Kant and shooting down hijacked airliners

Wasn’t there something on CT earlier in the week about Trolley Problems being a bit silly?

@reason: didn’t transsexual people exist in the first century?

Even then, you have to be convinced that your own intention is preventing the plane from hitting, not hastening the deaths of the passengers and terrorists

I’d hope that those making the decisions would not be interested in hastening the deaths of the passengers, at least. But as Moe mentions above, it’s at least not at all obvious that Kant would require the decision the German court suggests here. I’ve only skimmed it, but the idea that, in such a case, the government would be “intentionally” killing the innocent passengers is at least not obvious, and I don’t see why Kant would have to accept that, so it seems more the reasoning of the court that’s to blame than Kant here. (I’m not sure that Chris is saying otherwise.) The court seems to suggest that _either_ we are merely doing a crass utilitarian balancing of lives here _or else_ we must say this course of action is completely impermissible, but that’s just wrong (and not something Kant is committed to, I think.)

As an American lawyer, however, what interests me is that the case could be brought at all. I’m not a huge fan of the rules of standing in the US, but I’m fairly sure that here the people who brought the complaint would not have had standing to do so, and in this case that doesn’t seem an unreasonable outcome.

As you suggest, I don’t deny that Kant might have said something as crazy as what the court says (he does say a lot of crazy things, after all, though I think there’s quite good reason to think many of them don’t follow from what’s important in his philosophy) but what’s odd about what the court says, and what Ripstein says here, is the idea that in such a case the _passengers_ would be “used” as a means to saving the others. The passengers are beside the point! They are not a means in this case at all. I’d agree, probably, that the passengers cannot be “conscripted into the project of the Ministry of the Interior”, but that just seems like a very odd, and not at all required, way to understand what’s happening here. The case just isn’t at all like one where a passenger is “ordered to stand in the path of a bullet”, and it seems to me that Kant’s thought is helpful here in seeing why, despite what Ripstein seems to suggest. (My copy of the book is in my office, so I can’t see what else he might say or the context.) I’m no huge fan of lots of double-effect reasoning, but this doesn’t seem like a hard case to me.

Once you’ve decided to shoot down the airplane and imprison the utility monster, you may as well forget moral philosophy and wing it. Or once you’ve decided to let the airplane crash or let the utility monster go free, you’re a fanatic. I’m not sure that there is all that much in between, although I’m sure the moral philosophers will correct me here.

I think the post somewhat misrepresents the argument of the German constitutional court. I am not a constitutional scholar or a lawyer, but in German constitutional jurisprudence it is a well-established principle that there can never be a balancing of lives against one another, and it is never permissible to define by law there to be situations where someones life is forfeit in order to save somebody else’s life. Life is treated as an absolute that is inviolable, as a matter of law.

This does not mean that German law is unable to deal with a situation where somebody is killed to save somebody else, e.g. a police officer killing a hostage taker in order to save a hostage. In such a situation the officer is justified in using force to repel an illegal attack on another person, and he will be justified in his own breaking of the law (against killing) because of this. This is set down as an exception in the criminal law which will shield him from prosecution.

The same applies if the hostage rescue goes awry and an innocent hostage is killed: the officer would be shielded from criminal prosecution by his lack of intent (to kill the hostage) and the justification for using force in this situation in the first place.

The point here is that there is no law that positively authorizes him to kill a hostage taker, or to kill a certain number of hostages (“Two is okay, but three would be too many, if only two are saved…”) in the rescue. This kind of counting of lives is seen as incompatible with fundamental human dignity. There is only the shielding from criminal responsibility for his actions, leading to the death of a human being, which can always be subject to a court inquiry.

And this is exactly what the law in question did: weighing the lives of a larger number of people on the ground vs. those (of a presumably smaller number) in the airliner.

I rather like this legal theory, since it provides for a strict check on the use of deadly force by agents of the state. I would take exception to a law that authorizes killing in certain situations in advance. I really see this as a slippery slope, since I believe that in practice rules authorizing killing would be abused and lead to ever weaker justifications.

