodox sense are less pertinent in that case. Deterrence in its direct sense as a means to counter a perceived threat naturally involves making a threat of one’s own, and making it understood by potential adversaries that the threat will be carried out in certain circumstances. This was why Barrie Paskins (1982) held that (nuclear) deterrence is immoral because it is the conditional intention to wage all-out nuclear war, although he did not say that necessarily outweighed other considerations. With regard to cultural deterrence, however, although the element of threat is emphatically present it is not being generated by deliberate policy from any quarter, but by experience of human beings then communicated to others, including later generations, who may not have suffered the experience. (Incidentally, this can be an instance of ‘double effect’ in a more palatable form in which a good effect may arise from bad actions, but unconsciously rather than deliberately so. The formation of cultural deterrence since the 19th century has been both brutal and terrifying but like culture generally it is typically unplanned.) Again, if deterrence is understood in a more cultural sense filtering into both thick and thin morality, then the issue of assuming rational behaviour on the part of potential antagonists does not arise in the way it does for specific deterrent strategies. For instance, political and military leaders who might be anxious about domestic weaknesses and challenges can respond to a general cultural fear of conflict without a particular loss of ‘face’ arising from giving way to a particular deterrent threat. This kind of perspective is apt to shift the emphasis in deterrence from defence against aggression, the category Walzer is anxious to allow, to prevention of aggression in the first place by whatever means may be available. But although a response to cultural deterrence must be expected to include working to identify and tackle underlying causes of conflict, like the welter of cultural, economic, religious, and power rivalries in the Middle East for example, there remains the need to respond to and counter a threat. What is questionable in light of recent experience is whether an idea of just war, for instance in the form of ‘humanitarian’ intervention or rebellion, can find a place in that kind of response.

2. Torture

Many of the issues surrounding just war are of ancient lineage although the emergence of deterrence either as a category of justifiable war, or even in the cultural sense suggested above, is linked to developments in technology especially since the Second World War. However, despite its ancient presence torture has entered the scope of overt moral controversy only very recently. That has followed an historical sequence beginning early in the twentieth century with shock as torture, previously looked on as a relic of a barbaric past, reappeared as a regular instrument of modern dictatorships. Subsequently, regardless of statements of human rights beginning with the UN Declaration in 1948 torture has persisted, including by democracies (or, as in Northern Ireland during the 1970s and 1980s practices which might count as torture). As more irregular forms of warfare became even more usual after the end of the Cold War arguments have begun to be put forward, even by Michael Walzer and Seumas Miller, that torture may be unavoidable, at least as a last resort. The case for admitting it is essentially one of preventing still greater harm, especially loss of life, and that is frequently a matter of preventing loss of civilian lives, especially in regard to threats of terrorism. That is to say, permitting torture, even by states where it is supposedly illegal, is being urged to protect those classed as ‘innocent’ in the context of war. Further, it must be acknowledged that use of torture for specific interrogation (as distinct from intimidation of a whole population which probably no philosopher would countenance) will not normally affect those known to be innocent in that sense. However, from St Augustine to date attention has been drawn to the danger of torturing persons innocent in the precise legal sense of not proved guilty of an offence of which they may be merely suspected. (This sense of ‘innocent’ does not carry the ambiguities which apply to the wider notions used in debate about war or abortion.) Yet just because the only possible form of harm to bystanders neither suffering, nor taking direct part in, use of torture itself would be psychological and, indeed, confined to citizens of the state or community allegedly benefiting from the work of their intelligence, security, and related services, it is paradoxically much easier to build up a practical case against use of torture in any circumstances without problems arising about conflicting moral imperatives except, significantly, for those actually involved in use of torture. In arguing against any use of torture even in the fraught circumstances of the twenty-first century where security threats like terrorism are frequently threats against civilians as well as military personnel and, at the same time, moral dissonance is especially apparent in many cultures, I will include considerations often lazily thought of as ‘moral’. However, these considerations, like impact of torture practices on interrogators themselves and public perceptions of authority, are really psychological and sociological and do not in themselves begin from a moral (or ‘normative’) standpoint. They are, however, highly relevant for developing a practical reason argument which may then guide moral thought.

