Counterrevolutionary Meditations

Our own Zippy Catholic has authored a goodly number of posts on this unpleasant, yet timely subject. In a recent post at his own blog, Zippy generalizes the argument of a recent Alexander Pruss piece, which treated of moral reasoning concerning the act of abortion, and applies his conclusion to the now-controverted question of torture:

….when we decide to do something, as a moral matter, we engage in two stages of reasoning. In the first stage of reasoning, deontological reasoning, we determine whether the contemplated act is permissable at all. In the second stage, we weigh the pros and cons of performing the action to decide whether or not it would be a good thing to to do.

The upshot of Professor Pruss’ piece, assuming I follow it correctly (and in any case this is my own conclusion), is as follows: when an act is morally impermissable, it is wrong to even attempt to engage in the second type of reasoning, the “weighing” of the pros and cons of performing the act. To engage in the “weighing” kind of reasoning - merely to ask the question of what the pros and cons mightbe of performing the act, without presupposing a particular conclusion - is to have already presumed that this is the sort of act which can be weighed according to some moral “market value”.

This extends, in my view, to other kinds of “boundaries” surrounding a contemplated act. To weigh the pros and cons of an act is one sort of non-deontological “weighing” of an act. To attempt to determine how close one can come to an impermissable act without actually crossing the line is another form of non-deontological weighing. The process of weighing an act is the beginning of the performance of the act: it is a movement of the will toward the object of the act, though it may not represent the final choice to actually perform the act.(snip)

….Torture, adultery, and abortion are intrinsically evil acts. They aren’t the sort of act which can be weighed against intentions and circumstances or approached as closely as possible without crossing a line. The movement of the will to approach an intrinsically evil act as closely as possible is a movement of the will toward an instrinsically evil act. To merely pose the question is to already have assented at least in part to torture, to abortion, to adultery.

I hope that I may be pardoned for citing a lengthy passage from Zippy’s own argument, which I though necessary as a preliminary to what will follow. What I wish to argue is that the application of this insight to the question of torture, in the specific sense of rejecting the very possibility of a sort of graduated scale, inclusive of a line drawn somewhere, is mistaken, that it yields counterintuitive and unacceptable conclusions regarding other aspects of ordinary existence, and that torture is, while assuredly a grave and inherent evil, not precisely the same sort of thing as abortion or adultery. I hope, furthermore, to suggest, albeit tentatively, possibilities as to what might account for what I take to be the mistake in this reasoning.

It would probably be well to begin exploring the topic by considering the ways in which torture and abortion are distinct as acts. In the specific sense relevant to present controversies, that is, the sense in which the question has arisen within the context of the interrogation of captured jihadis, abortion and torture may be distinguished by the fact that in the case of the former, the act is, essentially, the end sought, while in the case of the latter, the act is merely a means to a further end - the acquisition of information pertinent to the prevention of terrorist attacks. In other words, there is a sort of unity of the means employed to induce abortion and the end of abortion; when a women ingests a megadose of an abortifacient drug, for example, this is not a means to some third thing, but the act of abortion itself. A woman may have any number of a possible infinity of reasons for procuring the abortion; but this subjective consideration is without relevance to the status or nature of the act itself, which is in no way determined by the possibilities it opens for the actor(s).

One might argue that abortion and torture are analogous inasmuch as both may be portrayed as illicit acts performed with further ends in mind; just as a woman procures an abortion in order, say, to ensure that her breasts will not sag after she has nursed (a common reason among the upper classes during the Renaissance, and beyond, one supposes), the torturer might torture so as to obtain the information vital to achieving objective Y or preventing evil X. One might also argue that abortion and torture are analogous simply insofar as both are inherently unjust. Both analogies, however, whatever they might illuminate, tend in my judgment to obscure the fact that regardless of the means chosen for the performance of an abortion, the application of those means just is the act and end of abortion; it is redundant to argue that the specific type of abortion is the means toward the end of abortion. The question, moreover, of a graduated scale of abortion is utterly incoherent, whereas it is far from evident that the same can be said for a graduated scale of coercion and torture.