In principle (apart from the additional problems of using the military for internal police functions), the same justification theory could be used to shoot down an airliner. However, this would have to be justified in court later, and this was deemed too much of a strain for the (military) officers that would have to be involved.

My solution would be to not authorize this (the downing of an airliner) by law, and then when this situation indeed arises, hoping that somebody does what he thinks is right, in the knowledge that he will be subject to legal proceedings afterwards. Perhaps that is really asking too much of the people called upon to make the decision, but I see it as much more dangerous to have some bean counter cross every t and dot every i in advance and then shooting without regret and hesitation.

Perhaps it is is really just an application of the principle “Hard cases make bad law”, and it is wise to not have a law that covers every conceivable extreme situation. In such a situation, I trust in people to try to do the right thing, and I’d rather have that they feel the weight of the responsibility for their decisions, instead of getting absolution in advance.

As an aside regarding the question of standing, in German law it is possible to ask the constitutional court to rule on the constitutionality of a law in the abstract. Such an action (abstrakte Normenkontrollklage) can in any case be brought by members of parliament or the federal or state (Länder) governments.

An individual complaint (Verfassungsbeschwerde) can be brought only after the normal course of appeals has been exhausted, or in cases where there is no other recourse, and where the constitutional court rules that there is an overwhelming public interest in the matter to be decided. Presumably this was on of the latter cases.

Niether Kant nor a given Kantian need accept the premise: that shooting down the plane violates the passengers’ dignity.

Sorry- I see Matt already pointed this out. Did the GCC explicitly cite Kant, or is that just Ripstein?

If we accept the premise that the passengers will be dead no matter what, and given that there is so little morally relevant value to any possible agent for being alive an extra 2 minutes on a hijacked plane, it seems reasonable, as Chris argues, to treat these agents as if they were already dead when assessing normative standards for what the state can do. (I am not sure what the right way to interpret Kant is on this; I regularly misjudge the gulf between Kantian inspired theories and Kant).

I think Raven rightly identifies what is really going on in the German legal decision.

My solution would be to not authorize this (the downing of an airliner) by law… I see it as much more dangerous to have some bean counter cross every t and dot every i in advance and then shooting without regret and hesitation.

The court wants to avoid saying something like this:

‘it is sometime ok for the state to kill innocent people when 1) there is no moral value of any kind in not killing and 2) great moral value is achieved by killing, but because such a law requires instituting real institutional arrangements for the public administration of the law that could never in the real world satisfactorily ensure that criteria 1 & 2 are met and opens the door to grave mistakes, no such law should be allowed in our non-ideal world.’

It is just a lot less controversial (except among political philosophers) to say that “passengers cannot be used to save the people” even though it is obvious that in the example no moral agents are being used as tools, rather we choose not use the lives of the people on the ground as a means to upholding a false self-image of non-controversially respecting a right to life.

If only for the sake of a different angle, banking off y81: could we credibly assume the passengers are doing all that is within their power and will and capability to bring down the plane from within — or at least, that they would be doing so if they had sufficient knowledge of the plane’s trajectory — and that by shooting down the plane we’re helping them to achieve that goal?

I propose that not shooting down the plane violates the passengers’ dignity, by implying they are the kind of people who would not want the plane shot down, i.e. that they are willing to accept catastrophic loss of life in order to live as doomed hostages for a few minutes longer.

I think we should shoot down the plane and that dropping the atomic bombs saved lives.

But I don’t think it is such an absurb conclusion. What Mike Huben said.

I kind of admire the sentiment and the conclusion.

Are we concluding that the kids on the plane would have grown up to be the type of adults that would want the plane destroyed.

How do even volunteer Kantian armies work?

Forget Kant, that court decision was clearly correct. Giving the government the right to decide – on a judgement call – to kill its own citizens would set a horrible precedent.

Whoops!

Of course I meant “van der Lubbe” in the last para, not Lubbers. As intriguing a set of possibilities as might be opened up by the conspiracy theory that Ruud Lubbers was behind the Reichstag Fire, no, I am not that crazy. Just demented and prone to confabulation.

