Imprudential Judgements

May 26, 2006 § 11 Comments

Some people seem to be under the impression that I don’t think a decision to go to war is a prudential judgement. That is a misunderstanding. A decision whether or not to go to war is a prudential judgement, and it is a prudential judgement which must necessarily be made by the competent authority in order to be just. That means, among other things, that it – the decision to go to war itself – is a prudential judgement that is not made by the Pope.

What I disagree with the George Weigel faction of the pro-war Right about isn’t whether or not going to war is a prudential judgement which must be made by the competent authority. What we disagree about is what that entails. Contrary to what George Weigel implies (at least equivocally), “prudential judgement” is not a code phrase meaning “there is no right answer”, or “there may be a right answer but we can’t know what it is”, or “there may be a right answer but George Bush is in a privileged position in determining what it is, so shut up”.

When talking about abortion the Church teaches that a decision to have an abortion is always evil. It is not a prudential judgement: that is, the moral status of the act does not depend on any surrounding facts or circumstances. A decision to go to war is a prudential judgement: that is, it’s moral status does depend on surrounding facts and circumstances.

But just because the moral status of a particular act depends on surrounding facts and circumstances, that does not mean that it is impossible to know the moral status of that act. “Prudential judgement” is not code for “shut up, you can’t possibly know that this act was wrong”.

Veritas, Baby!

The Bus Stops Here

November 2, 2012 § 28 Comments

There are a number of layers to what I think has been established when it comes to voting in mass market universal suffrage democratic elections, like our upcoming Presidential election. People tend to get off the bus at whatever stop doesn’t make them feel uncomfortably sociopathic: nobody likes to be that last lonely person on the bus, disembarking in that barren old tumbleweed town at the end of the line after a long and arduous ride. But since these conclusions have been established sequentially, the more uncomfortable conclusions don’t act as a reductio of prior conclusions: just because you don’t like the final stop or the next stop, that doesn’t invalidate the previous ones.

So welcome aboard!

What the Bishops have focused on (and what I also focused on years ago here) is the first and by far most important bus stop: avoiding mortal sin, the most pervasive form of which, in voting, is formal cooperation with evil. Once our cooperation isn’t formal (or proximate material, but we don’t discuss that much), whether or not we ought to do it becomes a prudential judgement. Avoiding formal cooperation with evil means getting our intentions right; and since most peoples’ intentions are (rightly or wrongly) focused on possible election outcomes and their implications, that is where the focus lies. The good news is that most people who are even bothering to read this can make it here.

The next stop is coming to the realization that prudential judgement isn’t code for a subjective triumph of the will, despite the fact that right liberals (who are generally called “conservatives”) like to use it that way. This mirrors the way their left-liberal cousins use “conscience” as a means to avoid subjecting their views to objective evaluation. Neither “prudential judgement” nor “primacy of conscience” is code for “my subjective assessment is above criticism and can’t be objectively wrong”. This is probably one of the longest standing themes of this blog.

Beyond that comes the realization that it is simply false to suggest that the Church has “granted permission” in some blanket sense to vote this way or that, and that contrary to what is commonly suggested, voting is not morally mandatory. The Church has given guidance in various ways and with varying degrees of Magisterial authority (or not, as the case may be) on how to avoid formal cooperation with evil; but once we have managed not to formally cooperate with evil making a sound prudential judgement based on true premises is up to us. The fact that the Church hasn’t explicitly given further guidance on how to make that prudential judgement in a way that satisfies the cravings of those who want their decisions to be made for them does not constitute evidence that one may simply do as he wills.

Further down the line comes the realization that mass market universal suffrage democratic elections are not merely a matter of choosing what outcome we prefer. They are game-theoretic contests and civic rituals with all sorts of history and implications, most of the consequences of which obtain no matter who wins or loses. Right reason requires us to take this into consideration. The Church gives no guidance on game theory, as something outside of its charism, and explicitly disclaims expertise on what constitutes a good form of governance. This is a huge barrier, and a lot of folks get off the bus before this stop. There is tremendous resistance to focusing on anything other than what outcomes people think are best, or “least evil”. This is in part because of that (essential) initial focus on avoiding formal cooperation with evil, which most definitely does require us to take outcomes into consideration.