The same could be said for adultery: to merely look upon a woman other than one’s own wife with lust just is the act of adultery; it is not the means of adultery, but the very performance of adultery, even if a less grievously destructive performance than the consummation of that mental state. This is to suggest that there exists a scale of moral gravity, even if the commission of the act is itself binary in nature. It seems doubtful that the same things could be said with respect to torture. First, because torture, in the present context - excluding, that is, the question of pure sadism - is conceived of explicitly as a means, and means of this type, by their nature, are generally variable, indefinite, and amenable to substitution. They are not necessary, but vary in accordance with variables too numerous to specify. Second, and more importantly, torture itself is, at least to a degree, relative to the constitution, physical and mental, of the victim. Adultery depends upon a mental state which one either does or does not have, and abortion is an act which is either done or not done, ie. killing an infant; torture, the infliction of grievous physical and/or psychological suffering for purposes of extracting information or illicitly bending the victim to one’s will, would seem to be contingent upon the circumstances, not of a threat, real or imagined, but of the constitution of the people involved.

I do not wish to lay any more stress upon this distinction, as it could be argued that, taken in itself, it merely begs the question of the distinctive character of torture. However, there are other aspects of this mortal existence which may be analogized to torture and, when this is done, suggest that the analogy between torture and, say, abortion, is flawed, and that counterintuitive, irrational consequences follow upon a rigid rejection of the possibility of a graduated scale of coercion/torture. It is this line of reasoning which warrants, in my judgment, the foregoing drawing of distinctions.

If it is indeed the case that to pose the question of how far one may go in coercing a prisoner to confess or divulge information is already to have oriented the will toward an evil act, namely, torture, then there exist numerous, perhaps innumerable, ready analogies from ordinary experience. Consider child abuse. We all agree that the abuse of a child is a heinous, instrinsic evil, never warranted by circumstances, and never justified by the ends made possible by the abuse itself. And yet there exists a relevant question: how far may one go in disciplining an erring child, by, for example, confining him to his room without his toys, or by spanking him, without crossing the line over into the realm of abuse? Assuming, of course, an infraction of sufficient gravity, would it be licit to confine the child to his room for an hour? Two hours? An afternoon? Would it be licit to spank him once? Twice? Three times? With an open hand? With a stick? The critical point is that while we might not be able to adequately specify the conditions under which an act of punishment crosses the line into abuse, we believe that the distinction not only obtains, but that it is also coherent to reason about the location(s?) of that line, and that it cannot follow from the ambiguity of the subject matter that any will-to-spank, presupposing as it does that reasoning about moral lines, is by nature a will toward the evil act of child abuse. It seems manifest, that is, that, on the basis of the types of acts that interrogation and the disciplining of children are, it is morally coherent not merely to speak in terms of a continnuum, but to perceive an analogy between torture and child abuse, and between coercive interrogation and discipline. The difficulty of determining the location of a line does not entail either the nonexistence of the line or the illicit status of reasoning about possible lines.

What would be truly counterintuitive would be a type of moral reasoning which tended to yield the conclusion that the impossibility of determining universally valid distinctions between licit and illicit degrees of various acts entailed that all acts amenable to location on a continuum or graduated scale were therefore illicit. There are too many aspects of ordinary life which fall into precisely this category of graduation and degree. We have already mentioned the disciplining of children. We could analogize the training of military and law-enforcement personnel, quite apart from the issue of waterboarding, the attempt to distinguish between the desire to provide for one’s family and rank avarice, the difference between a healthy gratitude for the gifts of food and sheer gluttony, the point at which self-examination on a point of weakness becomes an obsessive scruple, and a virtually innumerable host of examples to the question of the distinction between mere coercion and torture. Absent the ability to reason in terms of such graduations and shades, we will develop a sort of rigorism that, I fear, will first render illicit many of the distinctions upon which ordinary life depends, and then generate its own nemesis in a reaction against such inordinate rigor, much like certain advocates of torture, who conclude that because it is difficult or impossible to draw universal, objective distinctions, there is therefore no such thing as torture per se, and that anything is permitted in the service of the greater good.

As it happens, there is a line of reasoning which may be employed, first, to distinguish between certain types of gradation, such as that pertaining to gluttony, that possess some cogency, and other types, such as that pertaining to interrogation, that only yield the conclusion of impermissability. That line of reasoning concerns the will, and holds that it is the element of coercion that renders illigitimate all discussion of graduations and degrees. It is not the, for example, requirement of standing for hours on end that is illicit, but the utilization of this technique as a means to induce a prisoner to divulge something he might otherwise conceal that is illicit. I suspect that such a line of reasoning cannot be rendered consistent with the training of military and law-enforcement personnel, or the disciplining of children, without serious qualifications, some of which, it would seem, must be consequentialist in nature, but leave that to the side. It is, on this view, the forcing of the will that is illigitimate. Tom, at Disputations, provides a sketch of the position within the context of the torture debate. After arguing that the entire model of a moral spectrum for a disputed action or class of actions amounts to a sort of sorites paradox, and proposing that the superior model would be that of disjoint sets, complete with nifty visual aids, Tom elaborates:

That is, we change the question from, “How much of X is moral?” to “Is the action Y moral?”, where the action we’re now asking about is considered as such rather than as admitting of more or less.