In an effort to leave torture permissible in emergency circumstances both Walzer and Seumus Miller (2005) take up an ethical stance which seems inconsistent. In an interview with Imprints (2003) Walzer refers to his article entitled ‘Dirty Hands’ where he argues that in such a case as his ‘ticking bomb’ example a political leader might be bound to order the torture of a prisoner, but that we should regard this as a moral paradox, where the right thing to do is also wrong. He says: ‘The leader would have to bear the guilt and approbrium for the wrongful act he had ordered, and we should want leaders who were prepared both to give the order and to bear the guilt’. Walzer admits this article was widely criticised as incoherent, but insisted that, on the grounds that ‘extreme cases make bad law’, he was not prepared to rewrite the rule against torture to incorporate exceptions. He put the point thus: ‘Rules are rules, and exceptions are exceptions. I want political leaders to accept the rule, to understand its reasons, even to internalise it. I also want them to be smart enough to know when to break it. And, finally, because they believe in the rule, I want them to feel guilty about breaking it – which is the only guarantee they can offer us that they won’t break it too often’. It does indeed appear incoherent and, perhaps more important, outrageously contrary to natural justice to say that political leaders or those under their command or in their employ should be obliged to recognise an action as morally legitimate, or even obligatory, and simultaneously to say they should feel guilty for doing it, or be punished and/or lose their positions on account of doing it. But that is not the most important reason why this argument fails. If we follow Walzer and Miller – which is roughly what most Western states, including the USA and Britain, are in fact doing – then we create an open season for cover-ups and mendacity of all kinds. Further than that, mendacity becomes close to obligatory on politicians and security services pressed to respect the legal and moral standards prohibiting torture as inviolable, only to then recognise the exceptions without doing so in public. That is to say, those with the direct responsibility are not being permitted to give public recognition to the moral dilemmas they may face. The most obvious problem with the Walzer/Miller position here, and the actual position arising in many states, is not strictly a moral one at all. Rather it includes the ferocious psychological stress on politicians and officers who may be responsible not just for deciding whether or not to allow use of torture in particular cases – where very often time will be of the essence so that a decision has to be made very quickly – but also are being prohibited from admitting to the stress they are under, a situation well known for giving rise to mental problems and even illness. Still more important, and impacting upon the entire civilian community, is the damage such mendacities may do to trust in authority, be it moral or political and be it secular or religious. That means damaging the very authority which security services are being paid to protect.

That kind of point illustrates two very important philosophical ones: (a)The hazard in trying to sustain in theoretical argument absolute principles, i.e., principles not dependent on any ulterior considerations (such as utility or consequences which are often seen as the only alternative available to either a deontological or a theological basis for moral argument), when in real situations the protagonists may not find themselves able to apply the absolute principles in the strict way, or perhaps any way, insisted upon by the theory. (b) There is, after all, the possibility that we can try to resolve dilemmas between conflicting moral values rather than simply leave them as ‘tragic’ or ‘incommensurable’. Any given society or polity may not accept any given moral principles as paramount, but merely to disagree over which is paramount means, at least implicitly, raising the possibility of a different order of priorities. It is in fact relatively unusual for different individuals or cultures to deny someone else’s value is of any worth at all to them, but it is commonplace for them to give it a lower (or higher) order of priority than someone else would do. That is to say, it is commonplace for people to make comparisons between values, even without a common currency to provide a precise measurement of the values, as for example, with security compared to freedom. The fact of comparison in such cases reduces the importance of Buchanan’s argument that tradeable goods or services are the only values which can be measured, as they are the only ones a market can put a price on.

In the case of torture, one possible compromise might be to follow Dershowitz’s suggestion and introduce special torture warrants. Miller’s objections to that might be obviated by special provisions such as torture warrants being issued only by the Supreme Court (with justices on call for emergencies), rather than a magistrate or ordinary judge as would suffice for search or telephone intercept warrants. (The point thus far being that any warrant grants power to set aside ordinary legal protections to citizens or their property.)

But even with a provision for warrants, torture presents a host of extra practical problems. Some of these have already been extensively argued and discussed, but each and every one will bear repetition: (i)The Court would have to define what amounts to ‘torture’, and be recognised as carrying the final authority for that (therefore anyone disputing the Court’s decision, at least on religious or deontological grounds, would presumably be automatically obliged to refuse to accept that authority). In many instances, such as sleep deprivation, noise or stretch positions, length of time is crucial for the degree of suffering and abuse inflicted on the victim. In such cases, quantitative measurement really bears on categorisations of moral and ethical significance. Naturally, the definition would have to determine whether or not threats of torture must be included in their own right – perhaps under the heading of psychological torture; (ii) It has frequently been pointed out, including by interrogation experts, that prisoners facing torture have a huge incentive to lie or misrepresent if they can fabricate a plausible story in answer to questions; (iii) In cases, frequently relevant to the issue about use of torture such as terrorism, some prisoners may be seeking a martyrdom or heroic status which torture can confer upon them; (iv) In an effort to avoid risk to innocent civilians (which is the usual case where torture has been defended, rather than other possibilities), the more straightforward legal sense of ‘innocent’ whilst still merely a suspect has to be set aside with treatment likely to be more abusive than imprisonment – or possibly even execution; (v) As already indicated, availability of torture places extra stress on the interrogators and their employers themselves. There is a real danger that they may be pressured (or ordered) to use torture as a routine procedure to obtain quick results regardless of truth or security itself. Juliette Kagyan points out that, given time, interrogators often find the least abusive method – i.e., patient conversation – to be the most effective; (vi) Allowing torture, including by proxy, constrains foreign policy and puts everyone, including yourself, in dangerous company especially with the growth of the Internet and other fast communication technologies; (vii) Availability of torture places a reverse distinction between political and ordinary criminal activity beyond simply disallowing motive as a legal or moral defence against accusation of a crime. In the case of terrorism, torture endorses a propaganda claim of a special moral status legitimising what are heinous crimes under ordinary criminal law, including murder and bombing with intent to kill others (and their preparation), so that the offenders are simply not entitled to any special moral or legal consideration according to normal standards; (ix) Availability of torture (which is normally illegal) runs contrary to moral education at home, inviting charges of the grossest hypocrisy on part of anyone claiming such education of the next generation is important.

