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Sigh... deep and mournful
It's a sad day when learns one of one's friends, even a distant one with whom one is pretty much out of touch, turns out to be out of touch in a way one finds, at best disturbing; at worst, reprehensible.
Eugene Volokh thinks torture, as a norm in judicial punishment isn't wrong. Worse, he seems to think it laudatory.
I've not been reading the Volokh Conspiracy much lately because I have been a coward. I dislike the amount of time I have spent in the past year or so defending what I do for a living, while trying to correct those who either see it as evil, or needing torture to work best. Eugene's various comments on the matter (that torture, per se, isn't necessarily to be shunned... the Ticking Bomb defense, writ large) made me unwilling to wade in much where so many others, with wider followings than mine, were doing yeoman's work.
But this, gives me the willies.
If you look at the bottom you will see links to more of his general philosophy on the matter, but in brief I think it can be summed up like this. "Make criminals suffer, not so much to discourage others, but because vengeance is good for society."
His summation of his views is this, One can certainly reach a different judgment than I do: Even if one thinks there's some moral benefit to executing the Eichmanns or even the serial rapist-killers, one might say that the benefit is small enough that it's exceeded by the risk of error, and the very serious moral cost of that error. As I mentioned at the outset, I am keenly aware that I may be wrong on this general question, and the matter that causes me the most trouble is precisely this one. Yet my tentative current sense is that for a small number of extraordinarily monstrous crimes, the need for retribution is so strong — and the risk of error can be made so low — that not just death but deliberately painful death is the proper punishment.
The part I have the most disagreement with is this one, from higher up the piece,
"5. Humanity: Likewise, I think, with Mark's argument that deliberate infliction of pain, even on monsters, "makes the person who engages in it a little bit more of a beast, and a little bit less of a human being, than he would otherwise be." First, we should recognize that this is a metaphor; I may be mistaken, but my sense is that most literal beasts (i.e., animals) don't actually try to inflict pain as punishment for wrongs. Literally speaking, this desire is quite characteristic of human beings (though perhaps some other higher primates might be included; I'm not sure). This doesn't make Mark's argument wrong, but only shows that we need to look behind the metaphor.
So what's behind the metaphor? It could be a judgment that it's beastly, less-than-human, and thus morally improper to succumb to our visceral emotional impulses. But I don't think that's what Mark literally means. Love, empathy, the desire to pick a mate, the desire to have children, and other worthy emotions are also visceral emotional impulses; while we should certainly indulge in them with rational caution and care, there's nothing wrong in following emotions, and it's sometimes bad to resist them.
I take it, then, Mark's point is that it's beastly, less-than-human, and improper to indulge this particular emotion. But that too, I think, assumes the conclusion. When someone rapes and murders twenty children, why is it a "beastly" impulse as opposed to a worthy one to try to exact a harsh retribution? Mark acknowledges that retribution in general is a proper goal of punishment — but his argument doesn't, I think, explain why this particular sort of retribution is not. (To be fair, he does say "in my eyes, at least" — here we may be returning to a point I mentioned in my original post, which is that a lot in this debate rests on people's visceral moral intuitions.)
My response to this is that I have met people who have crossed the line, and been torturers, most of those in the pursuit of what they deemed to be higher moral aims (that is to say they were not indulging personal desires, not wallowing in some deviant urge, whereby they got a specific pleasure from inflicting pain on those who were not able to avoid it) and they are now damaged, mentally, and morally. They no longer see people as people. They see some as being not-quite people (I don't know how better to put it) and therefore not to be treated with the same respect, humanity; if you will, that everyone else gets.
The problem is, that as time goes on, they seem to have put more and more of the world into the category of, "not quite human."
This is not a new thing. A huge amount of the shift in human relations, the benefit of nations, even of empire, is to increase the number of people who counted as people. The Clans of the Highlands used to exterminate each other, root and branch, because those not in one's own family weren't quite as human. The scale shifted too, after all, those who weren't speakers of some form of Gaelic were less human still.
Read the Icelandic sagas; we see people casually settling scores by killing people's slaves. Person A (a family member) had given grave offense, so that night person B whacked person A's favorite slave in the side of the neck with an axe. It made him feel better, proved a point to his father (person A), but wasn't all that nice to the slave. More interesting, one must presume Person B knew the slave, had known him for years, but didn't think his life was as important as making the point.
Where am I going with this? I don't want to live in a place where hanging someone with piano wire, from a meathook, is seen as not enough punishment (and Eugene makes exactly that argument).
Call me sentimental, but if we are to have a death penalty, I want it to be more parallel to putting down a rabid dog; distasteful, but a sad necessity; and done without passion, than to having heritics hung, drawn and quartered.
Appealing to the base in human nature seems to me a poor thing, and I don't see that vengeance has had a calming influence on the countries which put it's practice into graphic; even public methods of punishing malefactors.