P.S. Luckily, our Supreme Court here in the US doesn’t have any legalistic scruples – Kantian or otherwise – about the government conducting extrajudicial executions and the like. Silly Germans.

Reminds me of an old film, called Fail-Safe, by Sidney Lumet. Americans nuke Moscow by mistake, and then, as a compensation, to make it fair, they nuke New York too. Now, that’s a lack of respect for human dignity, right there.

_why wouldn’t you support a similar law authorizing torture in the event of an extreme emergency?_

Well I don’t think it is comparable at all. In the airliner case, we’re talking about killing people _who are going to die anyway_ , in a very similar manner, in a matter of seconds or minutes and thereby saving the lives of many many people. If you want a comparable case it would be an innocent person rigged up as a suicide bomber and wandering into a crowded shopping mall, sports arena, whom you can (for some reason) only stop by shooting them now.

“Well I don’t think it is comparable at all.”

In the ticking time bomb scenario that is referred to, the basis of comparison is that the govt is similalry allowed to do something otherwise denied to it — shoot down a civilian airliner or torture a suspect — because to fail to do so would supposedly result in far worse consequences than the loss of the airliner or the breach of the laws against torturing suspects. There may be other differences, but I think that it is this trade-off that is what is being discussed here, and it seems a similar trade-off in both cases.

What if the plane were an enemy military aircraft which happened to contain civilian hostages (and the intercepting forces knew this)? I don’t see a huge difference ethically. The passengers are not being ‘conscripted’ into standing in front of a bullet by the state, they’d just be collateral damage. If the passengers and hijackers miraculously survive after the plane is taken down, so much the better. Are German troops ever permitted to fire their weapons if there is a reasonable risk that civilians will be hit?

Now if the state tried to order the passengers to regain control of the plane from the hijackers at all costs, and/or to sabotage the plane so it crashes in an uninhabited area, that would be a different matter. I suppose if passengers were rational, wanted to live and were sure of the hijackers’ motives, they’d do this anyway, i.e. the hijackers would have to kill or incapacitate every last passenger before they could take full control of the plane. Of course, such courage by the passengers would make it practically impossible for terrorist groups to hijack large commercial airliners and fly them into buildings in the first place.

“In the airliner case, we’re talking about killing people who are going to die anyway”

Except we don’t know that. Just as we don’t know that torturing the terrorist would save all those people. In the abstract, however, we can set up both cases as if we had certainty, and then both are fairly similar except that in the one case you are killing innocent bystanders while in the other you are only torturing a terrorist. Why is it absurd to reject shooting down an airliner but it is even required to reject torture, if hypothetically both acts would save lives?

“…not their reasoning in terms of human dignity.”

Well, I’m not a lawyer, much less a German lawyer, but I suspect that the judges were following the language of some statute or prior precedent-creating judicial decision in their choice of words. That’s what I would expect of a legal decision in a case like this, that after they, quite reasonably, fail to find any compelling public policy interest in allowing this new regime of a “license to kill” airliners, the judges go through all the rights that any statute or precedent grants the airline passengers, including perhaps as a very minor consideration, their right to be treated with dignity, that would be violated if the right of the govt to shoot down airliners with no due process were upheld.

I don’t see any reason to blame (or praise) Kant for this obsession with completeness, considering all the rights, however trivial, of the passengers that would be trampled, or the casting of the question in terms of rights, obligations and procedural limitations, rather than the direct consideration of the extremely hypothetical ethical dilemma facing some highly notional Air Force general. The Law had these obsessions, for good or ill, long before Kant.

Except we don’t know that.

But we do know it, with moral certainty. The airline hijackers have announced their intentions, and the captured terrorist has boasted (and even offered evidence) that he knows where the bomb is hidden and that it will explode in one hour.

@7
Somehow I would expect a philosophy professor to note that ordering someone to stand in front of a bullet is different from blowing up a construction in which someone is currently sitting. Doesn’t Sandel present this in such a way that viewers will think this for themselves?

