As you know from previous discussions, I prefer to let the adversary do the talking, so in response to Sullivan’s quotes:

“There does seem something intuitively right about seeing our ‘nature’ as some sort of guide to the way we should live our lives.”

OK, here’s where he goes wrong. Sullivan is a voluntarist at heart, much like most Western thinkers in recent centuries. He continually defines the “natural” based on what feels right, what occurs in the absence of coercion to the contrary, and what people want to do. When he asks…

“What do we mean by nature? How do emotion and reason interact? How precise and universal can we be in adducing morals from something as diverse and varied as the fruits of natural selection? How can we be sure we aren’t smuggling in all sorts of pre-existing views of what nature is and what morality is when we declare something “unnatural”? How does an argument that designates an entire sub-section of humankind as inherently immoral square with the goodness of God’s creation or the morally neutral power of Darwin’s theory?”

…he’s saying that we mean things that happen by “nature.” He’s implying that emotion and reason interact in such a way that an emotion is an a priori good, justified by instrumental reasoning after the fact (equally true whether it’s homosexuals who employ reasoning to justify their sex lives or heterosexuals who employ reasoning because they want to oppress “the other”). He’s saying that we start with the fruits of natural selection, then adduce morals from them based on what we want/what feels right to us/what empowers us/what we will to do. He’s saying that we do smuggle in “pre-existing views” of nature (he’s kind of correct on that one, and I’ll come back to this in a minute). And he’s saying that an entire sub-section of humankind who wants to do something should be condoned in doing so unless it infringes on someone else’s general liberty, either through God or Darwin.

The problem is that Sullivan’s argument starts with will as the basis for liberty, and looks for ways to justify what we want to do once we’ve determined what it is that we want. George (and I) are intellectual supremacists, arguing that reason has to be the king of the will a la Aristotle and most Western thinkers prior to the so-called Enlightenment. In a nutshell, just because someone wants to do something by nature does not mean that this desire is in accordance with human nature. I can want to have sex with a rock, or to kill my neighbor because of his skin color. But will does not determine morality. Reason does, because reason is at the apex of human nature. Many animal natures, ours included, contain will; only human nature contains reason. Reason looks for purposes and reasonable uses of things. A reasonable use of physical strength is material work or defense of innocent people, not arbitrary violence. A reasonable use of sex that takes into account its primary effect, which is procreation, cannot justify either homosexual or other non-procreative sex.

Sure, homosexual tendencies exist in the will by nature; as Sullivan says, “even” the Vatican recognizes that. But the Vatican isn’t just interested in keeping the gay man down (no sick pun intended). It is interested in preserving the primacy of reason and not the will as the basis for moral liberty. We have all kinds of tendencies that are unnatural. Look at the tendency held by so many towards greed and materialism of the sort you rightly rail against. You acknowledge that economic liberty ought to be oriented around the purpose of fulfilling human need, and I agree with you there despite our many disagreements about the best way to do so. Natural law thinkers extend the same kind of purpose-driven liberty discerned by reason to sexuality, politics, personal choices, etc.

Sullivan is wrong to say that “sexual orientation is the critical category here, not procreation or nature as it is actually found, and the result is to retain a stigma and legal discrimination against homosexuals – simply because they are what they are.” Again, he assumes a lack of reason behind the motives of his opponents (and I don’t doubt that he’s right as far as most on the American Right go). But he sees the entire debate over homosexuality as a clash of wills, not of reasonable positions. Intellectually speaking, that makes it very hard for him to justify his position over the alternative, much though a clash of wills is par for the course in current American politics. Stigmas are not always unreasonable, even if they do condemn something many people want to do.

Finally, Sullivan raises the point that, “You’d think that Christian scholars would be intrigued to figure out the questions – what are homosexuals for? why did God create them? why did natural selection favor their persistence?” An interesting question, to be sure, but not with the assumption that whatever a person desires is an a priori moral right. The question Christian theologians would file these points under is, “Why does sin seem so right and so appealing to a creature made in the image and likeness of God?”

As I promised in Part I of this continuation, in the present post I will try to demonstrate that torture can be morally permissible in light of certain circumstances. Following my attempt at framing a viable definition of torture, I will explore a number of scenarios relevant to the discussion on torture and human dignity in order to discern in which of those would torture be morally acceptable.

Before I set out on this undertaking, I would like to bring consideration to the way in which Western society approaches the term ‘torture.’ Torture’ is understood to be akin to ‘murder’ in the sense that it excludes any possibilities of moral justification. If I admit to murdering someone, then there can be no defense for my actions (as understood on the level of Judaeo-Christian morals). In a similar vein, mutatis mutandis, it is assumed that if I torture someone, then there can be no defense for my actions.

There is a serious difficulty associated with this analogy, which I will now take the time to explore, as, I believe, the present case has some importance for our current discussion. Against the prohibition on killing, one can defend one’s taking the life of another based on a distinction between one’s intentions toward the person who was killed. Self defense, for instance, is perhaps the first case that comes to mind; if someone attacks with me the intent to harm, then most would agree that I am not committing an intrinsic wrong by defending myself, even if my actions result in the death of my attacker. Other cases include accidental killings; while we often consider the person to have some degree of culpability in the death of the person in question, we do not place on them the same degree of blame as if they murdered someone. What do we mean by murder? Most, I think, would agree that murder consists in the premeditated and intentional killing of a human being. (For argument’s sake, let us disregard any inherent problems associated with this definition.) Intention, therefore, is the key underpinning of whether someone commits murder. Now let us apply this same analysis to our considerations of torture.

