Thursday, May 5, 2011

Asking too much of morality, con't

Alex writes:

I remember a conversation I had with a friend of mine a few years ago, regarding ticking-time-bomb-torture. We were discussing the legality, not the morality, but there's some crossover. My opinion was that torture should never be legal, but that if the situation really demanded it, someone in the right position should just do it anyway. If the situation were really so dire, shouldn't there be at least one person willing to risk the consequences to their own life? The idea to me was that the legal code should embody the principles that we stand by, but not literally define the bounds of our actions. That's one of the advantages of living in a lenient, humanisitic government: we leave room for the fallibility of the laws themselves.

Anyway, he thought that this was bizarre, to consciously build a set of rules into our government that would `enforce' the wrong thing in certain explicit circumstances.
I don't see why your friend should think this was bizarre; it seems to me to be very common. Take, for instance, the law against stealing bread. Even if you are starving it is illegal for you to steal the bread. And yet, if your family was starving, and you had no other options, surely the moral thing to do would be to steal bread to feed them. And yet, you couldn't simply codify into law an exception that says you can steal bread if you are hungry: universally applied, you would essentially be legalizing bread riots, and would have no end of trouble in determining the legal definition of "starving". Of course the pragmatic thing is to keep the law as it is, with no exceptions, and to perhaps take other measures to prevent people from being in the position of having to steal bread in the first place (e.g., a food stamp program). THEN on top of this, as a final recourse, build into your technocratic legal system plenty of room for ad hoc leniency by adding such elements as a trial by jury or judicial discretion during sentencing (hiring nice cops wouldn't hurt, either).

I think what applies above applies to torture law, as well. The problem is that even if you only legalize torture in some explicit circumstances, there will inevitably be "torture creep", and you will start seeing torture in non-ticking-time-bomb cases, as well (and in fact, this is precisely what happened with the torture programs under the Bush administration). Better to keep the law as is and focus on the practical problem of making it so that we will never be in a ticking-time bomb scenario (many torture apologists would say that torture is justified in preventing the ticking-timb bomb scenario. But there's torture creep already!).

So, yeah: I think we're in agreement...