Abstract
The problem of “dirty hands” has become an important term, indeed one of the most important terms of reference, in contemporary academic scholarship on the issue of torture. The aim of this essay is to offer a better understanding of this problem. Firstly, it is argued that the problem of “dirty hands” can play neither within rule-utilitarianism nor within absolutism. Still, however, the problem of “dirty hands” represents an acute, seemingly irresolvable, conflict within morality, with the moral agent understood, following Nagel, as necessarily holding mixed, absolutist-consequentialist moral intuitions, pulling in opposite directions. Secondly, a distinction is drawn between real situations of “dirty hands,” and other conflictual scenarios, which are commonly, but unjustifiably placed under the metaphorical title of “dirty hands.” Finally, it is suggested - utilizing Nagel’s own ideas, as developed in his later work, and Sen’s notion of evaluator relativity—that the moral “blind alley” manifested in the problem of “dirty hands” may not be totally blind after all, at least from the situated agent’s own internal point of view (as opposed to that of an external observer trying to put herself in the agent’s position by way of moral simulation). Thus, contrary to Walzer’s approach, it is possible for a person (politician) acting in a situation of “dirty hands,” not to believe herself to be guilty, but still be a moral person.
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Notes
Shue’s version of the “ticking bomb” scenario included a fanatic, perfectly willing to die rather than collaborate in the thwarting of his own scheme, who has set a hidden nuclear device to explode in the heart of Paris. There is no time to evacuate the innocent people or even the movable art treasures and the only hope of preventing tragedy is to torture the perpetrator, find the device, and deactivate it.
As the Israeli experience demonstrates, for example, “ticking bomb” scenarios were probably not mere hypothetical cases also prior to September 11 (Dershowitz 2003: 283–285; Gur-Arye 2004; HCJ 2006). Naturally, however, America’s first encounter with terrorism on a mass scale, performed on American soil, redefined the whole academic discourse on the issue of interrogational torture.
It seems that this is how Dershowitz would like us to understand his suggestion to regulate the use of coercive interrogation methods, through the issuance of judicial warrants.
For an illuminating discussion of the idea of mixed moral intuitions see generally Nagel (1972).
Citing Mackie (1977, 1990).
Alternatively, assuming, arguendo, that there can be a strict rule-utilitarian prohibition of torture, a rule-utilitatrian opting to torture in a particular case could be seen as one who has modified, or at least suggested to modify such rule.
For use of this term in order to characterize those cases in which it might be justified to violate the prohibition on torture see generally Gross (2004).
Philippa Foot takes this view further (not necessarily in relation to torture), rejecting even the basic consequentialist principle that “there are better and worse state of affairs in the sense that consequentialism requires” (Foot 1985: 199).
Apart from Kant himself, it is hard to think of a pure absolutist when it comes to the issue of torture, as almost all commentators would ultimately concede that the use of torture might be justified when the stakes are high enough (see Allhoff 2012: 128). Such commentators include devoted opponents to torture, such as Bellamy (2006), Shue (1978), Sussman (2005) and Žižeck (2002). Perhaps Waldron (2005) is the closest to a pure moral absolutist on the issue of torture, among contemporary writers.
Nielsen argues that from a moral perspective, there is no dilemma of dirty hands, and that any such conceptualization is a mistake. While he seems to characterize his own approach, which he denominates “weak consequentialism,” as a mixed deontological-utilitarian theory, I believe it is, in fact, a textbook example of a rule-utilitarian approach. This becomes quite evident towards the end of his essay (2000: 149–153).
Several attempts have been made by philosophers—with limited success—to bring together utilitarianism and absolutism into one coherent moral system. Such attempts include, among others, “threshold deontology” (Moore 1989: 327–335), “weak consequentialism” (Barry 1991: 40–77; Nielsen 2000: 144–145), “soft deontology” (Anderson Schuh 1992) and “contextualist consequentialism” (Nielsen 1992: 73).
For use of the term “closed moral system” in relation to the “dirty hands” metaphor see, e.g., Griffin (1995: 252).
Nagel (1986: 180) also describes this moral dilemma as a “collision between subjective and objective points of view,” terms which I shall return to later in this essay.
Finlay (2011: 422) similarly argues that according to Walzer, the absolutist side of the "dirty hands" dilemma is a matter of private moral conscience, while the utilitarian side is a matter of political necessity.
This definition, it should be noted, is not entirely accurate, since situations of “dirty hands” are not conceptually special to politicians or military man. See infra section 5.
In the torture-example used by Walzer in Political Action, the captured rebel leader is tortured in order to extract information about bombs hidden in apartment buildings around the city and set out to explode within the next 24 h (Walzer 1973: 167). I reckon this is not a threat to the ongoingness of the community and therefore not a “supreme emergency,” as defined by Walzer in Emergency Ethics.
For the sake of completeness, Nagel mentions a third type of agent-relative reasons—reasons of obligation—which “stems from the special obligations we have toward those to whom we are closely related” (1986: 165).
Nagel clarifies that deontological reasons should not be understood “as the expression of neutral values of any kind,” for they have their full force against the particular agent doing something—not just against its happening (Ibid: 177).