In the last post on this topic, I provided what I take to be a working definition of torture. For the sake of the reader’s convenience, I will provide a brief recap of that four part definition:

1. Thus, from the policeman-rioter example, the first condition of torture will be that the person tortured is in a position of vulnerability in which they are physically incapable of resiting their abuser.
2. The second will, I think, be that the torturer is inflicting pain or harm that is not conducive to the overall well-being of the individual who is tortured — for example, we do not say that the surgeon tortures his patient because they are anesthetized and incapable of resisting him as he inflicts physical harm on their tissues, as the doctor does this according to the patient’s will in order to benefit them.
3. This leads to the third principle — that the suffering inflicted is not voluntary, in the sense that the person tortured, if they were in their right mind, would not consent to the suffering they are subjected to. This last principle is important because it permits us to avoid the difficulties of the rapist-victim scenario detailed above — rape by its definition cannot be voluntary.
4. The fourth and final principle is that the person who suffers does so over an extended duration of time. We would not claim that a doctor who killed his unconscious patient by poisoning tortured them unless their death were to take an unusually long period of time.

Now, in order to apply the same criteria used for explaining how killing can be considered not murder, we would have to examine what circumstances would permit actions akin to torture that were not really torture. In other words, we would have to describe how someone might go about the actions involved in torture without in fact torturing someone.

Yet I will be the first to admit the limited prospects for such a project. How someone might go about the actions involved in torture without in fact torturing someone would involve a degree on mental gymnastics for which I do not believe human beings to be capable. For notice that the key component to establishing one’s innocence in most cases of killings not murder involve a plausible degree of ignorance. It does not seem very likely that I could lash, burn, freeze, suffocate, or induce fear to a restrained person without in fact knowing about it. One could similarly dismiss cases of accident as well, for it is not common that I find myself in the circumstances of 1 – 4 by chance alone. To conclude this immediate line of thought, there is something very odd about comparing the regrets of killing someone but not murdering them with applying the actions of torture to someone without torturing them: the “I am terribly sorry that I killed that person; it was by accident” does not seem analogous to the “I am terribly sorry I applied the circumstances of torture to that poor fellow; it was by accident.”

Perhaps one might reasonably claim that the two types of actions — murder versus killing and torture versus applying the circumstances of torture — unfairly conceals a key difference between the manner I have set the types of actions in opposition. The rejoinder might go something like this. While murder involves a fairly contiguous association of facts — a premeditated intent to kill — torture, as defined here, involves yet another set of fairly contiguous facts, i.e., the list 1 – 4. As the construction of the analogy goes, one can kill someone without fulfilling the criteria necessary to murder someone. On the other hand, the argument advanced for torture does not allow for any neat distinction between torture and actions akin to torture. In order to torture someone, I would have to fulfill 1 – 4 while INTENDING to do this; in order to commit an action akin to torture, I would have to fulfill 1 – 4 while NOT intending to do this. Thus, in constructing the argument in this manner, one would by definition not permit opposing examples.

I would reply with the following. In order to bear a sufficient resemblance to murder, legitimate killing would imply that the result of the actions are the same — that is, that the person in question dies. What differs in the two cases might be either the specific actions of the killer or his intent, but the key component to the relation between killing and murder is that they produce the same effect. Likewise, in order to bear a sufficient resemblance to torture, one who committed actions akin to torture would have to be responsible for actions that resulted in the same consequences of torture — that is, the suffering consistent with torture (Despite initial appearances, this answer is not question begging. As I tried to explain in the first post of this series, the suffering associated with torture cannot be the same as suffering or pain in general but a particular type of suffering or pain.) If I wish to make a fair comparison between the two, then I must compare them based on their consequences. For, if I were to insist on comparing pain in general with death in general, insofar as the similar actions tended to their respective results, then I would be claiming that there was no genuine distinction between the actions associated with torture and the inflicting of pain in general, which seems to me to be unequivocally false.

Now this type of suffering is specific to the conditions of the criteria of 1 – 4, and thus it is difficult to conceive of how they could be substantiated unknowingly. Yet this point reveals another difficulty with the killing/murder analogy to the torture/actions akin to torture one. The killing/murder analogy works because the results of killing in comparison to murder are sufficiently similar, i.e., they are the same. The torture/actions akin to torture analogy fails because it does not capture the specific distinction between suffering simpliciter and the specific suffering produced by torture. One can inflict pain or suffering on another person without torturing them or without ‘appearing’ to torture them. One cannot, however, murder someone without killing them or kill them without killing them.

Now that we have answered the present objection, I will continue to argue that the murder/killing analogy with the torture/actions akin to torture one does not stand. My first concern will be to show, as I discussed above, that the distinction between actions akin to torture and torture itself is false. For it is not clear how one might proceed through actions 1 – 4 without treating someone in which a manner as to torture them. Perhaps to help us illustrate this difficulty, it would be useful to provide an example from contemporary debate on the permissibility of torture.

As has been infamously recorded, interrogators at Guantanamo Bay got around the current U.S. laws against the use of torture through a then current loophole. The techniques employed by interrogators — such as cramped confinement, wall standing, and muscle fatigue — do not qualify as torture as such; at most they are uncomfortable. So argued the white house legal counsels at the time. As for the more controversial techniques, such as water-boarding and sleep deprivation, the ambiguity as to whether these actions constitute torture or not begins to decrease in proportion to the likelihood of permanent psychological damage in the case of the former or permanent brain damage or even death in the case of the latter. The key interpretive component to this reading of the law is the term ‘intent.’ Basically, something is only torture if the person who is doing the torturing intends to cause physical or mental anguish. From a practical standpoint, this can lead to many problems. The interrogator might honestly believe that what they are doing will not lead to physical or mental anguish on the part of the suspect in question. The difficulty, however, lies in detecting when the interrogator does in fact believe that their actions will cause physical or mental anguish. What test might one pose to determine whether one is telling the truth?