Eugene Volokh thinks torture, as a norm in judicial punishment isn't wrong. Worse, he seems to think it laudatory.
I've not been reading the Volokh Conspiracy much lately because I have been a coward. I dislike the amount of time I have spent in the past year or so defending what I do for a living, while trying to correct those who either see it as evil, or needing torture to work best. Eugene's various comments on the matter (that torture, per se, isn't necessarily to be shunned... the Ticking Bomb defense, writ large) made me unwilling to wade in much where so many others, with wider followings than mine, were doing yeoman's work.
But this, gives me the willies.
If you look at the bottom you will see links to more of his general philosophy on the matter, but in brief I think it can be summed up like this. "Make criminals suffer, not so much to discourage others, but because vengeance is good for society."
His summation of his views is this, One can certainly reach a different judgment than I do: Even if one thinks there's some moral benefit to executing the Eichmanns or even the serial rapist-killers, one might say that the benefit is small enough that it's exceeded by the risk of error, and the very serious moral cost of that error. As I mentioned at the outset, I am keenly aware that I may be wrong on this general question, and the matter that causes me the most trouble is precisely this one. Yet my tentative current sense is that for a small number of extraordinarily monstrous crimes, the need for retribution is so strong — and the risk of error can be made so low — that not just death but deliberately painful death is the proper punishment.
The part I have the most disagreement with is this one, from higher up the piece,
"5. Humanity: Likewise, I think, with Mark's argument that deliberate infliction of pain, even on monsters, "makes the person who engages in it a little bit more of a beast, and a little bit less of a human being, than he would otherwise be." First, we should recognize that this is a metaphor; I may be mistaken, but my sense is that most literal beasts (i.e., animals) don't actually try to inflict pain as punishment for wrongs. Literally speaking, this desire is quite characteristic of human beings (though perhaps some other higher primates might be included; I'm not sure). This doesn't make Mark's argument wrong, but only shows that we need to look behind the metaphor.
So what's behind the metaphor? It could be a judgment that it's beastly, less-than-human, and thus morally improper to succumb to our visceral emotional impulses. But I don't think that's what Mark literally means. Love, empathy, the desire to pick a mate, the desire to have children, and other worthy emotions are also visceral emotional impulses; while we should certainly indulge in them with rational caution and care, there's nothing wrong in following emotions, and it's sometimes bad to resist them.
I take it, then, Mark's point is that it's beastly, less-than-human, and improper to indulge this particular emotion. But that too, I think, assumes the conclusion. When someone rapes and murders twenty children, why is it a "beastly" impulse as opposed to a worthy one to try to exact a harsh retribution? Mark acknowledges that retribution in general is a proper goal of punishment — but his argument doesn't, I think, explain why this particular sort of retribution is not. (To be fair, he does say "in my eyes, at least" — here we may be returning to a point I mentioned in my original post, which is that a lot in this debate rests on people's visceral moral intuitions.)
My response to this is that I have met people who have crossed the line, and been torturers, most of those in the pursuit of what they deemed to be higher moral aims (that is to say they were not indulging personal desires, not wallowing in some deviant urge, whereby they got a specific pleasure from inflicting pain on those who were not able to avoid it) and they are now damaged, mentally, and morally. They no longer see people as people. They see some as being not-quite people (I don't know how better to put it) and therefore not to be treated with the same respect, humanity; if you will, that everyone else gets.
The problem is, that as time goes on, they seem to have put more and more of the world into the category of, "not quite human."
This is not a new thing. A huge amount of the shift in human relations, the benefit of nations, even of empire, is to increase the number of people who counted as people. The Clans of the Highlands used to exterminate each other, root and branch, because those not in one's own family weren't quite as human. The scale shifted too, after all, those who weren't speakers of some form of Gaelic were less human still.
Read the Icelandic sagas; we see people casually settling scores by killing people's slaves. Person A (a family member) had given grave offense, so that night person B whacked person A's favorite slave in the side of the neck with an axe. It made him feel better, proved a point to his father (person A), but wasn't all that nice to the slave. More interesting, one must presume Person B knew the slave, had known him for years, but didn't think his life was as important as making the point.
Where am I going with this? I don't want to live in a place where hanging someone with piano wire, from a meathook, is seen as not enough punishment (and Eugene makes exactly that argument).
Call me sentimental, but if we are to have a death penalty, I want it to be more parallel to putting down a rabid dog; distasteful, but a sad necessity; and done without passion, than to having heritics hung, drawn and quartered.
Appealing to the base in human nature seems to me a poor thing, and I don't see that vengeance has had a calming influence on the countries which put it's practice into graphic; even public methods of punishing malefactors.
We have met the enemy--
Yes.