In most circumstances, deontological restrictions would also override neutral reasons.
It is interesting to note the developments in Nagel’s own position over the years: while in 1972 he defines “dirty hands” scenarios as a “moral blind alley” (Nagel 1972: 143), 14 years later he expresses the view that “deontological constraints may be overridden by neutral reasons of sufficient strength” (Nagel 1986: 176).
A related example in this regard, albeit not in the context of elections, would be the attempted assassination of Adolf Hitler on 20 July 1944, in what is known as Operation Valkyrie (e.g. von Boeselager 2009).
In fact, absent such complicating circumstances, it is highly questionable that the fact of a specific politician winning a genuinely democratic election, as opposed to another, can have impersonal value in the sense discussed herein.
It is not clear whether Walzer believes that the consequential reasons for cutting the deal include the “good” that the politician may do in the future, after entering into office, and if so—whether such a position is theoretically plausible. Clearly, however, the political-deal example, as presented, lacks sufficient detail on even what that “good” might be, not to mention its probability to materialize.
Walzer’s intuition may have led him to raise an additional argument in favor of cutting the deal, which is that the politician would otherwise be violating his commitment to his supporters “to do within rational limits whatever is necessary to win” (Walzer 1973: 165). However, this argument frames the dilemma as if it were a dilemma between conflicting deontological constraints, which is irrelevant and totally at odds with Walzer’s own understanding of situations of “dirty hands.”
Nagel’s example for a clash between consequential and deontological ethics talks of a person involved in a car accident on a deserted road, with the other passengers badly injured. He finds an isolated house and asks the woman, who is in the house with her grandson, to lend him her car in order to seek help. The terrified woman refuses and in order to persuade her to give him the car keys, the person twists the grandson’s arm (Nagel 1986: 176).
I believe that such an answer may require some empirical research into the decision making process of actual participants in situations of “dirty hands.” Several writers have used psychological research—particularly Milgram’s Obedience Experiment and Zimbardi’s Prison Experiment—to support an argument for an absolute legal (but not necessarily moral) ban on torture (Brown 2006; Clarke 2008; de Wijze 2006; O’Rourke et al. 2005). A more comprehensive integration between psychology and ethics in the context of “dirty hands” scenarios is still lacking, however. For one interesting attempt to examine the torturer’s mental state, albeit not in the context of a “dirty hands” scenario, see Osiel (2004).
According to Sen, the idea of evaluator relativity explains how consequentialism can actually incorporate what are usually perceived as deontological constraints. I do not mean to advocate for a similar position, but rather draw on this idea more loosely, focusing on the notion that “the same states of affairs can be very good-relative-to-x whilst less good-relative-to-y” (Suikkanen 2009: 1).
I use the term “moral judgment” in the present discussion to refer to the outcome of the process of moral reasoning, as opposed to “moral intuition,” which refers to the beginning of that process. Admittedly, intuition may itself be the basis for moral judgment and there is controversy over whether (and if so to what extent) conscious reasoning actually affects our moral judgment or whether it only serves as a post-factum strategic method to justify our actions (Cushman et al. 2006; Haidt 2012: 3–94; Pizarro and Bloom 2003). I do not, however, need to go into that discussion in the present context.
My attempt to put myself in this kind of situation is “hypothetical” in the sense that my presence in the situation is only by thought. This is totally different from arguing that ticking-bomb scenarios are artificial in themselves, as suggested, for example, by Shue (1978).
For a similar view in the field of business simulators see, e.g., Größler (2004: 269).
For clarity, evaluator relativity (or positional objectivity) is about the objectivity of what can be observed from a specified position by any normal person occupying that position. What is relative in this regard is the position of observation, not the subjective working of a person’s mind (Sen 2009: 158).
It can also be argued that from an office holder’s point of view, she has a special, agent-relative, obligation towards her nation, which a person not in that position doesn’t have and which it is also very difficult to grasp from an external perspective. For simplicity, however, I will not pursue this line of argument in this essay.
For clarity, nothing in my analysis excludes the possibility of finding a person legally culpable for ordering the torturing of a person in a ticking-bomb scenario. While I believe that the insights offered in this essay should be taken into account when determining if, how, and to what extent, such person should be punished, morality and legality do not fully overlap, and as discussed at the outset, there may very well be reasons to believe an act to be moral, but to legally ban it nonetheless.
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Acknowledgments
I am grateful to political theorist Professor Tamar Meisels, Tel-Aviv University, and to the reviewers for helpful comments.
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Special Counsel, Herzog, Fox & Neeman; PhD Candidate, University of Haifa Faculty of Law; M.A. (Political Science) 2009, Tel-Aviv University; LL.M. 2007, New York University; LL.B. 2003, Tel-Aviv University; B.A. (Communications) 2002, Tel-Aviv University.
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Yemini, M. Conflictual Moralities, Ethical Torture: Revisiting the Problem of “Dirty Hands”. Ethic Theory Moral Prac 17, 163–180 (2014). https://doi.org/10.1007/s10677-013-9429-0
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DOI: https://doi.org/10.1007/s10677-013-9429-0