Now, as discussed above, it would seem patently odd for someone to go through all the motions of inflicting torture on another person and still claim that they were not inflicting torture on this person. Notice, moreover, that none of the four criteria I described mentions that one must intend to inflict physical or mental anguish on someone in order for their actions to constitute torture; the actual act of inflicting it is enough. To torture someone is the equivalent to going through the actions of torturing someone; there is no distinction between torturing someone intentionally and torturing them by accident. Torture, as we have defined it, requires a very special contiguity of actions to be considered as such. In other words, if someone does indeed go through the actions of torturing someone, then we should doubt them if they were to claim that they did not intend to inflict physical or mental anguish in so doing what they were doing.

Though I disagree with any account that tries to minimize certain actions akin to torture as not torture, this does not imply that I would consider such actions to fall under the rubric ‘torture’ as universally condemnable in all circumstances. To inflict physical or mental anguish in most cases, but that does not entail that it will be wrong in all cases. As we have shown above, there is no good reason to believe that the term torture is always wrong in the sense that murder is always wrong. In Kant’s language, ‘murder is wrong’ is an analytic judgment in that the term murder will always imply wrongness. Yet, as argued above, this is not the same case for torture. But even if one accepts my argument on this point — that the term ‘torture’ does not imply that an action is automatically wrong — I realize that this does not prove that there are actual cases in which torture is not wrong, but only that the phrase ‘there are some occasions when torture is not wrong’ will not imply an immediate contradiction.

What instances are there in which torture is morally permissible? I would describe the following as matching this criteria. Imagine that terrorists have planted a significant amount of explosives in a highly populated area. They are threatening to detonate the explosives to show government officials that they mean business. Government officials and police take one of the terrorists into custody. At the time they take the terrorist in for questioning, there is approximately 1 hour before the bomb goes off (more accurately, there is an approximation that the bomb might go off in an hour, but it will go off for certain sometime soon). The officials only know that the bomb is planted somewhere in New York City; they don’t know what part of the city.

In such a case, I would argue that torture is not only morally permissible, but that not to torture the terrorist would be morally condemnable. If to inflict torture on the terrorist is the only way to get him to talk given the time constraints imposed, then to use torture would seem the only responsible thing to do to prevent the loss of innocent life. Such action as torture in this instance cannot be considered just in an absolute sense — in an ideal setting, we would not have to torture anyone — but I would definitely consider it just in light of the present circumstances. One also cannot protest too greatly the degree of pain or suffering that is inflicted. That the very debate of whether certain enhanced interrogation techniques were torture or not seems to prove that they are not as onerous in the agony they inflict as are other methods of torture. In light of the potential death and destruction that could result if one were not prepared to endorse such techniques, their use does not seem that great a crime in comparison.

One might reasonably protest against this example. The charge might go something like this. Such a case as the one described are too clear cut in simple to really capture the complexities involved with the decision to torture someone. We do not always know of an immanent terrorist attack, nor do we always have such a clear picture of the facts when we do anticipate one. How, then, is this example supposed to provide a justification for torture when we are mostly ignorant of when using torture would actually be effective?

My answer is as follows. True, we do not always know when terrorists will attack, nor do we very often have a clear idea of their plans. Yet, if we did find ourselves in the circumstances that I described, then it would seem to follow that we do in those circumstances have a moral justification for torturing the terrorist. Nor would it be consistent with this principle to ignore the threat of an attack in general if one found oneself under siege from potential or actual terrorists. In other words, if it were clear that the populace of a country were in immanent danger from attack, then government officials could not hide behind a veil of ignorance for doing nothing to prevent the attack. The hopes of merely stumbling upon a terrorist seem so low as to be comical if used for the government policy of hunting them down. An active search and vigilance is required on the part of the government, not merely a pledge to torture terrorists, if they threaten to kill civilians, if one happens to come across one.

In endorsing an approach as this one, I understand the dangers inherent in permitting officials to use torture as an accepted means of obtaining information. To reduce the genuine abuses that would occur under such endorsement, I would propose the following guidelines:

A. That only comparatively moderate suffering, as consistent with techniques used at present, be inflicted upon the party in question.

B. That such techniques be applied only on those believed to possess vital information necessary to protect innocent lives and in direct proportion to the importance of the information they are suspected of possessing.

C. That those who abuse prisoners for reasons not consistent with B be punished severely for their actions.

D. That torture be applied universally or without exception only to top ranking terrorist officials or leaders and only when the organizations they represent have made explicit threats against the lives of innocents.

Is it ever permissible to torture a human being? If this is so, under what conditions is this permissible. In the next two posts, I will try to defend the view that torture is indeed permissible in view of certain prerequisites, the most important being the consideration of the safety of others involved — in other words, will harm or death result to other people if the person in question, a terrorist or some other guilty party presumably, is not tortured? In the first I will try to ascertain a consistent and rigorous enough account of torture to, hopefully, meet most people’s expectation of the actions that comprise torture. In the second I will apply this definition to a series of cases involving torture and argue that under these circumstances, torture is morally permissible and socially responsible.

Thus, as I promised above for the first account, it will be necessary to establish some working definition of torture, as the uses of the term can vary based on one’s understanding and beliefs. A seemingly reasonable starting assumption is as follows: torture is the intentional inflicting of pain or distress on another person. Now to see whether this definition will fit the crucible of common sense, let us apply it to a current discussion of torture.

There is an ongoing debate, for instance, as to whether certain actions such as water-boarding constitute torture. One can hold the belief that torture is wrong while rejecting the belief that water-boarding is wrong, on the condition that one also believes that water-boarding is not torture. On the previous definition of torture, such a belief will be strictly inconsistent, for the assumption there was that ANY intentional infliction of pain for whatever reason will be torture. Yet this will not hold for at least a few cases. When I pinch someone, for instance, perhaps a friend or a family member, does this imply that I’m torturing them? While I am indeed inflicting a minor degree of pain on them, to answer in the affirmative would seem absurd. So would, but to a lesser degree, classifying the spanking of a child as torture seem to use the term in a way that would not make sense to most people. Thus it would seem that the infliction of pain simpliciter would not be enough to be considered as torture.