The obvious solution is not to have laws and have everyone work out everything for themselves at the moment of action, which is what moral purity demands anyhow once the possibility is admitted that there is a chance the law may demand an immoral act. Otherwise I think you just have to jettison absolute moral purity (and hopefully in a way other than “we’re all sinners so anything I do may well be uncondemnable”).

Chris: I’m not a consequentialist

Why not? You seem like a sensible fellow.

“Contra Rich, this is an excellent example. If you’re reasonably certain about the facts as stated, then of course you’re permitted—even obliged—to shoot the (inadvertent) bomber.”

An excellent statement of left authoritarianism. If you’re reasonably certain, you are obliged to shoot.

But you’re a tough-as-nails terrorist, CJ. We don’t know if we’re dealing with a he-man (or she-woman) like you or with a terrorist who can’t stand the sight of his/her own blood and will babble the truth as soon as the instruments of torture are unveiled. The chances of one are quite as good as the chances of the other. Besides, if we know that the bomb is going off soon, and we know that this terrorist knows where it is, and we’ve already tried all the non-physical interrogation techniques we can think of to no avail, and there’s time to look where he/she tells us it is and then come back and torture him/her even more vigorously if he/she was lying the first time and he/she knows this, and we’re already evacuating the building and taking all possible steps to minimize the loss of life — all conditions that don’t seem nonsensical, instrumentally or any other way — then the ten thousand family members of the one thousand people about to be killed would be seriously pissed, and rightly so, if you continued the (so-far) unsuccessful interrogation methods for no other reason than that a dangerous precedent might be set.

“All of this balancing and over-riding individuals rights with public policy considerations is very Anglo of you.”

I’m not sure this is right.

First, the US constitution doesn’t allow, at least explicitly, the over-riding of rights by public policy considerations. (Vide gun control.) Yet the US is part of the Anglosphere.

Second, those countries whose constitutions do explicitly allow individual rights to be outweighed by public policy considerations, e.g. Canada (Section 1 of the Charter), Israel, and South Africa, got the idea originally from the West German constitution of 1948, as later interpreted by the German courts and then taken over into EU human rights law. (Don’t ask me for details, but that’s the general story.)

Though I agree with Chris that the specific German court decision being discussed is daft, at least given the reasoning it’s reported as employing, Germany actually seems to be the source of the kind of legal provision that can support the opposite decision.

I seem to recall that an almost equivalent proposition was the basis of “Sound Decision” by Randall Garrett and Robert Silverberg, which appeared in Astounding in 1956. If I’ve got it right, the plot line involves an out-of-control hypersonic airliner, packed with innocent passengers, and about to create a devastating shock wave over Long Island Sound as it re-enters the atmosphere. No hope for controlling or diverting it; no time to evacuate those on the ground, whom the shock wave will kill by the hundreds of thousands. The only choice is to shoot it down with a missile or let the disaster occur.

Notice that this version involves no baddies whatsoever.

A little more seriously than last time. We shouldn’t legislate these sorts of exceptions to behavior, because that sort of law is (and ought to be) useless and pointless. In an ideal legal system, there ought to be occasions (like this one) where we widely agree it is moral to break the letter of the law, and immoral to obey it. This fits Shining Raven’s statements, I think.

Anyone who is willing to kill for consequentialist reasons — even in the airliner case — should also be willing to accept the potential of their own death or punishment at the hands of the state, as a consequence of their decision. They should be willing to place themselves fully at the mercy of the state’s judiciary for their actions. Period. Anyone willing to shoot down the plane if it’s legal to do so, should also be willing to shoot down the plane even if it’s illegal to do so. Thus, the letter of the law should make these actions strictly illegal, and subject to no more lenient penalty than they would be in the absence of consequentialist reasoning.

This argument presumes a reasonable jury system, authorized to evaluate evidence and return a verdict pardoning or condemning the agent for their actions. But a slightly weakened argument along these lines ought to hold even if one knows punishment is guaranteed: the agent considering whether or not to shoot down the plane should presume s/he will be found guilty and penalized maximally. If preventing catastrophe and saving lives isn’t worth accepting that consequence, then perhaps it’s not worth bringing the lives of the airplane hostages to a more abrupt end.