Following that is the realization that because our personal, material influence over the outcome is literally negligible – our personal signals are well beneath the real world noise floor of the process – a genuine, objectively correct evaluation of voting under the principle of double effect (we’ve already assumed material, not formal cooperation with evil here) requires us to consider primarily the outcome-independent effects of our personal acts, since our personal acts effectively have no material outcome-dependent effects. Voting in mass-market universal suffrage elections is necessarily an idealistic act: it literally, in principle as the kind of act it is, cannot be a pragmatic act. It is literally irrational, an act which goes against right reason, to vote for President (or other national office or mass market referendum) under some pragmatic “vote to limit evil” calculus based on weighing potential bad outcomes against worse outcomes. Even more people get off the bus here.

Then by applying a concrete understanding of the nature of voting in modern mass-market universal suffrage elections to all of that, I conclude that a proportionate reason to vote in our current circumstances does not exist: not for anyone, because the outcome-independent considerations apply to everyone, and even if there were an exception or two through some loophole in some argument somewhere, the near-universality would preclude the act because of scandal. In fact I think the scandal at the very first bus stop – the fact that the great majority of people formally cooperate with grave evil when they vote – is sufficient to preclude any proportionate reason for anyone who has gotten this far to vote. Just about everyone is off the bus by now.

I do qualify the result in one way: if a person has a completely ulterior motive for voting – say a girl he wants to date won’t accept a date unless he votes or whatever – then he may (assuming it doesn’t involve doing evil in a similarly ulterior way) have a proportionate reason. It is for this reason that some radical change in voting laws – say a mandatory requirement to vote or face a fine – could easily change the prudential calculus. It is for this reason that (mass market) voting is disanalogous to paying taxes, serving in the military, jury duty, running for a local school board, or any of thousands of other possible civic acts: a prudential judgement proceeds based on the consequences of acting, and this entire analysis, once we’ve gotten past the initial step of avoiding formal cooperation with evil, is a prudential analysis. I can’t draw some bright boundary of how every possible prudential judgement of every possible civic act is going to come out: they each have to be made in their own right.

I’ve dealt with other various objections that come up. In the spirit of previous grand series of posts here at Zippy Catholic, I will list those objections with links to their refutations in this post, following the break. You may have to read the comment threads to get the full gist of the refutation. I’ll update the post and list if and as needed.

« Read the rest of this entry »

Virtue’s silver medalist

October 31, 2012 § 6 Comments

If you’ve come this far with me, there is good news when it comes to discerning what to do about voting in national elections, and I’d be remiss in not sharing it with you.

The good news is that when people say in an unqualified way that it is a mortal sin to vote for X or Y, they don’t know what they are talking about.

Mortal sin requires knowledge, full consent, and grave matter. As far as I can tell, the only action in voting in a national election which could possibly involve all three of those things is formal cooperation with grave evil.

All of what we’ve been discussing for the past few weeks has involved the question of whether or not there is, objectively, proportionate reason to vote for a particular candidate or to vote at all, given that doing so involves remote material cooperation with evil. If you’ve been following along, you almost certainly know by now how to avoid the trap of engaging in formal cooperation with evil. Formal cooperation with evil is almost certainly, by far, the most pervasive moral problem when it comes to democratic elections; and the Bishops’ preaching on how to avoid formal cooperation has probably helped more souls by far to avoid mortal sin than any collection of blogs about making the actual prudential judgement that follows after.

Furthermore, whether you agree with me or not in the specifics, you have doubtless done your best – as have I – to exercise right reason in coming to the conclusions you have reached. If you and me, we still disagree, that means that one of us must be wrong. It could be you, and it could be me, or it could even be both of us; and I don’t think it is me (else I wouldn’t argue as I do: that is just the nature of disagreement). It is important – it is in fact doctrinal – that we must not equate the true good even with evil that is the result of a non-culpable error in judgement. Therefore we absolutely must not adopt the morally relativist position that it is OK in some unqualified sense for me to not vote and for you to vote as you choose: it isn’t.

It is possible that the evil done as the result of invincible ignorance or a non-culpable error of judgment may not be imputable to the agent; but even in this case it does not cease to be an evil, a disorder in relation to the truth about the good.