There has to be something that makes us better than them. There has to be a line we draw because we are moral animals. We draw that line. Us, right here--the line that makes us not-Mengele. When the line is crossed (as in, for example, the Tuskegee syphilis study) then we are diminished, made less human. Whatever we defend becomes unworthy.
We elevate ourselves by choosing the just path; we diminish ourselves by choosing the easy, reflexive, monstrous path.
Every single time we stop treating other human beings as human beings, we're one step closer to becoming that evil empire. We're one step closer to Stalin, Hitler, Hussein, and the rest.
And we become that rabid dog that has to be put down. Not because vengeance is good for you (it isn't, as you've noted) but because rabid dogs have to be put down, because there ain't no telling who they're gonna bite.
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What have we become? Ten years ago I would never have believed that it would be a common American belief that torture was okay.
Ten years ago it WAS a common American belief
Fifteen, actually, that I documented it.
But it was already well-mainstreamed long before that, which is why an entire class of 30-odd upper-middle-class white Christian New England young people could be utterly complacent about the idea of torturing not only the terrorist-with-the-ticking-time-bomb, but the idea that they might have got the wrong guy, so long as it was "for the good of the many," in a mandatory Ethics class for not only phil majors but also pre-med and others, in 1990 or 91.
the same culture was also okay with vengeance
This is why I made myself unpopular in HS and college by gloomily predicting the return of the Games, btw, and being pooh-poohed by my sane, reasonable teachers and elders. Bloodlust cannot be sated: the Terror should have taught us that, two hundred years ago.
More recently, this came up on Usenet discussions of fantasy, and the phenomenon of the immoral good guys, who are not presented as flawed heroes who need spiritual help and redemption, but au contraire the presentation is meant to make the audience feel guilty for being too wussy to approve of torturing Evil Minions, a process which was aided by the literary device of the puppy-killer - that is to say, the Evil Villain and his/her Minions were always shown to be worse than Our Heroes, no matter how unsavory they might be drawn, by virtue of the fact that they were willing to kill sweet little puppies, so to speak - the Villain in the first Goodkind book who molests and tortures children to death to enhance his power being a classic case in point. Thus, we can do anything short of that, and break all the rules - rule-breaking itself made a Nietschean virtue, in fiction as in the "real world" - in order to bring about the "greatest good of the greatest number."
As Chancellor von Bethmann-Hollweg said in '14, "Not kennt kein Gebot" - that is, "Necessity knows no law" - which is exactly where we are today, as a society.
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All one has to do is believe there is either a valid use for torture, or that it works, and the ticking bomb becomes the irrefutable argument.
The dead cat is, of course, that torture works. The flaw is the person propounding the argument knows he would crack, if he knew where the bomb was; and you tortured him.
What he fails to ponder is what happens when he doesn't know where the bomb is, and gets tortured.
TK
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You got me.
Spacial and relational and definitely a mind to contemplate on a lonely night. With each segment of this piece on a man living in a world that
really does not have a crime that does not have a punishmental decision
you showed me, that every step you take must be might special in the prone.
Stepping back. Good job Sir! smiles
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You see this every time there is a conviction on a multiple murder, especially one involving children: people who claim that it's a pity we're just going to put the evil one to death, that they deserve to be tortured beforehand.
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Besides the ever-so-inconvenient possibility that said "skag" might not be actually guilty of something.
The fact that I can get off on something like this doesn't mean it's a good thing to do--it means that I'm a vengeful bitch with a nasty cruel streak. Giving that sort of tendency free rein and justifying it as "for the greater good", or "they asked for it" or "it was cathartic" doesn't really make the world a better place. I know what kind of temper I have. Mme Defarge would look like your Aunt Phoebe, the one who uses the no-kill mouse traps because she's so tender-hearted. Do not give me that excuse, because there are people who are even worse out there, and we'd be more than ready to act under the "he needed killin'" rule.
Experiment: Ask the proponents if they themselves, or a male relative of theirs committed a rape, and was convicted, and the law permitted his victim to kill him by any means they chose, as slowly or as quickly as they liked. Would they still think this sort of torture/death was a good idea, and reasonable to permit, on the grounds that it would discourage others, and help the victim "get over" what had happened.
The fact that it may be common among humans to enjoy taking vengeance as vilely as possible on those they feel have wronged them doesn't make it a good thing. In fact, it's one of the leading causes of social disorder in some countries.
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Terry, may I quote you in my blog and provide a link back? I have felt like disowning my family regarding the Gonzalez nomination, and now Volokh feels free to opine so chillingly about state-sanctioned torture. I appreciate your stating the objections to Volokh's position so cogently.
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You are hereby, and without limit, given permissions quote, to link, to use as reference; in perpetuity. These posts are public. Anyone who googles me, shall find them and so I see no reason to hinder those who like me from making them more public.
Heck, I'm flattered when it happens (there is someone who has referred to me in, IIRC about.com
TK