“If you’re reasonably certain that a thousand innocent people will die if you do not shoot, then you are obliged to shoot.

Yes. You have some argument to the contrary?”

Yes, I do. The people who are reasonably certain that a thousand innocent people will die if they do not shoot are predictably paranoid, sadistic, panicked, or otherwise incapable of judging certainty properly. Or they claim after the fact that they are certain, but in fact were not certain at the time — or perhaps have some other motive entirely, such as the elimination of an enemy of the state, or the creation of the state of terror favoring the security system.

The importation of the rules of philosophical thought experiments into public policy questions reliably leads to authoritarianism. It’s flatly impossible to justify most of our political, legal, defense, and security systems on the assumption that people who are reasonably certain about things are right to be reasonably certain about them. Why have criminal courts? The cops are generally reasonably certain who did it. Why not just let the military declare martial law whenever they feel like it? The generals in charge are reasonably certain that it’s required.

The people here who like these arguments are just providing verbiage that tends to justify the security state. That’s all they’re doing.

CJ: I suspect that most people who would know where bombs are could

And on the basis of that suspicion, you’re willing to risk thousands of innocent lives?

And on the basis of that suspicion, you’re willing to risk thousands of innocent lives?

I can’t speak for CJ, but as for me: yes. It is well-known and well-established that torture does not produce reliable information, and does produce unreliable information. If I am asked to presume torture stands a computable chance of producing reliable information, then I am being asked to assess morality in a world that human beings do not inhabit, and I find that game uninteresting and potentially dangerous if the results are misinterpreted.

Salient: this has been experimentally falsified

I’m sure you’re right about the experimental result; but the equal probability mentioned in this case was not stated as a fact about the world but as a stipulation, for the sake of argument. Of course it would be very important, when making rules about torturing people in order to save thousands of lives, to make the requirements of certainty about this and all other aspects of the situation extremely stringent.

Of course it would be very important, when making rules about torturing people in order to save thousands of lives, to make the requirements of certainty about this and all other aspects of the situation extremely stringent.

Look, the kind of people we would want to punish for misbehavior are going to assert certainty no matter how stringent the requirements. We have to build assumptions about uncertainty into the system, and shouldn’t entertain thought experiments which require unreasonable certainty (i.e. the kind of certainty no one could credibly assert, and that only a devious malefactor would attempt to assert).

I agree 100% with the desirability of the court’s decision for exactly the reasons he outlines. I’m not sure how to read the court’s reasoning though. It’s kind of tricky to take legal reasoning and then evaluate it in the context of a moral philosophy that doesn’t recognize the constraints that the court functions under (and the expectations on them of what kind of arguments to offer). You’d really need to be an expert on the German constitutional court to make an argument about what kind of moral philosophy really underpins this decision, I think.

Salient: It is well-known and well-established that torture does not produce reliable information, and does produce unreliable information

As always in these discussions, no one seems willing to stick to the premises. The premises are that an immense catastrophe is very imminent (within hours), that the suspect definitely has the information needed to prevent it, and that there is definitely no way to obtain that information without resorting to torture. Everyone who’s ever posted or commented on CT, and probably everyone who’s ever even stopped by to read something on CT, agrees that, absent these premises, torture is inadmissible. There is simply no argument about that. So either try to demonstrate that the premises are impossible in principle or else try to show that, even if they hold, torture is inadmissible. But don’t simply pretend to accept the premises and then disregard them and argue from others, eg, that the question is about various ways of obtaining reliable information.

There’s no duty to stick to premises that are absurd. This is not a debating club.

I brought up the case of Menendez (and could have brought up innumerable “justified” police shootings) as an example of the fact that the officials are always “reasonably sure”. Yet you argue they should be allowed to act on their “reasonable certainty” not just as now by targeting individuals who have not committed a crime yet but are suspected of being imminently doing so (which is bad enough), but large groups of people. Why?

But in practice this is exactly what is happening! If you have a law like the one the Court struck down, it will be virtually impossible to hold officials accountable for their decisions.