So if we disagree, one of us may be right and at least one of us is wrong. But odds are strong that if we’ve gotten this far together, whatever error in judgement that remains – and one must remain, as long as we disagree – is a non-culpable error. In the end we can only do our best. In the end you need to make up your own mind, and as I try to regularly remind people, it would be the height of silliness to place too great a moral weight on the pontifications of an Internet clown named Zippy. If my arguments stand the test of your own reason, great. If they do not, well, I think you are wrong, but it isn’t me that you have to answer to. And as long as we can all stand on virtue’s podium I’ll be as happy with the silver medal as with the gold.

No, you don’t have to vote

October 19, 2012 § 3 Comments

I’ve posted about the Catechism’s rather mild exhortation to vote before.   Quite a few people seem to interpret both the Catechism and Faithful Citizenship as if they constitute a categorical command to vote always and everywhere, no matter what historical cul-de-sac we happen to find ourselves in.  Sure Faithful Citizenship is just a USCCB paper of dubious Magisterial status, so we can ignore it; but the Catechism after all is a universal teaching document.  It applies to the citizens of Banana Republics, dictatorships with only one name on the ballot, the good old U S of A, and everywhere in between.  So golly, isn’t it dissent from the Magisterium to (gasp) exercise prudential judgement in deciding whether or not to vote for Saddam?

No, it is not.

As the papal encyclical Veritatis Splendour puts it:

In the case of the positive moral precepts, prudence always has the task of verifying that they apply in a specific situation, for example, in view of other duties which may be more important or urgent.

(Emphasis mine)

No, you cannot invoke Magisterial documents as a way of avoiding the question of whether or not to vote, and whom to vote for.  It is always our task to use right reason to verify that a positive precept – including the positive precept to vote as a derivative throwaway example of a civic act, a commonplace  example of the general precept to act for the common good which is not limited to the three examples that the Catechism places in the same sentence – applies right here and right now.

If you don’t agree, we can play the time-honored Catholic game of “my document has greater Magisterial authority than your document.”   But rather than playing ping-pong on a hermeneutic of discontinuity, I suggest that it would be wiser to interpret the lesser-authority Catechism in the light of the greater-authority Encyclical.

Thespians and the HHS mandate

September 24, 2012 § 23 Comments

An intrinsically immoral act is a deliberately chosen behaviour which is objectively – the behaviour – evil. In order to know what behaviour is chosen (the “object”) we need to see things from the perspective of the acting subject; because it is possible for the acting subject to be mistaken about the objective facts. If he is mistaken about the objective facts then his third-party observable behaviour isn’t what he actually chose. The object of an act is the objective behaviour actually chosen by the acting subject, so once we know what objective behaviour the acting subject actually chose – which can be different from what we observe as a third party either because there are non-material objective facts that we don’t observe or because the acting subject is himself mistaken about objective facts that we know – we can evaluate the moral species of his act.

An intrinsically immoral act is always an action performed by the person himself: it is his own deliberately chosen actions which we evaluate morally. His intentions are the subjective meaning he assigns to his act: the things he desires from his behaviour versus the things he wishes were not intrinsic to his behaviour or extrinsic effects of it. Intentions do not enter into moral evaluation of the object. (It is possible of course for non-intrinsically immoral acts to be evil because of evil intentions, or also because of circumstances).

Formal cooperation, on the other hand, is a matter of how our own intentions stand in relation to someone else’s act. A woman who procures an abortion does not (generally) actually perform the abortion herself. The actual concrete action is performed by the abortionist. However, since the woman who procures an abortion – makes the phone call, shows up at the appointment, etc. – intends the evil action performed by another person, she is guilty of formal cooperation with evil. Strictly speaking she has not performed an intrinsically immoral action herself. An actress on a “reality” show who pretends to make the call and show up to the appointment is not (necessarily) guilty of moral evil, and certainly is not guilty of moral evil as pertains to procuring an abortion. She doesn’t actually intend to procure an abortion: she is therefore not formally cooperating with an abortion. (We will set aside the complex relations between acting, joking, and lying, which is another matter entirely). However, if the person “acting” as the abortionist on the “reality” show actually performs an abortion, he obviously would be guilty of moral evil.

