Ethics at the Boundary Line: Torture

Immanuel Kant distinguished between perfect and imperfect duties. The former are universally obligatory, i. e., allow no exceptions under any circumstances. The latter may have exceptions in some cases or alternative ways of fulfilling it?

Does the rule "never torture" define a perfect duty? Is it a moral absolute? Or is it sometimes morally permissible?

Here we enter the realm of "borderline situations " (Helmut Thielicke, Karl Jaspers) in which the usual rules and norms do not provide clear guidance but require a difficult situational decision in which no choice leaves us at ease.

In this context, one can argue that the rule against torture should not be made an absolute. Few moral principles are. There may be rare occasions in which morality may permit extraordinary means, including torture. This could be argued on both deontological and teleological grounds.

Opponents maintain that no such events occur in real life (the ticking bomb scenario) or are so rare as not to justify any exception to the prohibition against torture. Moreover, even if such emergencies justify torture in that immediate extreme circumstance, one might reason that on the whole the damage to the rule of law and to the global image of the country might still forbid it. Hence on balance it may be better to have an absolute rule that is never violated though it may be costly in some instances, though how costly would make a difference. I tend to fall into this camp.

Nevertheless, the ambiguities, contingencies, and uncertainties surrounding this question create a troubling space in which reasonable people may disagree.

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What is it all About?

When somebody says, "Its not about A, its about B," I usually find it to be the case that it is also about A. Example: Speaking of rape, its not about sex, its about violence. I say it is also about sex. When you hear, its not about the money but about X, check it out; chances are it is also about the money.
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Use and Abuse of Rights Language

These days anything that anybody thinks we need or want is called a right to it. Rights language is overused to the point it loses its power. I won't even try to list all the "rights" that have been claimed in recent years by somebody.

This is a complicated issue, and I do not claim to have mastered the subject either historically or philosophically. But at least the following distinctions might bring some clarity and precision to what in our national conversation is an unbounded surfeit of loose, if not anarchical, talk.

At least three categories come to mind: natural, constitutional, and legal.

Natural Rights are claims we have by virtue of being human. This list would be short and include the fundamentals: life, equality, liberty, justice for all, and the pursuit of happiness. A natural right cannot be established or taken away by civil law. It can only be recognized and protected. We have rights that are "endowed by God" or nature.

Constitutional and legal rights arise by virtue of being a member of a particular society. The former are grounded in the Constitution as determined by the Supreme Court. The latter are legislative enactments not in conflict with the Constitution.

The order of argument be be as follows:
1. There is a need or desire for which legal provision and protection should be given for the good of individuals and society.

2. The need or desire is either Constitutionally required or permitted.

3. If not Constitutionally required or permitted, it should be because it is rooted in something fundamental in our human nature and essential for our fulfillment as individuals and as a community.

Conversation should begin at 1 and proceed to 2 and 3 only when necessary. For example, adequate health care for all can initially argued for on 1. Hence, instead of speaking of a right to health care, it would be better to say that we have a need for health care and a just claim on available resources that should be given legal status for the good of society. The kinds of health care that should be provided have to be negotiated in terms of what a particular society can offer and is able to afford. Universal health care can be argued for on the basis of need, justice, and the good of individuals and society. If one wants to claim health care as a right, then it needs to stated whether this is a natural or constitutional right. Otherwise, it is loose talk that means no more than 1 anyway.

Marriage requires a different formulation. It does not involve costly resources and availability but is a matter of granting legality to certain forms of relationships along with certain formalizing rituals. It is permissible, thought not necessary, to claim that we have a right to form unions with a partner for purposes of reproduction, companionship, and mutual love based on our sexuality that is part of the nature we were born with. All three factors are equal, and reproduction is not a sine qua non.

Moreover, marriage in the primary sense refers to a certain nature and quality of relationship between the partners. Legality is a socially useful way of recognizing and protecting the relationship. This was the basis on which I declared my son and his partner married regardless of what the laws of Ohio say. It would be sufficient to argue-- apart from any natural right--that we have a need and a desire to form such unions. Therefore, governments should recognize and protect such unions legally. (I have previously argued that arguments from nature and natural law are no more effective than any other, since no argument is persuasive for anybody except those who are persuadable by it. These days it is certainly not profitable to "hold these truths to be self-evident." http://www.frontiernet.net/~kenc/law.htm)

The forms of marriage are a matter for each society to determine based on what works based on justice and the good of individuals and society. Gay marriage can be justified on this basis. Polygamy is different in that it violates justice, since if some men have more than one wife, other men and lesbians can have no wife. But if polygamy is permitted, then polyandry should also.

Should older men be able to marry more than one older woman, since they greatly outnumber men? I see no objection in principle, but would it work satisfactorily in our society and benefit the partners without doing harm to society? I don't know, in some cases it might, but if a ninety-eight-year-old man can marry a twenty-year-old woman, then polygamy for older people is worth debating. Since there is no outcry --or tolerance--for polygamy or polyandry, at the moment it is a debate about principles.

This gets complicated, of course, but it would be better to make an effort to sort it all out rather than to dilute rights language by such overuse and ungrounded rhetoric that it becomes practically meaningless.

http://en.wikipedia.org/wiki/Right

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An Appeal You Will Never Hear on a Public Radio Pledge Drive

How refreshing it would be to hear the following on the frequent pledge drives for public radio:

"OK, let's get down to brass tacks here, cut to the chase. All you deadbeats and cheaters out there who listen to public radio but never give a dime to support it: either turn to another station, or send us some money. Got that you shameless freeloaders, you low-down scoundrels and thieves. Call now or go away. Thank you."

My purpose is not to shame the freeloaders but to express the frustration of those of us who make our modest contributions every year on schedule without being asked. Our pledge drive is going on now, and I am weary the same old platitudes, inane observations, and the endless repetition of the obvious. It all reminds me of too many sermons I've heard and of statements by the Pope on his foreign trips urging everyone to be nice to each other and just get along.

http://www.frontiernet.net/~kenc/index.shtml