If it hadn’t started out by making fun of a actual, real world court case, then you could claim that it’s all a meaningless debating club about theoretical principles, and that attempts to bring it back to real-world uncertainty are beside the point.

But it did. So really it’s a debating club for spouting authoritarian propaganda. Which is really rather disgusting.

Glen Tomkins @ 71: The arguments in your post, about the propensity of governments to tell whatever lies are necessary to deflect responsibility for wrong decisions, are certainly correct. But I am not persuaded that they have any applicability to the situation under discussion.

If these circumstances ever recur in real life, the decision-maker is likely to know exactly this: The plane is not going where it was supposed to go; it is not responding to instructions; it is headed toward someplace that is a likely target for terrorists. Certainty is out of the question.

The person making the shoot/don’t shoot decision will presumably be somebody with a military background. Military commanders, at all levels, make these kinds of decisions all the time, on less information and with less time to consider. Quite often, they kill the wrong people.

It’s 2011, and you’re still seriously defending ticking bomb scenarios. No arguments are really needed by this time. Epithets are.

roac @ 63: Yes. I assumed eveyone knew the Godwin story, because it appears in so many anthologies and shows up so often in late-night dorm-room discussions. The Godwin strikes me as pretty much a trolley problem, with added features (the appealing young girl, her innocent but lethal misdemeanor, and so on). But the other is rather more directly apposite.

Hey, you wanna complain about science-fiction, complain about the ticking-bomb scenario.

As always in these discussions, no one seems willing to stick to the premises.

You’re completely right I’m not, because if anyone actually cares what I have to say under those premises, it’s presumably only because they intend to leave the room the second they have my appraisal and misquote me as approving the same outcome under greatly relaxed premises. I’ve had that hypothesis confirmed in social events and undergraduate recitation debates often enough to believe in its general applicability. Assuming hypothesis about human being’s capability to assess complex interpersonal interactions while under duress is a fool’s game, and I feel that no decent person (such as you or I) really ought to play it. We get burned too often, misquoted out of context by those eager to pursue an immoral agenda. Better to assume hypotheses that better match the reality we inhabit, and are less easy for immoral agents to misquote and exploit — at least in a public forum such as this. We can still do useful work from that starting point.

If I have to argue the point more formally, I’ll put forward the hypothesis that no human being can credibly answer questions which presume one’s complete confidence in the accuracy of one’s assessment, because we’ve all experienced enough times where we’re completely certain of a false thing. We know not to trust in our own sense of certainty; we must presume some room for assessment error.

And whereas society can get by okay without entertaining impossible premises, assuming those premises and failing to acknowledge they don’t apply is a huge and real problem. (Ask Sean Bell. Ask any number of taser victims. Ask basically anyone who faces a police officer high on a power trip and a little out of their head. Happens every day. The list goes for miles.) If you want to teach people to think better, how about we start with that?

We as a general-public audience of learners don’t need stylized trolley problems, at least not most urgently. We need sharper assessments of our own implicit hypotheses, and the limitations they impose. It’s not necessary to contrast that with an idealized scenario. Contrasting that with our naive and ill-considered initial gut judgments will do.

Chris Bertram: I don’t get you at 41. The point is that uncertainty figures into any such consideration and the court decision discusses that at length. The court also makes some principled arguments that would apply even if there was no uncertainty at all. I understand that your criticism mainly addresses those arguments of principle. I would however prefer to take the decision as a whole. At least you should acknowledge the complexity of the decision and not just pick one quote that you disagree with.

37: “Whereas in the torture case the choice is between
1. a world with torture and (maybe) no deaths
2. a world with deaths and no torture”

Now why again is it that we should prefer deaths to torture?

Glen at 42, Chris is right that the Human Dignity is a value central to the German constitution. It is not, as anglo readers might think, an obscure and trivial consideration. Now before you ridicule this, or declare that “the anglos have it right”, you need to understand what Human Dignity actually means in the German constitutional jurisprudence. This requires some more in-depth discussion than we can probably do here. It is a substantively different approach and you need to understand it before judging it.