The default position, in light of the distinctions we’ve made, would seem to be that torture differs from other inflictions of pain in quantity alone. This would certainly work in the favor of advocates for certain “enhanced interrogation techniques,” as there the infliction of pain or suffering does not seem that great in comparison with interrogation methods that no one (or almost no one) would argue are not torture. Since drawing a line as to which actions are or are not torture would be arbitrary –  it would be ridiculous to classify torture as ( x ) amount of pain, where ( x ) is a quantity that could readily be measured — one could only make a distinction based on comparisons of certain actions that were unambiguously considered torture, e.g., the shoving of bamboo sticks beneath one’s fingernails.

This principle, however, also seems to be unsatisfactory for a number of reasons. Say, for instance, that a vicious serial rapist uses powerful anesthetic drugs in order to subdue his victims so he can sexually abuse them without their fighting back. Our common sense would suggest to us that the rapist abused the victim in one way that would fall under the descriptor we used to determine what torture is: he has inflicted both physical and psychological pain on his victim through his actions. Yet there is a problem: if the rapist’s victim is unconscious or barely conscious (let us assume for argument’s sake that it is the former) for the time that the rapist is abusing them, then it is arguable that the rapist is not torturing the victim as the victim does not in fact feel physical pain. To contest this account, one would have to demonstrate that one could experience pains in an unconscious state. As pain, from a scientific perspective, is the phenomenal feeling associated with actual or potential tissue damage, or described in terms of such damage, it would seem that any plausible candidate for an account of unconscious pains would be ruled out on this basis. While I do not deny that it is certainly possible that one could experience unconscious pains, I also think that the onus of proof is on the person who wishes to prove this.

There is, moreover, another difficulty in accepting the contention that torture is the intentional infliction of a high degree of pain. Let us return (though not joyfully) to the rapist from above. Imagine, further, that in addition to anesthetizing his victims during his sexual exploitation of them, the rapist also keeps them in a constant state of unconsciousness — or unawareness — through the use of the powerful anesthesia  he uses to rape them. Whether such drugs actually do exist at the moment is hardly relevant — such drugs can easily be imagined as existing, and the actual existence of date-rape drugs, in which the victim is in a stupor as to what’s going on, is evidence enough that the scenario is morally relevant.

Now, if the victim is never or barely ever conscious of their abusers actions, it would seem plausible to conclude that they cannot suffer psychological pain for the time that they are subject to this extended abuse. What I mean by this is that the victim, in light of their present circumstances, cannot know that they are being abused and cannot have really any coherent idea of what is happening to them. Thus it would seem that the victim is not suffering from psychological abuse, as a strong precondition of psychological pain is a general awareness of oneself at the present. (I do not say that psychological pain requires awareness of the harm or abuse one has suffered because one might have suffered from some traumatic event that one does not have present knowledge of, but which is the cause of present anxieties or emotional distress). As the imaginary victim has not suffered (conscious) physical or psychological pain at the hands of his abuser, it would seem to follow that the rapist has NOT tortured his victim. For anyone who believes that rape is a serious — perhaps the most serious type of — abuse a person could endure, this principle is unacceptable. Yet, if one rejects this scenario, one must also reject the notion that torture is determined by the quantity of pain alone in relation to cases that are unambiguously cases of torture.

Following the rejection of the previous two accounts, what could offer us a plausible candidate for the definition of torture? To provide such a candidate, we would need to give an account that escaped the objections above and that would still serve as a satisfactory account on its own. I think the following might provide such an answer that is needed. When we say that someone is tortured, pain or discomfort or abuse inevitably has a role. Yet this does not exhaust the circumstances in which torture takes place. We do not say that a policeman commits torture when he beats a rioter to submission who is trying to harm or kill him. Yet we would consider the policeman to have tortured the rioter if he beat the rioter while he was protesting peacefully and continued to beat him while he was defenseless. Beginning with this most recent example, let us enumerate some general principles that account for what torture consists in.

1. Thus, from the policeman-rioter example, the first condition of torture will be that the person tortured is in a position of vulnerability in which they are physically incapable of resiting their abuser.

2. The second will, I think, be that the torturer is inflicting pain or harm that is not conducive to the overall well-being of the individual who is tortured — for example, we do not say that the surgeon tortures his patient because they are anesthetized and incapable of resisting him as he inflicts physical harm on their tissues, as the doctor does this according to the patient’s will in order to benefit them.

3. This leads to the third principle — that the suffering inflicted is not voluntary, in the sense that the person tortured, if they were in their right mind, would not consent to the suffering they are subjected to. This last principle is important because it permits us to avoid the difficulties of the rapist-victim scenario detailed above — rape by its definition cannot be voluntary.

4. The fourth and final principle is that the person who suffers does so over an extended duration of time. (This can inevitably vary based on the torture inflicted: flaying someone alive would take a comparably short period of time in relation to other methods of torture, but would nonetheless be a long period relative to the harm inflicted — from the perspective on the flayed person, this would most likely seem to take much longer than it actually would.) We would not claim that a doctor who killed his unconscious patient by poisoning tortured them unless their death were to take an unusually long period of time.

While I do not claim that these four principles are not exhaustive in the sense of accounting for each and every instance of torture, I feel that they are able to avoid the above objections while accounting for the vast majority of cases and perhaps providing for some room for borderline cases — I mean that such cases could not ipso facto be ruled on one side of the fence or another, as it were, but would require some serious deliberation as to how they would be classified.

The emergence of the new moral understanding is grounded in the modern rejection of Medieval Scholasticism. According to Calvin and the Catholic-Jansenists, for instance, the fall of man completely destroyed human nature’s capacity to work properly in even its most elementary of functions. Included in this assortment of corrupted nature was human reason itself. Now, in order to see the handicaps of the newer system, it is important to understand some basics of the Aristotelian tradition that was being cast aside.