So the distinction between an intrinsically immoral action and formal cooperation is pretty clear, in my view. We should expect morality at bottom to be pretty clear and easy to understand, especially since St. Paul and Christ Himself have admonished us to be as little children as far as evil is concerned. It is true that at times we encounter genuinely puzzling cases “on the margins”. But the great majority of supposed moral conundrums arise, in my view, from the fact that there are just lots of clearly wrong actions that we are uncomfortable condemning as morally wrong.

This brings us to the question of compliance with the HHS mandate, and whether such compliance is formal cooperation or material cooperation with evil. Material cooperation is where we cooperate with another person’s evil act through some morally acceptable (taken in itself) action of our own, but we do not intend that other person’s evil act. A canonical example is of the commanding officer ordering his troops into the breach: this cooperates with the enemy’s action of killing his men, but the commanding officer obviously (unless it is a David-Uriah-Bathsheba situation) does not intend the killing of his own men. In fact his own act will be more successful if the enemy fails to kill any of his own men: clearly a case of material cooperation with evil with unintended bad effects.

There have been some recent articles bringing up the possibility that compliance with the HHS mandate is formal cooperation with evil, and therefore simply impermissible. See here and here, for example (hat tip Scott). I commend the authors of those articles for bringing up the point. All too often the questions of intrinsic evil and formal cooperation are simply glossed over, assumed without even a hint of an argument, so we can jump ahead to what the author wants to do: apply the principle of double-effect. Because once we’ve determined that an action is neither intrinsically evil nor formal cooperation with evil – that is, once we’ve determined that an action is material cooperation with evil – then its moral status becomes much more debatable.

Even once we arrive here I think there is a tendency to gloss over the requirements for licit material cooperation with evil: that is, the requirement that the material cooperation with evil must not be proximate and it must pass all of the criteria of the principle of double effect. The just war doctrine is one of those areas, where the fact that prudential judgement is involved in applying double effect is often treated as if it were the same as concluding that a particular decision to wage war cannot be determined to be categorically wrong based on objective, well known facts.

But here I will stop short of further discussion of justifying material cooperation with evil. The question on the table is, is compliance with the HHS mandate necessarily formal cooperation with evil? And while I strongly commend those who raise the question for raising it I think the answer is most likely that no, compliance with the HHS mandate is not necessarily formal cooperation with evil. I do have an important caveat in the closing paragraphs of this post, however.

I use the term “necessarily” because it is always possible to formally cooperate with evil, even without doing anything at all. Someone who in his own head says “good on her for getting that abortion” or “good for those people providing contraception” or “good for that judge clearing the way for Terri Shaivo to be starved to death” or “good on Bush for bombing that restaurant full of towel heads” has formally cooperated with mortally grave moral evil: he intends the evil act of another person or has shared in the evil intention of another person, and is morally condemned by that intention.

The plight of an employer faced with complying with the HHS mandate is similar to the plight of a legislator faced with a bill that restricts more abortions than are restricted now, yet still includes some exceptions – say the usual dark triad of rape, incest, and life of the mother. Evangelium Vitae tells us that not only is abortion itself intrinsically immoral; it is also morally wrong in itself to pass laws explicitly authorizing any abortion. It follows (my inference) that a legislator who specifically proposes the three exceptions in law, even if only as a means to the very laudable end of increasing legal restriction of abortion, does evil. You can’t specifically propose the three exceptions without intending the three exceptions as a means to some end: formal cooperation with evil. On the other hand, Evangelium Vitae also tells us that a legislator can licitly support such a bill, so long as his absolute rejection of all abortion – including by inference the three exceptions – is explicit and well known.

The situation with the good pro-life legislator is that he faces an omnibus choice: he does not support the three exceptions themselves and did not propose them himself, but if voting for the bill results in an overall better state of the law it is acceptable for him to vote for the bill. Similarly, the good employer does not support the provision of contraception and did not propose it himself. But he also faces an omnibus choice, where every option he chooses has bad – though unintended by him – consequences. It would be formal cooperation for him to propose and support evil provisions in the health insurance plan himself, as a means to any end; but it is not necessarily formal cooperation with evil for him to support the provision of health insurance that has many good benefits, even though it also provides, literally against his will, the material means for other people to do evil things.