Colin Reid 38: “What if the plane were an enemy military aircraft which happened to contain civilian hostages (and the intercepting forces knew this)? I don’t see a huge difference ethically. … Are German troops ever permitted to fire their weapons if there is a reasonable risk that civilians will be hit?”

Excellent point. The court follows the conventional, and (I agree) ethically dubious theory that different standards apply to war than to peace. A military attack on Germany would trigger a military response within the laws that apply to warfare. The law at issue here however explicitly applies to a peace time emergency. The court states in its headnotes that the constitution “does not permit the Federation to order missions of the armed forces with specifically military weapons for the control of natural disasters and in the case of especially grave accidents”.

Part of the issue in that court case was precisely the constitutional limits on peace time military deployment. Now a terrorist attack, even one as monstrous as 9/11, is not regarded as an act of war (as it has been in the US) and thus the court had to consider whether a military response to such an emergency was constitutional.

As always in these discussions, no one seems willing to stick to the premises. The premises are that an immense catastrophe is very imminent (within hours), that the suspect definitely has the information needed to prevent it, and that there is definitely no way to obtain that information without resorting to torture.

Actually, you’re the one who’s messing with premises. The premises people are working with assume a fairly short time before the explosion. On those premises, torture is highly likely to be useless as an empirical matter because just about anyone can take some level of torture. And anyone who can do that can lie about the location of the bomb, after taking enough abuse to seem sincere or desperate, sending people on a time-consuming wild goose chase. You’ve smuggled in the additional premise that the torturer’s co-workers can determine the falsity of the information and get the torturers back to work very fast and repeat the process as often as ncessary. To be sure, with that premise, the empirical observation about the uselessness of torture in a ticking bomb scenario no longer holds, but that’s not the scenario everyone else is talking about.

CJ: anyone who can do that can lie about the location of the bomb, after taking enough abuse to seem sincere or desperate

Yes, yes, what this proves is that torture is not guaranteed to work, not that it’s not permissible to try it.

sending people on a time-consuming wild goose chase

Time-consuming? The premise is that we’ve already tried everything else.

You’ve smuggled in the additional premise that the torturer’s co-workers can determine the falsity of the information and get the torturers back to work very fast and repeat the process as often as ncessary.

If there’s no time to determine the falsity of the information, then the torture-fearing terrorist has no incentive to tell the truth, and the catastrophe will take place no matter what. In that case, there’s no reason to use torture, or to do anything else. And in that case, we have absolutely nothing to argue about.

I thank piglet @97 for breaking a lance for German constitutional jurisprudence and the ideas behind the constitution. I see that my post crossed with Chris @103 who still mischaracterizes the “human dignity” idea in the judgement of the German constitutional court.

Again, the point is not that killing a person encompasses an unjustifiable attack on their human dignity. That is not the point at all.

The point is that it is a violation of human dignity to count off lives agains one another, and for the state to judge that it is better that three people live and two die than vice versa. When you do this, you forget that they are persons, and this violates their dignity, to reduce them to mere numbers.

SR: better that three people live and two die than vice versa

You’re stacking the deck. Of course three versus two is, as a practical matter, too close to call. How about 10,000 living versus one dying? Ten million to one? And don’t say: well, we have no such cases. The whole point to the discussion (if there is any) is: what would we do if we did, and what do our answers to that question tell us, reasoning backwards, about the sense of such words as “dignity” and “person” and “sacredness of life”?

I agree that counting lives like apples is wrong. But I think there is another aspect of this: action vs inaction.

Suppose the hijacked airliner is heading for the city, but suppose there is a bomb in it (for some reason), set to blow it up before it reaches the city. The interior minister has a remote control; he can push the button and disarm the bomb, in which case the plane will reach the city and crash into it, killing a whole bunch of people. Should the interior minister push the button?