Conclusions

I am fairly satisfied that these points would, in themselves, rule out use of torture even in a dire emergency like Walzer’s ‘ticking bomb’ case where speed of action is essential. But I have quite deliberately refused to include any claim that torture is wrong in itself, regardless of practical considerations such as those outlined above. Even Kant was unable to prove that moral dilemmas are not a real presence in any moral world, including the one we experience in the twenty-first century. Accordingly, in trying to follow the logic of the form of practical reason outlined above, I have attempted neither a normative, nor an a priori, form of argument to make the case being made here, viz., that prohibition of torture needs to take priority over whatever putative protections torture might obtain. But whilst it is true that I forswear any attempt to prove an absolute prohibition on torture by theoretical argument, not least on the grounds that such an ‘absolute’ requires prior acceptance of principle(s) which others may not in fact accept, or, following Walzer and Miller, may feel obliged to compromise in practice, I am happy to maintain in the case of torture that circumstances where the kind of argument I offer would permit it are extremely unlikely to arise.

The case of torture is far from being alone in showing up another claim sometimes made in opposition to utilitarianism to be doubtful in empirical terms, i.e., that utilitarianism (or consequentialism generally) runs contrary to ‘common morality’ because it means trying to count numbers instead of treating persons as being of absolute value. The claim appears to be based on the assumption that common morality never sanctions sacrifice of persons on behalf of some (real or presumed) universal benefit. Would that common morality were so clear! In point of fact, it is not obvious that any common or traditional morality would reject as morally irrelevant the difference between a person in authority being asked to use torture to save one person’s life, and that same person with similar authority being asked to use torture to counter a threat of (say) chemical or biological annihilation of millions. The issue is precisely that it is not true to common experience that no one who refused to sanction use of torture in the first case would not also refuse to sanction it in the second as Walzer’s notion of ‘the common conscience of mankind’ implies. In the latter case I would have to admit that I myself might, in desperation, attempt torture of prisoner(s), knowing full well that it might not work, and that even if successful it would probably leave a poisonous legacy behind it.

I am obliged to accept that the form of ‘practical reason’ I have attempted here for the cases of just war and torture will not yield the precise and certain instruction that some seek for difficult, not to say nasty, moral situations. Yet I hope it will at least meet the age-old problem which has prompted philosophical thought from ancient times; that is, confrontation with the sceptic who simply denies the validity of whatever argument is being employed. It is simply harder to deny the presence of practicalities than it is to establish that only one particular conclusion can follow from (say) the nature of an act such as war or even torture in face of confusing historical evidence as to how people see or respond to such acts.

Notes

1. Cf. Kant’s illustration about the outcome of making promises one does not keep as a general loss of trust on the part of others. From the theoretical standpoint, Kant’s principle remains founded on the deontological law, with consequences or outcomes serving a subordinate role in the reasoning. But we can find here that even if the Kantian edifice were found wanting, a consequentialist form of this illustration would stand on its own merits. In the case of truth telling, the position would be more complex, as in some situations where truth telling carries relatively little moral weight against other considerations, such as avoiding upset or embarrassment to others, ‘white lies’ are acceptable.

2. Even as a matter of psychology, it is hard to be sure whether a distinction between intending something and forseeing it applies in cases where the agent has any degree of control over events. Most often we speak of someone ‘forseeing’ something when the subject is an observer unable to control the outcomes of a given situation, a case clearly not intended in double effect discussions.

3. The Latin phrase Primum non nocere meant ‘First, do no harm’ and as such is still taught as a precept of medical ethics.

4. This sense of ‘tragedy’ employed by moral philosophers and literary commentators (including on Sophocles) is notably different from common usage of the words ‘tragic’ and ‘tragedy’ to refer to unmerited misfortune such as illness or death of loved ones, for example. The key difference in usage is about a degree of responsible choice between two evils, and complete lack of responsibility implied in the common sense of tragic misfortune.

5. Cf. O’Kane, S. G., (1994), Politics and Morality under Conflict, Pentland Press, Ch 9.

References

1. Buchanan, James M., (1989), Essays on the Political Economy, University of Hawaii Press, Honolulu.
2. Kagan, Juliette, (2003), Stanford Encyclopedia of Philosophy.
3. Kant, Immanuel, ([1785] 1998, Groundwork of the Metaphysics of Morals.
4. Mangan, Joseph, (1949), An Historical Analysis of the Principle of Double Effect, p.43.
5. Miller, Seumas, (2005), ‘Is Torture ever morally justified?’
6. Orend, Brian, (2000), Michael Walzer on War and Justice, McGill-Queens.
7. Paskins, Barrie, (1982), ‘Deep Cuts are Morally Imperative’, Ethics and Nuclear Deterrence, Geoffrey Goodwin (ed.), Croom Helm, p. 70.
8. Schopenhauer, Arthur, (1995 [1841]), On the Basis of Morality, Berghahn Books.
9. Walzer, Michael, (1977), Just and Unjust Wars.

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