Luben on Deontological Ethics and Consequentialism

I need to post a few more quotes. These are excellent and worth reading – still from the first article:

http://lsr.nellco.org/georgetown/fwps/papers/68/

My problem with consequentialism and utilitarianism has nothing to do with how they handle the hard cases and issues. Nor is my preference for deontological ethics based upon the hard cases either. My reasoning (pre-reading this article) has been identical to that of Luban, but he says it much, much better than I do:

“[A] familiar drawback to consequentialism: it always makes morality hostage to evil. ‘Would you torture to stop the ticking bomb from detonating?’ is no different in form from ‘Would you set up a torture bureaucracy in order to make sure you could torture effectively in a TBS?’; nor is it different in form from ‘Would you commit genocide to stop a larger genocide?’ or ‘Would you rape one child to prevent ten children from being raped?’  Consequentialism has easy answers to all these questions – Bernard Williams thought that fact is itself a fatal objection to consequentialism – and its answer is  that enormous evils can nevertheless be lesser evils, and lesser evils can be morally obligatory even though they are enormously evil.  The worse the world is, the worse the behavior that morality countenances to combat it, with no limit to how low we can sink.”

For many of us, however, a system that imposes no intrinsic limits on how low we can sink lacks the essential character of morality – call it the moral attractiveness of acting morally. What would be the point of morality if moral action no longer has any connection with elemental decency?

My argument here is not about personal integrity, that is, the special first-personal character of one’s own values, but about whether a system in which any atrocity, no matter how vile, can be permitted (or, worse, required) can count as a morality.  Consequentialists will not downplay the evils of torture, as I have described them above.  They cannot, because their system demands that they assign accurate weights to consequences.  But, without knowing what the alternatives are, consequentialists will likewise not believe that any moral conclusions whatever follow from identifying the evils of torture.  While their position is not a logical contradiction, it severs the ground of morality – the goodness and evil of states of affairs – from the ground of action.

There may simply be an unbridgeable gulf between the theoretical sensibilities of non-consequentialists, who regard compulsory choice among monstrous evils as morally pointless, the equivalent of rearranging deck chairs on the Titanic, and those of consequentialists, who patiently point out that the rearranged chairs actually would make the doomed passengers a tad more comfortable in their final minutes, and isn’t that a good thing?

Another indicator of the unbridgeable gulf is this.  To the non-consequentialist, recognizing the surpassing horror of torture provides an iron-clad reason not to engage in it.  To the consequentialist, recognizing the surpassing horror of torture provides an iron-clad reason to do anything to prevent it – including committing it in lesser degree.  Thus, in a variant of the TBS in which torturing one captive is the only way to learn the location where ten hostages are being held and tortured – not completely fanciful in today’s Iraq – the same revulsion toward torture that underwrites an absolute prohibition on torture also urges us to engage in it” (29-31; my emphasis).

I would continue quoting, but I’ve probably done too much already.

Rather, I would strongly encourage everyone to at least read pages 34-36 (marked as 35-37 on the PDF reader itself).

But just two more quotes – short summaries of the other two possible interpretations of Shue’s dictum:

(3) Ordinary practices of moral rationality fail in cases where all courses of action are monstrous.  The artificial cases ethicists cook up to control for monstrosity by isolating the right- and wrong-making characteristics of action are misleading.That is precisely because they cover over the monstrousness with a veneer of rationality.

(4) Artificial cases make bad ethics because their very artificiality makes the unthinkable thinkable (31-32, 36).

6 thoughts on “Luben on Deontological Ethics and Consequentialism

  1. Mike,

    The quotes are interesting, as is the entire piece, but I can’t help thinking that Luben’s approach will be understood by people charged with making decisions in monstrous situations as singularly unhelpful.

    For example, I have a friend who is a policeman in a nearby metropolis. He is charged with the one of the gravest responsibilities imaginable: handling stand-offs with armed individuals.

    He has a wife whom he loves, as you and I do. He has children who wait for him to come home from work, as I do.

    In the field, he has had to deal with cases of suicide-by-cop. He knows what it’s like to be shot at in the hopes that he will shoot to kill in response.

    He also has a deontology he follows with guidelines about when to shoot to kill and when not to.

    He would agree that there are cases where all courses of action are monstrous. I know that. We’ve talked about it.

    But as Dershowitz suggests should also be the case with the respect to the use of non-life-threatening forms of torture, he does not, I repeat, he does not, see the choices he makes in those situations as purely “personal.”