In understanding human nature, as Aristotle argued, it is integral that we have the ability to grasp the essence or the nature of things so that we can acquire a proper conception of their end [telos]. A thing’s end is its substantiation of ‘what it is.’ This basic ability to understand things through acquiring a familiarity with their essences is the role of reason. For humans, it is important to distinguish man as we find him now and man as he could be if he realized his potential — in the case of humans, this is to realize their happiness. Though the background and the fulfillment of human happiness is revealed by God in Holy Scripture, it is also comprehensible and defensible based on human reason.

For man to realize his full potential is for him to realize or attain to his proper end. The path to this realization of man’s potential, however, cannot be accomplished without effort and without implementing the proper means, as there are many ways in which someone could go wrong in choosing one thing or another in their path to realizing their telos. Thus it is the role of reason to discern not only the end of man but also the means by which he can realize this end.

The chief consequence, therefore, of the new understanding of human nature was to eliminate man’s capacity to grasp the essences of objects through the exercise of his reason. A further complication — that of anti-Aristotelian science — was to reinforce this earlier redrawing of reason’s role in the structure of human nature. The new functioning of reason is that of a mere calculative or deliberative faculty; in the realm of ethical practice, reason can no longer form a conception of the human end but of means only. Science thus places strict boundaries on the capacity of reason.

If there is to be such a thing as human nature, then it is a human nature based entirely on man as he is now. Thus there is no understanding of human nature from a teleological perspective, i.e., of a preexisting archetype to which man must conform. For all of the Enlightenment and post-Enlightenment thinkers, from Descartes to Hume, from Kant to Kierkegaard, there is no understanding of human nature as based on a telos.

Now the aim of ethics is to guide man in his passing along from man in his pure potential to man as he could be, i.e., according to his true end, “the elimination of any notion,” to quote MacIntyre, “of essential human nature and with it the abandonment of any notion of a telos leaves behind two remaining elements whose relationship becomes quite unclear” (MacIntyre, “After Virtue,” 54 – 55). There is, on the one hand, a set of moral injunctions deprived of their theological context, which in this context would serve as a moral basis. On the other there is a certain image of raw human nature, as it is found ‘in nature.’ “Since the moral injunctions were originally at home in a scheme in which their purpose was to correct, improve, and educate that human nature, they are clearly not going to be such as could be deduced from true statements about human nature or justified in some other way as appealing to its characteristics” (MacIntyre, 55). The tendency of human nature as such, under the new Enlightenment understanding, will inherently be to disregard moral injunctions. Thus the Enlightenment thinkers were engaged in a perpetually self-defeating project, to the end of reconciling two features of ethics that were inherently opposed. They had inherited mere incoherent fragments of a once coherent moral order, and thus their project of providing coherence to these fragments was doomed from the start.

Political cartoon from Kenya, where the answer is evidently yes.

In what was arguably the least politically correct conversation I’ve had this year, a friend and I discussed crime and punishment last night. He suggested that, in keeping with the idea of avoiding cruel and unusual punishment, we should institute public caning as punishment for petty crimes like graffiti and shoplifting.

Needless to say, I was a tad bit confused.

He reasoned that a $10,000 fine and 150 hours of community service is actually more cruel and unusual for your average young hoodlum than corporal punishment coupled with public humiliation would be. Cruel, because a $20,000 debt is enough to seriously harm someone already making somewhat stupid decisions. Unusual, because mandatory community service does not actually create the fear of the law that prevents future criminal behavior.

Aristotle argued in the Nicomachean Ethics that the state ought to cause pain for wrong actions, in order to compensate for whatever disordered pleasure perpetrators get out of them. Certainly, corporal punishment has been legally prescribed throughout most of human history. At the most basic, natural level, people want to avoid physical pain and harm to their bodies even more than monetary burdens or the loss of time.

Debate: is public caning egalitarian, natural, and effective as a punishment for petty crime? Or is it needlessly violent and cruel?

“I went up to Cambridge at Michelmas 1902, and Moore’s Principia Ethica came out at the end of my first year … it was exciting, exhilarating, the beginning of a renaissance, the opening of a new heaven on a new earth.” Thus did John Maynard Keynes write about Moore’s work, and so too did Lytton Strachey and Desmond McCarthy, who would go on to make up what was later called the Bloomsbury Group. They comprised the intellectual elite of Cambridge. Well-educated, bright, ambitious, they sought to liberate themselves from nothing less than the entire moral heritage of the Western world. Everything which had come before them they now sought to rid themselves of, whether it be the teachings of St. Paul or the recent utilitarianism of Sidgwick.

We have already discussed the first of Moore’s claims, that the term ‘good’ denotes nothing more than a non-natural property that cannot be defined. The refutation of the argument I offered then I still consider valid, and it is then with the other portion of Moore’s work that I will concern myself. It is the last chapter of Principia that I would like to examine. Here, Moore, argues, “personal affections and aesthetic enjoyments include all the greatest, and by far the greatest goods we can imagine.” The greatest truth of moral philosophy includes nothing more than this: the thing that the non-natural term good denotes is simply approval or disapproval, like or dislike, aesthetic attraction or repulsion.

The philosophical attitude I have described is called emotivism. Though one can trace it in inchoate form as far back as Hume, it is specifically a phenomenon of the early twentieth century and beyond. Thus it was in Cambridge, 1903, that this group of young men were freed from the morality of the past, toward “the opening of a new heaven on earth.” With the basic description I have offered of the moral philosophy they held, it is not difficult to imagine hot emotivism affected their behavior — the limit to what I should do is based on what I prefer; hence, I ought to do whatever I prefer. As the term ‘good’ cannot be applied to any natural object, mere preference is the sole basis for morality; my describing something as good is to do nothing more than to signal my approval for it. Morality loses any pretense to objectivity, as there is no reason I can offer for choosing one thing over another other than citing my preference for it.