There is a certain danger in this kind of thinking though. It is one thing to support a bill which increases restrictions on abortion across the board, even while retaining exceptions proposed by others (who are necessarily employing gravely evil means in so proposing, despite in some cases laudable ends). It would be another thing to support a bill which trades off restrictions: one which (say) introduced a previously closed exception for rape but closed an existing exception for incest. And it would be another thing still to trade off incommensurable evils: say, to further restrict some abortions while mandating sterilizations of certain individuals. It is far from clear that these “lesser of two incommensurable evils” calculations can avoid formal cooperation with the evil actions deemed “lesser”. I cannot therefore definitely conclude that compliance with the HHS mandate is not necessarily formal cooperation with evil (though I expected to conclude that when I started writing the post; so there you go).

If we conclude that compliance with the HHS mandate is not formal cooperation with evil, does that end the discussion? Not at all. As the cited articles point out, this is a discussion which must be had before it makes any sense to even begin analyzing compliance with the mandate as material cooperation with evil. If compliance with the mandate were necessarily formal cooperation with evil that would end the discussion right there: noncompliance would be morally obligatory.

Blessed Pope John Paul II on the death penalty: less development than meets the eye

September 7, 2012 § 13 Comments

In a thread over at the Orthosphere, a commenter posted an excerpt from the Catechism of the Council of Trent.   The whole section of that document on the fifth commandment makes for wonderful reading, and those who either appreciate or deprecate my posts on killing the innocent would be well served to read it.

Of particular interest here is the part under the heading Execution Of Criminals:

Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.

(Emphasis mine).

The Catechism promulgated by Blessed John Paul II reads as follows:

2267 Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm – without definitely taking away from him the possibility of redeeming himself – the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically nonexistent.”

Much hay is made over the supposed novelty of restricting the licit use of the death penalty to cases where it is “the only possible way of effectively defending human lives against the unjust aggressor”.  If I had a nickel for every time some Catholic has claimed that this represents a major rupture from the traditional teaching I’d have, well, a lot of nickels.  But from where I sit it doesn’t look like much of a development, given that the State’s legitimate power to inflict the death penalty arises – according to Trent, and when and only when it is also a just punishment – from a mandate to “[preserve] and [secure] human life.”

The third paragraph from the Catechism I include for completeness.  It clearly represents an expression of a prudential judgement regarding a factual matter of practical capabilities, not an expression of doctrine.  I’m dubious of the proposition that the modern State actually is capable of “rendering one who has committed an offense incapable of doing harm”, as long as we consider fellow inmates to be human beings who ought to be protected from harm.   So I think the scope of the applicability of this non-development of doctrine is debatable.

But as I mentioned in the Orthosphere thread, it doesn’t strike me as all that unreasonable to suppose that in addition to the burden of proving guilt and punishing justly charity lays upon us – that is, upon the State – the additional requirement of resorting to the death penalty only when it is, in addition to being just punishment, necessary to do so for the protection of society.  That especially makes sense in the light of what Trent tells us about the source of the State’s just power to inflict death as a punishment.

Semantic Self-Immolation

July 9, 2008 § 39 Comments

Apparently, someone who willingly takes up arms in a war in order to ingratiate himself to war-supporters is a ‘conscientious objector’ to that war. Oh, and ‘torture’ is a Randian anti-concept. And since a decision to wage war is a prudential judgement, there is always room for legitimate disagreement and only the President can say whether the Iraq invasion was just.

Have I missed any important ones?

Hat tip to Bill Luse, for predicting where this discussion had to go.

Ultramontane Moral Relativism, Again

June 28, 2008 § 18 Comments

Nobody should make the mistake of thinking that Catholics should believe that the Iraq war was unjust because the Magisterium said it was as a particular judgement. In fact the Magisterium said no such thing, but even if she had, one should not believe it for that reason. That is ultramontane nonsense of the highest order.

The Iraq war was surely initiated unjustly, because the manifest facts do not conform to the Just War doctrine. But the notion that Weigel and company were wrong because they did not share in the prudential judgement of the facts as understood by the Magisterium is errant nonsense. The Magisterium herself claims no special charism, indeed expressly disclaims any special charism, in the assessment of such facts.

