Abstract
Deontologists often assume that ethical constraints hold ‘come what may’ but that violations of the constraints (such as violation of the torture prohibition) can be excused or pardoned. Vinit Haksar has argued for pardon as deontologically appropriate mitigation for the violation of deontological constraints. However, the reasons he adduces against excuse are inconclusive. In this paper, I show how complex the question of excuse versus pardon for deontological transgressions is. Liability for the development of character traits and the assumption of agent-centered responsibility have to be taken into account before the possibility of pardon can be identified as appropriate deontological softener for strict constraints.
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Notes
See Haksar (2011: 339).
For definitions or characterizations of deontology see Alexander and Moore (2007); Gaus (2001). This paper operates on the basis of a classical, ‘Kant-like’ conception of deontology, however it is also compatible with a threshold deontology (see Alexander and Moore 2007, pt. 4). Threshold deontologies assume that a deontological constraint is valid up to a threshold of consequences, above which consequentialist considerations hold. My argument could be applied to constraints below the threshold if other reasons for excuse or pardon, than the value of consequences, are admitted.
I will understand ‘catastrophic’ in a wide sense, which includes horrible outcomes for just one person. Losing a child because of a crime may thus be catastrophic to the parents.
Being in a genuine moral dilemma implies that an agent is bound to act wrongly whatever he does. Many deontologists, such as Kant, believe that there are no true moral dilemmas. This is a familiar position in the debate on moral dilemmas and I will, without further ado, argue from it.
These judgments are made from a present moral perspective and it should be clear that the mentioned prohibitions did not appear wayward from a Christian moral perspective in Kant’s time. However, I will not discuss the historicity of moral judgments here.
See, e.g., Brecher (2007).
See Kant (1996: 612): “I here prefer not to sharpen this principle to the point of saying: ‘Untruthfulness is a violation of duty to oneself.’ For this belongs to ethics, but what is under discussion here is a duty of right”.
I have pursued the ethical side of Kant’s liar case in Schuessler (2013).
See Haksar (2011).
See Margalit (2010).
I do not think that mere thought experiments make good philosophy in issues of torture, terrorism or war. Ethical reflection should be tested against real cases or close variants, however much these cases must be simplified for philosophical discussion. Brecher (2007) argues convincingly that the time constraints of interrogation almost always preclude a justification of torture in ‘ticking bomb cases’. This is different in the kidnap case which I will discuss, but see also the Vienna siege case below.
The “Gäfgen case” is analyzed in Ennigkeit and Höhn (2011). Brecher (2007: 86) acknowledges that the case is different from the cases he considers as spurious. It may be unrealistic to assume that the police officer would not have been stopped if he began to torture the kidnapper (or is it?), but we can realistically imagine how we would have reacted to the news that the kidnapper had, in fact, been tortured. The case is not presented in more detail here because I am only interested in general philosophical considerations.
For the siege case, see Hummelberger (1983: 25). It may be controversial whether this is a ‘ticking bomb case’ because nothing ticks here. However, I regard cases in which explosives are accumulated over some stretch of time for subsequent explosion as ‘ticking bomb cases’. Under this premise, unfortunately, the objection against ‘ticking bomb cases’ that time will, by definition, be too short to gain information about the location of the bomb through torture (see Brecher 2007: pp. 24) is not valid.
The case would not be different even if the police officer had been tortured himself. Some of the worst slaveholders in ancient Rome were freedmen, and Stalin had been in Siberia as a prisoner himself. .
For Kant on character, see, e.g., Baxley (2010).
For instance, he allows for deception through simulation (making believe through ambiguous language or signs) in order to avoid serious harm, see Kant (1997: 426).
See http://en.wikipedia.org/wiki/Failure_Is_Not_an_Option, accessed November 2, 2013.
For a largely exegetical analysis with respect to Kant’s prohibition of lying, see Schuessler (2013).
Note that Kant is here classified as a deontologist to contrast him with consequentialism but not with teleological ethics. Whether Kant’s ethics are teleological is a different question and requires a different understanding of deontology, see Bambauer (2011).
See Horder (2004: 17).
This reason for clear rules is emphasized in Goldman (2001 pp. 33).
This implication was emphasized by a reviewer.
At this point, an option for a peculiar form of threshold deontology (see Fn 2) arises. .
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Schuessler, R. Violating Strict Deontological Constraints: Excuse or Pardon?. Criminal Law, Philosophy 9, 587–601 (2015). https://doi.org/10.1007/s11572-013-9278-x
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DOI: https://doi.org/10.1007/s11572-013-9278-x