I would, however, argue that there are very few good reasons for accepting emotivism and at least two very good reasons for rejecting it. First, emotivism has difficulty establishing its basis as an ethical theory in any clear-cut fashion. For if I were to ask what a moral judgment represented, an emotivist would likely respond that a moral judgment represents feelings or attitudes. Feelings or attitudes of what, I might ask? Feelings or attitudes of approval. What type of approval? As Alasdair Macintyre notes, it is here that most emotivists are wisely silent. For the only real answer they might provide involves them in a vicious circularity which does little to establish the coherence of their position. For if pushed to this point, “moral approval” is how they will answer; and it is the only answer available to them.

The second reason is that emotivism, as a theory of language, is supposed to inform us on the function of language. But the expression of an attitude or preference is not comprehensive enough to provide an exhaustive account of how moral language is used, but only how it is used in a few particular instances. Alastair MacIntyre uses an example of an angry schoolteacher to illustrate this point: “7 times 7 is 49″, no matter in what way it is shouted, does not express an attitude or a preference in any clear manner.

These illustrations should, I hope, demonstrate that emotivism is not a coherent theory for ethics or of the meaning of language. Yet, if this point is not difficult to demonstrate, why should anyone pay attention to it as a problem? My answer to this question is that emotivism, as a theory of moral behavior, is a particular problem in the West, in particular the most developed industrial countries which comprise it. That is, developed nations in general tend to conceive of moral judgments, whenever they conceive of them at all, as at bottom nothing more than personal preferences. Now what I am not suggesting is that emotivism is held as ‘the’ position on ethics in the developed nations. Rather, I argue, people behave in a manner as ‘if’ emotivism were true, even if they deny all its premises or contend that it is false as theory.

In contemporary moral discourse, especially in politics, emotivist premises are taken for granted. For regardless of one’s personal stance on an issue, such as abortion, or just war theory, or property rights, one person’s preference is not taken as more correct than that of anyone else. This point is made with greater force by Alasdair MacIntyre in his book “After Virtue.” Thus I will cite a passage from there to explain the meaning of this argument:

“Every one of the [arguments on abortion, property distribution, and just war I discussed on the previous page] is logically valid or can be easily expanded as to be made so; the conclusions do indeed follow from the premises. But the rival premises are such that we possess no rational way of weighing the claims of one as against the other. For each premises employs some quite different normative or evaluative concept from the others, so that the claims made upon us are of quite different kinds … It is precisely because there is in our society no established way of deciding between these claims that moral argument appears to be necessarily interminable. From our rival conclusions we can argue back to our rival premises; but when we do arrive at our premises argument ceases and the invocation of one premise against another becomes a matter of pure assertion and counter-assertion. Hence perhaps the slightly shrill tone of so much moral debate.”

Thus, on any number of moral issues, we would be best served by barking at the moon than by sitting down to have a serious conversation with our topical adversaries. The absolute standard by which moral claims might be measured in our culture are lacking, and hence so too is lacking any claim to objectivity we might strive for.

Modern notions of the natural law differ from the classical one in two very important respects. The first is the introduction of the concept of the state of nature, which would become practically universal in the modern setting. The second is the emphasis on individual rights in the abstract, as opposed to rights among members of a community. The natural law of the modern era undergoes a fundamental shift in the thinking of Thomas Hobbes, whose formulation of the origins of the state, along with the philosophical anthropology underlying it, was to set the stage for the discussion of natural law for the next few centuries.

Accordingly, Hobbes conceives of man as existing in a state of nature, in which the man’s lot is “solitary, poor, nasty, brutish and short.” It is a period predating the establishment of the state, in which each and every man is in constant and violent conflict with one another, “a war of all against all” (bellum omnium contra omnes). Yet seeing that such conflict is unending and brutal, man opts for a compromise, an end to the perpetual fighting with his peers, through the mediation of the state. Thus the social contract is born, a compact among men in which the state is vested with absolute powers in exchange for the protection of life. For Hobbes, the inclination to survival as the first of man’s desires replaces happiness, in the classical sense.

Now as the basic protection of life is the sole criterion of legitimate authority, it follows that the only criteria for a legitimate regime is protection of man’s survival as such and its power to maintain itself against attempts at rebellion or conquest. Thus the definition of rebellion itself goes through a fundamental change — there can be no such thing as a successful rebellion, for one regime which overpowers another is entitled to the power to rule which it achieves through its victory, which also means that the previous regime was unsuccessful both in maintaining its own right to power, as well as having the power to protect its citizens. Through its success, a rebellion justifies itself in its very act, and thus cannot be questioned.

Students of political philosophy will recognize a very strong resemblance in the picture of man Hobbes paints to that which Thrasymachus depicts in Plato’s “Republic.” According to the definition of justice Thrasymachus provides, justice is nothing but the commands of the ruler to his own benefit. Following Socrates’ refutation of this definition in Republic Book I, Glaucon and Adeimantus charge that Socrates has refuted Thrasymachus’ argument but has failed to prove that justice is to be sought for its own sake. They thus propose to revive Thrasymachus’ argument — so that Socrates might refute this stronger thesis and prove to them their innate belief that justice is better than injustice — and support it with the claim that injustice is advantageous and justice harmful to the individual. In order to illustrate this claim, Glaucon uses the example of the fictional farmer Gyges, who, upon discovering a magical ring, that rendered him invisible upon wearing it, uses its power to enhance his own. Gyges successfully seduces his queen, and the two of them conspire to murder the king; upon the king’s death, Gyges seizes his throne and proclaims himself as the new ruler.