Weigel and company were wrong because their arguments depended on premises obviously counter to manifest facts combined with a self-serving (mis)interpretation of the JWD. They weren’t wrong because their opinion conflicted with the Magisterium on a particular judgment regarding the actual justice of the war.

The problem for those who supported invading Iraq isn’t that the Magisterium says they were wrong on the facts. It is that the facts say that they were wrong on the facts.

(This post is a slight edit of a comment I made in this thread)

Hitler and the Lottery

June 12, 2008 § 49 Comments

There has been a lot of resistance and confusion revolving around my use of the terms “never” and “miracle” in recent discussions both here and in Lydia’s thread at What’s Wrong with the World. I don’t think my understanding of “miracle” and “never” are wrong, but lets re-frame the discussion in a way which takes that off the table.

I will assume for the sake of this argument that voting for Hitler is (minimally) remote material cooperation with evil.

Suppose they handed out lottery tickets worth a one in one trillion chance for a huge jackpot when you vote for Hitler. Someone might propose that it is morally licit to vote for Hitler under the prudential judgement that if he (the voter) wins the Hitler-lottery he will give the money to the poor.

Proposition: If reason requires me to stipulate winning the lottery in the causal chain from my act to the intended end which putatively justifies my act, then deliberate premeditated material cooperation with grave evil is not justified.

(Note: I inserted the word “grave” based on combox discussion)

What the Meaning of "Just Is" Is

October 7, 2006 § 3 Comments

My Enchiridion Militis colleague Maximos posted a cogent criticism of one of my recent blog entries about torture. As is often the case, we may be in closer agreement than it first appears; so I’ll start there. As always, it should be kept in mind that the more things are discussed the more I learn, which gives me permission to waffle on any previous commitments which may seem inconsistent with what I have to say today.

First, I agree that there are significant problems with the idea that torture is wrong because it is an attack on the will of the victim, or involves coercion of the victim. My most significant problem with this is that it appears to be obviously false. It is true that the particular application of torture which is presently controversial involves the coercion of the will of a captive in order to make him talk. But there are obvious putative cases of torture wherein the perpetrator couldn’t care less about what happens to the will of the victim. It wouldn’t be any less wrong or any less an act of torture if the perpetrator did it because he liked the sight of blood, or enjoyed hearing the screams, or wanted the victim to suffer in an act of revenge. I tend to largely ignore the bits of the discussion where people start talking about coercion (and “coercion of the will itself”) precisely because I don’t think that it is particularly pertinent.

Second, I do agree that there will always be some people who will misuse any conclusion. Maximos worries over what might happen if a large number of people become convinced that certain kinds of line-drawing is impossible. I worry over that too. But more than that I worry over whether or not it is true that certain kinds of line-drawing is impossible. Once we convince ourselves that a falsehood is true, or that we should act as though a falsehood is true, all bets are off. Literally anything is possible in principle, and whatever it is that occurs will not be constrained by the objective moral reality which obtains, since we will have expressly abandoned that objective moral reality. So our focus needs to be on whether it is true that we cannot (literally cannot coherently) ask the question “how far can sleep deprivation be pushed without becoming torture?”

Third, I want to pick up on Lydia’s comment and say that what is really at issue isn’t what we would or would not label torture, but what we ought and ought not do to helpless prisoners (no matter what their prior status) in general. It may be that our category problem arises precisely because we are attempting to separate torture from inhumane treatment in much the same way that we might try to separate lewdness on the part of a married man from adultery. There is surely a difference in gravity within the set of illicit acts which is pertinent in some circumstances, but it isn’t pertinent in terms of trying to figure out what we ought and ought not be doing.

I acknowledge too that the moral question isn’t a legal question. What specific positive rules ought to apply is a crucial question to answer, but we are guaranteed to answer it incorrectly if we don’t get the foundational morality right first. The positive rules have to be consistent with the underlying morality, and have quiddity only inasmuch as they are so consistent.

And this leads to where we disagree (or perhaps better said to precisely the area where further discussion may be productive). Maximos correctly anticipates my criticism of his criticism of the analogy between torture and abortion when he writes:

“One might argue that abortion and torture are analogous inasmuch as both may be portrayed as illicit acts performed with further ends in mind.”

And indeed they are, as a rule. Rare indeed is the abortion obtained purely for its own sake, just as rare indeed is the act of torture performed purely for its own sake.

