Monday, November 12, 2007

Moral Sacrifice and Bitter Deserts

Jeremy Pierce suggests that there should be legal loopholes to allow torture in those rare (ticking time bomb) cases where it could be morally justified. (Similarly for genocide, terrorism, and other such evils we would normally treat with a blanket ban.) I think that's a bad idea, as loopholes tend to be widened and abused, so the end result would be more legal cover for immoral torture. A better way to look at it is this: if an end is worth torturing someone for, then it's worth going to prison for. It's actually a good thing that the decision-maker burdens some of this cost, since it provides a much-needed cautionary incentive. They won't engage in illegal torture unless they really, really have to.

For similar reasons, it's important that Civil Disobedience be punished by the law, no matter how sympathetic we may be. Sometimes, right actions ought to be punished. It's unfortunate. But not as unfortunate as the alternatives (excessive torture, general lawbreaking, etc.).


  1. I think a person who saves the country from a ticking timebomb will get a loophole generated on the fly.
    Lets say some officer saves the world from the release of a super ebola virus (a pretty indisputable good) via some major breach of the normal law.

    Imagine the trial being televised around the world, the legal system would risk complete collapse if it convicted him.


  2. I suppose you don't need a violation of the legal system to spare the hero. There is always the pardon. But it's hard to pardon yourself, so if you're at the top you can't depend on a sitting chief executive to pardon you. You have to hope your replacement will do so. I have to think about it, but I'd consider the pardon as providing the kind of loophole I care about. I suspect I'd be reluctant to think of that as satisfying exactly what I want, because I actually think the pardon is too open in most cases, at least in the U.S. It has no safeguards except for the populace to get mad at the pardoner and vote for other people, which has even less significance in a term-limited situation in the final allowable term.

  3. I can't imagine how there can be that mixture of right and wrong in an act that is under all other circumstances described as indisputably wrong.

  4. The pardon is an issue in the US because they are granted for political reasons without any new evidence. With that kind of anomaly in the justice system there is probably no effective way to prohibit torture at all.

    I think a bigger concern is that, if you are torturing someone and you know you'll go to prison for it, why not kill them afterwards?

    You already believe they're bad and probably deserve death and it significantly improves your chances of getting away with the torture especially when you can use the resources of the military to dispose of the body and other evidence. The only downside is a longer sentence which may not be a big deal if the torture sentences are already fairly long.

  5. It's rather like countries that have constitutional provisions for transferring most power from the legislature to the executive in states of emergency or when the legislature votes to accept martial law. It sounds like it's a preparation for bad circumstances; but it guarantees that in the long run the democracy will become a dictatorship.

    The issue of pardon in the U.S. is an interesting one; the Founding Fathers very deliberately set it up so that it could be applied to legitimately convicted criminals, of any crime, without any new evidence. (They did not, in other words, see it as a last resort of the innocent, but as a means of setting genuine criminals free.) They are very explicit about this; they took it for granted that there should be room in the judiciary for setting free criminals who, despite having violated the law, were unfortunate 'in a higher degree than they were criminal', and that this should not be restricted so that anyone who was unfortunate could appeal for mercy, regardless of their circumstances. Thus Hamilton explicitly says that the reason the President should have the power of pardon is so that it will be less restricted. And everyone assumes that a judicial system with this unrestricted power of pardon is superior to one without it. (Some of them follow Blackstone in arguing that pardon should be applied rather widely, because if it is not it encourages judges not to follow the letter of the law.) It's interesting that it's uncommon to find people with this view today.


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