I haven’t though through the process of converting from “action that admits of more or less” to “action as such”. This may be unworkable in particular cases, but then I’m already convinced questions in terms of the former are unworkable in general.

Notice, though, what happens when I try to convert “making a prisoner stand for some period of time” into an action that doesn’t admit of more or less. I’m not sure how to do this without importing some of the intent, making it “making a prisoner stand in order to get him to talk.”

If this is the proper conversion — note the IF — then don’t I have to put “making a prisoner stand in order to get him to talk” in the red circle, which is to say in the set of immoral acts?

I’ll skip the argument for answering yes to that question, and point out the interesting corollary that the “unquestionably moral end of the spectrum” turns out to be an illusion. If no one would say it’s immoral to make someone stand for fifty seconds, then everyone’s wrong, since it can be immoral if the intent is to get him to talk.

It is clearly the coercion of the will, in this argument, which renders forced standing morally illicit. To backtrack somewhat, I do believe that the conversion can be performed without importing some conception of intent, namely, that it is immoral to intend the coercion of the will of another, but this conversion would then be contingent upon a specifiable range of gradations, as well as a means, at least semi-rational, of discriminating between licit coercions and illicit acts, of torture, even if the results were not such as to possess universal validity. However, it should be plain the the status of the will of the individual is in this argument accorded a certain status of inviolability, and that this status becomes the criterion by which the liceity of any contemplated action of the sort we, as a society, have been debating, is determined. It is this which I consider profoundly mistaken, as it makes a hash of the notions of duty and rights.

We should be clear concerning what is meant when it is asserted that it is illicit to coerce the will, which is the only cogent meaning of phrases containing the language, “to get him to talk”. What is meant is that a man possesses a right to the deliberations and determinations of his will, and that, laying aside the obvious exceptions of circumstances which could issue in immediate harm to others, such deliverances are not to be interfered with, such that, if, in the case of a prisoner, he has willed participation in some illicit act and willed, further, not to divulge any information concerning it, he ought not be pressured to alter that determination of will. Which is to state, in a roundabout way, that he possesses either a claim right to be positively defended in at least the possession of the deliberations and judgments of his will, or a non-interference right to be let alone in the possession of the same, a sort of shadow of the duty of the authority not to perform certain actions. In practice, it is doubtful that the distinction would be of any great consequence; the functional consequence of this view will be that authority possesses a duty to defend, whether by action or indifference, the prisoner in the performance of his determination not to cooperate in the resolution or prevention of criminal and terrorist acts. If it is true that the real distinction is not that between torture and licit degrees of coercion, but that between an always-illicit coercion, of which torture is, presumably, merely an extreme manifestation, and a refusal to “get the prisoner to talk”, by which is meant a respect for the integrity of the will of a prisoner, even where this will may well be evil, then it is difficult to avoid the conclusion that society, on this understanding, is subject to a duty to protect/defend the evil in their non-performance of acts requisite to the maintainance of order, namely, confession of evil intentions. This, then, would be to suggest that society is positively obligated to defend the integrity and inviolability of wills ordered to the destruction of the conditions of civilized existence - a suggestion that strikes me as highly dubious.

We are not discussing obvious evils such as the targetting of noncombatants in war; we are no longer even debating what constitutes, or qualifies as, torture. In the case of the former, there are many things a society may do licitly in self-defense, and there are things it may not do; in the case of the latter, it is obvious that, for example, attaching electrodes to the genitals constitutes torture, and that compelling a man to stand for two days also constitutes torture. What is not clear is whether compelling the same man to stand for six hours constitutes torture, or where the line between coercive standing and torturous standing should be drawn. Hence, it is on the basis of this lack of clarity, and the apparent impossibility of arriving at categorical answers to the question of the demarcation of mere coercion and torture, that it is argued that the question ought not be posed as one of degree, or “How far may I go?”, but as, at least implicitly, “Am I attempting to force his will?” This is likely the only way one can reason morally and evade either paralyzing relativism or cynical skepticism on the one hand, or an utter indifference to moral distinctions on the other, and yet, it seems to me, this line of reasoning renders problematic forms of moral reasoning essential to the routines of daily, civilized life, yields unusual conclusions regarding the duties of public authority, both towards the evil man and to the public, and presupposes an ethic and view of the individual that impresses me, if no one else - although I believe similar things have been said of the New Natural Law theories - as unduly Kantian and individualist in nature.