The moral underlying the story is that justice by itself is useless — people only pretend to be just in order to avoid being treated unjustly by their neighbors. If one person could act unjustly without being caught, they would do so. Hence justice is merely the status quo for those not wishing to be treated with injustice. It would be helpful to bear in mind here the image Hobbes paints of man as in a perpetual state of war, preceding his entrance into the social contract.

The picture that Plato provides through the illustration of Gyges bears striking resemblance to the doctrine Hobbes advances. The inclination of man, insofar as he wishes not to be molested by his neighbor, lies in his agreement not to abuse his neighbor, in either property or person. Thus the account which Hobbes provides nearly 19 centuries after Plato is hardly novel. Hobbes merely reiterates that powerful appeal this argument exercises over the mind, in that it possesses an ostensible ring of plausibility which other theories lack.

Yet Hobbes neglects mention of one important fact. An agreement among men presupposes that such conventions required for civilized discourse are already in place; a contract cannot take place unless the procedures for discussion among men exist before such discussions are under way. Hence, as men found in a war of all against all cannot be said to possess the required means to enter into civilized discourse, Hobbes’ picture of natural man would seem implausible, and to this extent his image would be anachronistic. Another feature of civilized man, which the  very idea of civilization presupposes, is the complex interconnected set of relations that make up the social nexus of which each and every person is a part. Man, in his state of nature, as Hobbes describes it, is individuated and alienated from his peers to a degree that seems unrealistic in light of the social complexities required for the negotiation of an successful attempt at living in relative harmony with one another.

Today marks the 140^th birthday of Mahatma Gandhi, one of the most potent theologians, reformers, and political philosophers in the modern world. Much has been said of his dedication to non-violence in the struggle for Indian independence, and his writings on the power of moral righteousness against coercion are well worth looking at. Few people know that Gandhi also applied this belief in discipline as the ethical superior to violence to politics, too.

Gandhi dubbed his political philosophy “Swaraj,” or “self rule.” In addition to the term’s traditional definition, referring to the sovereignty of a nation, Gandhi envisioned Swaraj as the rule of every person over his own affairs. This meant that there would be no state, but instead the “free and voluntary play of mutual forces” in an atmosphere of freedom.

Unlike other, more individualistic, brands of anarchy, Swaraj emphasizes the natural relationships between people. As Gandhi put it, under Swaraj, “Life will not be a pyramid with the apex sustained by the bottom. But it will be an oceanic circle whose center will be the individual. Therefore the outermost circumference will not wield power to crush the inner circle but will give strength to all within and derive its own strength from it.” Every individual will order her own life in accordance with nature, for mutual benefit and strength.

Swaraj is also founded on the duties of people: “At the individual level Swaraj is vitally connected with the capacity for dispassionate self-assessment, ceaseless self-purification and growing self-reliance.” In other words, the expansion of Swaraj is not based on traditional power dynamics and the ability of its supporters to prevent anyone else from gaining power. Instead, Swaraj expands in direct response to the moral formation of individuals taking responsibility for their actions and needs. Far from being abolished, rule and authority would fall fully on every person: “It is Swaraj when we learn to rule ourselves.” The freedom of Swaraj is not an excuse to indulge desires, it is the ability to fulfill natural duties. Gandhi believed so firmly in the responsibility of every person that he turned down an offer to help draft an international charter on human rights, responding that, “In my experience, it is far more important to have a charter for human duties.”

The notion of anarchy in any form is difficult for any supporter of natural law, as natural law empowers the civil law. Human nature will never be so restrained and disciplined as to accept such a world without being overpowered by our wickedness and depravity. The reality of human evil means that power will never truly go away and neither will domination. The best we can manage is to create institutions that channel and dispense power in a humane and natural way, for the sake of the good.

That is not to say that Gandhi can be dismissed as naïve. To his skeptics, Gandhi responded that “we must have a proper picture of what we want before we can have something approaching it.” Of any political ideal, that of freedom so far as allowed by the moral formation of individuals is willing to permit is well worth striving for. It is also a proper picture of the right relationship between freedom and morality. Indeed, “Swaraj,” defined as “self rule,” is far more compatible with true and natural freedom than is “anarchy,” which is literally “the absence of rule.”

Gandhi’s philosophy of Swaraj combines conservatism’s appreciation for the flaws of humanity with anarchy’s desire for people to live free. As a reminder of the inseparable relationship between disciplined self-restraint and civil liberty, Gandhi’s political thought is at least as important to the world today as is his insistence on non-violence in the face of oppression.

As Zach pointed out in his last piece here, the natural law authorizes positive, civil law written by humans. One of the main functions, as Zach explored, is to encourage people to do good and to avoid evil. Two other important functions of the law are to protect the weak, and to establish the rules by which people in society can predictably act.

Hammurabi’s Code, written four millennia ago, stated that it existed so “so that the strong should not harm the weak.” Virtually every other code of laws since has echoed such an emphasis on securing the rights of the downtrodden. Biblical law permitted the poor to glean leftover bits of grain from the harvest so that they could survive. Greek and Roman Republican law enshrined the notion of equality under the law, such that even rulers had to submit to the law. The constitution that Muhammad wrote for the City of Medina granted Jews, Christians, and pagans the right to bring Muslims before the authorities to redress wrongs.

The other idea, that the law exists to clarify what people can do so that they know what life will bring within the control of the authorities, seems self-evident. The very notion of a state is that it will be the ultimate arbiter between people with conflicting claims, and that it will hold up a consistent law that people cannot be punished outside of.

Unfortunately, many societies do not take the idea of law seriously enough for it to truly protect the weak and grant security to every human life. Certainly, laws can be unjust; slavery in the American South, racial violence in Nazi Germany, and the killing of infants in most ancient societies took place under the aegis of the law, and each is a gross affront to the natural law. That said, people could at least expect abuse and prepare for it when it happened under the law.