However, this is merely a lead-in to Maximos’ more potent criticism:

“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 issue here is I think one of physicality. The act of abortion (or the object of the act in traditional Catholic moral theology) just is to bring about a particular physical state: the death of the child. Whether done to avoid sagging breasts or to avoid death from an ectopic pregnancy, if the object of the act is to bring about the physical death of the child then the act is an abortion and is immoral, full stop. (Note that conundra still arise, which is why salpingectomy generally is not considered to be an abortion while salpingotomy generally is considered to be an abortion. Even though the physicality in abortion is significant or even predominant, the physicality of the whole act – that is, what we observe physically – cannot in itself fully describe the moral object of the act).

Now in discussing torture most people have been focused on the physicality of the act. This is understandable in the scientific age, but with an act like torture it deceives us about the nature of the act, in my view. An act of torture, or the object of an act of torture, just isn’t to bring about an external physical state, as is the case in an abortion. Maximos is quite right in making this observation, and it is for precisely this reason that we can’t even ask whether being forced to stand for 10 hours is or is not torture. While it may be mostly obvious in most (though not all) cases of abortion what has been done from a pure physical description, this is not as clearly the case with torture. This is precisely because an act of torture just isn’t an attempt to bring about an externally observable physical state in the victim, whereas an act of abortion just is an attempt to bring about an externally observable physical state in the victim.

That raises the question of whether torture (or the union of what we call torture and inhumane treatment of prisoners in general) is an attempt to bring about a particular internal state in the victim. That general proposition seems to fail for the same reason that the specific one with respect to the will failed. It may be the reason that some of us want to torture prisoners, but that isn’t the only reason one might choose to torture. So it also cannot be the case that torture just is an attempt to bring about an internal state in the victim either.

And so. An act of torture just isn’t to choose to bring about any particular external state in the victim. An act of torture just isn’t to choose to bring about any particular internal state in the victim. So what the heck is it?

I submit that whenever a helpless captive is treated as an object and made to suffer as a means to some end unrelated to his own personal good, he has been treated inhumanely. The person who does this has committed an immoral act, no matter what good end he hopes to serve by so doing.

The position has some weaknesses for an anti-torture absolutist such as myself, or at least it may seem to in the abstract. Most particularly there remains the possibility that some will claim that we are torturing captives for their own ultimate good. Someone who is particularly gullible might even actually believe it, and advocate policy rooted in that belief. Also this leaves open the possibility that beating the crap out of a prisoner because he just threw feces at a guard would not, under this understanding, be necessarily considered torture or inhumane treatment. I think that is right, actually. Such an act would have to fall under prudential judgement in enforcing discipline. It could be evil in virtue of being disproportionate, of course, but it wouldn’t be evil per se the way that strapping a prisoner to a table and waterboarding him to get him to cough up the names of his co-conspirators would be.

I want to address Maximos’ point that torture is relative to the constitution of the victim. I don’t think that particular point holds up to scrutiny. The morally pertinent issue isn’t how effective an act of torture is on a particular victim. The morally pertinent issue is what we are trying to do to the victim. An attempted abortion using a particularly weak means applied to a victim with a particularly strong constitution is still an abortion if it succeeds, and is still an attempted abortion if it fails. Attempting to torture a CIPA victim while ignorant of his condition is a botched attempt at torture just as much as an abortion which accidentally delivers a live child is a botched abortion.

Finally, this does get to implications for the positive law. Because torture does not involve choosing to bring about an externally observable state — that is, because of the degree of non-physicality of its object — we can only regulate it as a matter of positive law much more indirectly than we can regulate abortion. Such is life. But in order to regulate it we have to understand it in the first place; and asking questions like “how long can we make someone stand before it becomes torture” is a moral question, not a legal question. That court-martial may be the result of intentionally making a prisoner stand for more than four hours is a positive backstop on external behaviors related to torture and inhumane treatment, but it should not be mistaken itself for a prohibition of torture. Regulations about external physicalities don’t properly define torture. Because they do not, it may be prudent to prohibit certain lists of physicalities and torture in general; but it makes no sense to treat a list of physicalities as what just is torture.

(Note: Cross-posted to Enchiridion Militis)

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