While I have gone on far longer than I intended, I would suggest that there are two aspects of this line of reasoning which cause it to yield these counterintuitive results. First, this line of reasoning seems to presuppose that the object of moral reasoning is always to arrive at clear and distinct, categorical answers valid for all persons, and in all places, at all times; that is, it leaves no place for the art of the casuist, who endeavours to apply the principles of moral reasoning to the data of experience that vary - within limits - with relationships, circumstances, intentions and so on. Moral reasoning, I would suggest, involves more than categorical judgment; it is replete with such judgments, as it must be if it is to conform to reality, but also involves many dilemmas of a circumstantial and contingent nature. Stated differently, moral reasoning involves more than a specifiable list of duties and abstentions; it also involves the less-stringently defined matter of virtue and vice as made manifest in contingent circumstances. It cannot be reduced to a matter of systems or architecture, but is also a lived reality - a lived reality that inevitably involves questions of more and less, of degrees and attempts, however halting and flawed, to draw lines between things that appear similar yet are grasped by the intuition as being somehow, subtly, distinguished.

Second, the line of reasoning concerning which I am expressing reservations presupposes a solicitude for the sanctity of the individual will which, when expressed as the idea that it is illicit to endeavour to coerce the will of a prisoner, even by means that fall short of torture, entails the conclusion that such attempts regard the prisoner as a means and not an end. It is difficult to perceive how this view might not devolve into a formal equivalent of a doctrine of autonomy, according to which the fact of willing trumps both the substance of that willing and the web of obligations in which the subject is inevitably enmeshed as a rational being. That this reasoning evidently leads to the conclusion that the integrity of the will of a prisoner is somehow at least a functional priority over the duty of authority towards society only heightens this concern: this is to unbalance the relationship of the individual to the community of which he is a part, or, at a minimum, has come into relationship with, and to privilege the individual in such as way as to suggest that what is fundamental is not his being-within-relationship, but his autonomous will. Again, it is difficult to perceive how this view might avoid devolution into a less-than-entirely-wholesome individualism; it hardly seems correct to state that a prisoner possesses a right to the untroubled integrity of his will towards the harm of society, or that society is bound by a duty to leave him untroubled in his willful nonperformance of acts necessary to the good of society. Yet this would seem to follow upon the rejection of graduated scales of coercion, and of the legitimacy of coercion itself.

In light of all of the foregoing, and in conclusion, it appears to me as though we are stuck with a measure of ambiguity as to where licit coercion ends and torture begins, and I would even go so far as to suggest that the line may actually be bright, at least on occasion, but that the darkness of our understanding precludes easy discovery. Torture must be illicit coercion, where there is also the possibility of licit coercion, just as child abuse, for example, may be understood as illicit and irrational discipline, in contradistinction with licit, healthy, discipline, and the class of illicit coercions will have to be determined on the basis of some reasoned inquiry as to the identifiable characteristics of grievous bodily and psychological harms, where the acts in question seem to fall short of the obvious, such as the pulling of nails and the attachment of electrodes to genitals. Succinctly and simply, we will have to reason as to how far is too far, and how far is just far enough. Perhaps the process might begin with the observation that regarding as an end in itself a will oriented toward evil can constitute objective injustice; to be an end simply is, as in the case of noncombatants, to be a nonparticipant in the threat with which one is confronted. The moral status of the subject must condition the application of the means/end distinction to him. That is, a particular context, analogous to that of being a child subordinate to his parents or a military recruit subject to the direction of those training him, alters his status, such that what would be illicit coercion, if not torture, absent that context, become licit towards the ends of that particular relationship; one is not, in those contexts, so much a means as a subject being trained to conditioned towards the realization of certain of the ends of human nature as it is expressed in various social settings. In the case of the prisoner, that may be something as simple as learning not to involve oneself in evil. Torture, then, might be treatment tending, by reason of its abusive character, away from the ends of human nature, as expressed in the good of both the subject and object of such evil acts. Discerning the good of human nature, the means by which this is realized in concrete situations, and the means by which this is thwarted, is the task of reason. It is a task of judgment, and this is a learned quality of deliberation.

Zippy's Rejoinder, inclusive of an impressive philosophical duel between Zippy and Lydia McGrew.