Such is not the case for anyone who falls entirely outside of the law. People outside of the caste system in India, for example, had no idea whatsoever when they would encounter mercy, when they could reasonably expect a person to honor his word, and whether or not anyone would protect them from gross violence. Refugees around the world from places like Palestine, the Congo, and North Korea are likewise caught with no authorities to protect them and no law to make life predictable.

The same condition of ambiguous statelessness exists for the nearly 12 million illegal immigrants currently residing in the United States. When Congress debated reforming the American immigration system in 2006, many arguments were raised about what to do. Some activists implicated the immigrants themselves for breaking the laws, and recommended harsh punishments, if not outright expulsion from the country. Other politicians lamented that laws were broken, but called for mercy.

No one implicated the state for being unreasonable about restricting immigration and denying 12 million people any status whatsoever.

If the law is meant to give predictability to life, then it is completely failing immigrants in this country. The procedures by which visas are extended or permitted to expire are vague and carried out behind closed doors. There are only 115,000 visas available for skilled foreign workers in any given year, and a mere 30,000 for agricultural workers. In fact, many current illegal immigrants came to this country on legal visas, but were then denied the opportunity to stay, without any particular reason save for the limited number of visas.

Once a person becomes illegal, even the basic expectations of justice are hard to come by: reporting crimes to the police becomes self-incriminating, and protecting one’s family from harm means blowing their cover and being forced to leave along with them. The duties of a person under natural law, such as working for one’s sustenance, protecting loved ones from violence, and exercising consent in arrangements are all ignored by the civil law for illegal immigrants. Unfortunately for those who would rather forget, this is unacceptable: the natural law applies to people of every nation, no matter where they are at any given time. The civil law is bound to respect and sanction the demands that the natural law makes of every person.

As the Obama Administration makes it through its first year without any discussion of immigration and the millions of people here outside the authority of the law, a disgrace continues. The civil law must be reformed so that the poor can come here and try to find their way. The civil law must be reformed so that everyone in this country has the basic expectations of justice and the rule of law itself. More than for any other reason, the civil law must be reformed so that illegal immigrants can meet all of their responsibilities to the natural law.

Continuing to blame illegal immigrants and their employers, or continuing to ask for merciful amnesty for those already here, is not enough. The law is inherently bound to protect people, and no one ought to exist outside of its cover. For the sake of the sovereign authority of the civil law, and for the sake of reason, immigration procedures in America must be liberalized.

Delaying such change any further will continue to leave people suffering and the lack of law as a mockery to nature itself. Worst of all, it will dehumanize illegal immigrants by preventing them from abiding by the natural law that is true for all people and in all times.

Though the natural law, as we have expounded it, is the sole reference to which all laws pertain, it would be false to conjecture that the natural law renders the positive law obsolete. It is by man’s reason that he can grasp the manifold of reality and lay claim to the truths of nature as such, but it would be unforgivably naive to believe that man’s knowledge of the natural law in itself is sufficient to lead him to good conduct. For the truth is that, even if all men could grasp and understand the natural law through the full exercise of reason, not all would accept its dictates as the measure by which to live.  As most are incapable or unwilling to heed the dictates of the natural law, it is to positive law which one must turn in order to guide society to stability and order.

The value of positive law, therefore, is measured directly to its success in implementing the natural law to practical purposes. As all positive laws are metaphors in the sense that they are modeled on the law of nature, they are inherently imperfect. Yet despite their limitations, they are the products by which human society is ordered; hence it is in the interest of the philosopher as well as the statesman that the laws under which a state is founded are ordered well, in that they conform both to the particular surroundings and historical facts which make up a people’s collective experience as well as to the natural law, on which all positive laws are modeled.

Laws, therefore, are useful in their proclivity to mold  people into becoming as good as possible, at least under their formation from the laws alone, under the archetype of the natural law as the beacon to be followed. Though most people obey the law simply out of fear of punishment, the hope is that they, through the strength of habit, will learn to obey the laws because they sense that it is just to do so; and hence from here learn to obey the laws insofar as they conform to the natural law. Thus it is from the combined fear of punishment and the practice of habit that most citizens obey the law, and it is these two pillars which provide the strength on which the compulsive power of the positive law rests.

These pillars, which provide the positive law its strength in coercing obedience, are also the reasons that make its subversion so destructive to a society gone wrong. In a society well ordered to the natural law, such a danger seems worlds away. The danger lies in states where the natural law has disappeared entirely from the legal tradition or is inverted into some monstrous substitute — such as the idea that one race stands superior to all others and thus has a natural claim to dominate, subjugate, and even exterminate those it views as its enemies. The history of Hitler’s Third Reich reveals some of the deepest problems related to the expression of positive law as the means to a well ordered society. The Nazis used the coercive power of the state to silence any and all who opposed their political programe, while at the same time they employed the routine obeisance of law-abiding citizens to run a bureaucracy and military machine that would otherwise have been inoperable. At its worst, this blind conformity led to one of the most tragic chapters in human history — the attempted genocide of the Jewish people, along with millions of others.

The question I would pose here is this: is mere conformity to the law a sufficient condition to one’s fulfillment of their civic duties. My answer is no. Insofar as one obeys the law merely to avoid punishment, one cannot be considered to have really obeyed it at all. The same would apply for cases in which habit is the sole reason for one’s obeying a particular law. Obedience to the law is only true obedience insofar as the citizen obeys the law insofar as it conforms to the natural law. Those who obey a law merely for superficial reasons can be described as obeying it more from compulsion than from any actual inclination to obey it. The good citizen will also ignore those laws which do not conform to the natural law, seeing them as a perversion of the attempt to frame the natural law in the form of individual laws. This does not mean that the good citizen cannot obey the law out of habit or from fear of punishment; it simply means that he will not obey merely because he is afraid of being punished or merely because he is used to following such a law; he obeys also and primarily because he obeys the natural law in which the particular law partakes.