    They are far more than that. The choices he makes are, in his eyes, embued with rationality, however controversial that rationality necessarily is.

    The approaches of Shue and Luben, it seems to me, can be safely ignored by officers of the law. The latter do well to stipulate a rationale for the monstrous choices they make in monstrous situations.

    1. The approaches of Shue and Luben, it seems to me, can be safely ignored by officers of the law. The latter do well to stipulate a rationale for the monstrous choices they make in monstrous situations.

      It depends on whether we’re talking about shooting or torturing. Luben and Shue are talking only about the latter, not the former. I don’t think that I would place your police friend and his situation in the same category as torture. I think that these sorts of questions cannot be dealt with with one stroke. I would deal with your friend’s situation separately from torture and I would deal with questions of Just War Theory as separate and distinct from both of those.

      And I think that is one of Luben’s points. When we deal with the monstrous, there is not easy mathematical formula that provides the moral or ethical answer (consequentialists often seem to attempt to provide such a formula). Perhaps we can make a rational decision in such monstrous situations, but I’m sure we all can agree that the situations themselves are, and should always be viewed as, monstrous and irrational.

      The other issue here is that your friend legally is on the right side of the law whereas the person who commits torture is on the wrong side of the law.

  2. As far as international law with respect to torture is concerned, it allows for exceptions:

    “Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would … be prejudicial to the security of such State … In each case, such persons shall nevertheless be treated with humanity” (GCIV Article 5)

    According to legal experts, under such conditions, “treat with humanity” allows the infliction of pain and suffering so long as it is not life-threatening or severe enough to have permanent negative consequences on the interrogated person’s health. “Permanent negative consequences” is not defined as one might think. After all, mere detention for a period of months or years almost necessarily has “permanent negative consequences” on a detainee’s health. Yet such is allowed under US and international law. Legal counsel, however controversial – and it should be – authorized the waterboarding of the mastermind of 9/11.

    More generally, the Clinton, Bush, and Obama administrations all opted to preserve the right not to follow international law when national security is at stake.

    For the rest, the calibrated use of violence in interrogation is one thing; in an armed stand-off another; in war generally, still another. Agreed.

    But when lives are on the line, and the only way, possibly but not certainly, to save lives, is to harm another person or cause the death of another person, that is the definition of a monstrous situation in my book.

    It is the same one that Bonhoeffer faced. He chose, and I don’t think it was an irrational decision, to participate in a plot to assassinate Hitler. By definition, an assassination contradicts the rule of law. But it is still justifiable in some instances.

    What I resist is the conclusion that decisions to do something or not in such situations, something legal or illegal, are “irrational.”

    1. I was thinking about US law, as enacted by Reagan, Clinton, and McCain (the last one was intentionally ignored by Bush, who decided he could place himself above the law).

  3. Which laws did you have in mind? The mention of McCain having enacted US law is unclear; perhaps you have a bill in mind that he sponsored in the Senate.

    In any case, it’s true that the Bush administration flouted US law in some areas, the spirit if not the letter. I think that’s true with every past Administration. Roosevelt’s administration is particularly famous for having flouted decisions of the judiciary branch.

    It’s inaccurate to put the Bush administration in a special category in this sense. My goodness, no one even wants to know how many things the Obama administration is doing without a proper legal framework, in order to get the economy up and running again. This was already true in the late Bush administration. But the rule is, once again, you do what you have to do.

    I’m not sure there is much to the demonization of the Bush administration from a historical point of view, except insofar as it indicates ideological preferences. And yours are just as defensible as anyone else’s. Most people I know who are Obama supporters think that he is on the side of the angels. Most Bush supporters I know thought he was on the side of the angels. My own conviction: that there are no political parties on the side of the angels. The angels, the real ones, are free agents.

    1. yes, I was referring to the bill he sponsored. Bush appended a note to it when it passed stating that he did not view it a constitutional and, therefore, did not apply to him.

      Luben helpfully documents the ways Bush’s administration sought far and wide for loopholes:

      http://www.washingtonpost.com/wp-dyn/content/article/2005/11/25/AR2005112501552.html

      As for Obama, its true, he’s done his share of legal circumvention in the past months, but that doesn’t excuse Bush. “But he did it too” is never a good argument for validating someone’s actions. Personally, I’ve considered the past two presidential elections to have been loose-loose situations regardless of who won the election. I originally had high hopes for Bush in 2000. I just hope Cheney never runs for office…

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