I have to agree with Glen Tomkins in #25 that “if it should happen, the Air Force general in question would fire away”. The ethical dilemma for him is scarcely alleviated by a prior law or court ruling against it; all that changes is the likelihood of personal retribution. Against the certainty of a life of bad nights and self-reproach whatever he does, a higher risk of getting sacked and press obliquity is small beer. The same officer would readily order a fighter pilot to commit suicide by crashing his plane into the hijacked airliner, and the pilot would obey, if that were the only way to stop it (suppose the only plane on patrol is unarmed and SAMs aren’t available). So the general should, and given military codes of honour, surely would, ignore the lesser costs to himself of telling the GCC where to shove its copy of the Metaphysics of Morals

To add to Raven at 109 and piglet at 113, it is simply an error to think that the primary issue in the scenario of the passengers doomed to die is what occurs in a single case; when fundamental rights or central constitutional concepts are involved, the primary issue is something more like: What is the overall character or status of the government that leaves this option open? Trying to focus only on a given particular case seems to be a clear example of a category mistake. And I have seen no argument whatsoever that the law in question would in actual fact result in a greater overall fulfillment of the state’s obligations to its people, clearly improve or make more consistent its protections of people’s rights in general, or more firmly establish its legitimacy in terms of the basic concepts of legitimacy actually recognized by German society (including the one of human dignity, which, as piglet notes is not just some arbitrary thing thrown in, but is there for very definite historical reasons that affect a German government’s ability to present itself as a legitimate agent of the people’s interests). And there really aren’t that many other grounds on which an overturning of law like this one, where constitutional integrity and the status of the government as a protector of rights is a real issue, can seriously be called ‘crazy’, ‘loopy’, ‘daft’, or ‘absurd’.

geo @110: Yes, of course I am stacking the deck. That was my intention. So 2 against 3 is not clear enough? Fine, where do we draw the line? That is the point: If you start out in this way, you simply have to count lives and draw a line at some point. That is the issue. And the German constitution, according to the constitutional court, says that the state is not allowed to do exactly this, to make this decision.

The state must treat people as persons, not as things, and when you start to count them and make life-and-death decisions by the numbers, you are doing exactly that. You may disagree with this reasoning, but this is what is behind the argument in the decision.

Chris @111: I am not sure if the situation is really comparable to health care policy or transport policy, and I am not quite sure I see the connection for the argument.

I don’t mind (too much) that you disagree with the decision, my main purpose is to get the reasoning across, which I think is different from what you assumed in your argument.

Let me quote the constitutional court at you from some other decision:

All state power must respect and protect a person in their inherent value and in their autonomy. A person may not be treated in an “unpersonal” manner, not as a thing, not even if this is done not out of spite and in order to degrade his personal dignity, but done out of the best intentions.

(My translation, tapeworm grammar in the German original).

This is what all the arguments from the decision quoted above boil down to (that the passengers cannot be “conscripted” or “used as a means”), i.e. the court sees them treated as things, not persons, and therefore the law violated human dignity.

I still don’t expect you to necessarily agree with this, but is the reasoning more clear now? (and I have no idea if this is Kantian or not).

Seems overly restrictive to me. The police can fire if the gun is pointed at them but not if it is pointed at someone else?

The police can fire at the guy with the gun, but not at innocent people, no matter what the circumstances.

Also, this whole argument is about the powers of the state and I simply don’t see, why we should entrust our politicians and civil servants with such god-like powers, especially after the US/UK killed hundreds of thousands based on bold face lies.

My point is that laws which give the police these kinds of powers have an alarming tendency to drift into laws that protect police under any circumstances, no matter how egregious, and this needs to be taken into account under the premises of the thought experiments – I think others have pointed out above. And further, that the presence of these laws corrupts our expectations so that what was once a plain case of murder seems to drift into a grey area, which is what you seemed to be suggesting in 82. You seem to think they thought Menendez was a threat, which means you either weren’t paying attention, or you’ve lowered your expectations of the judgment capacity of the very people you think can be charged with making crucial judgments about who to kill.

I don’t think your NICE example is quite right either. NICE decides whether to pay for a medicine that is better than an existing treatment, and it does so on the basis of quality adjusted life years. That is, it decides whether the state should spend more money than it is already spending in order to extend life a little. It doesn’t decide whether the state should spend money at all in order to save a life at all.

SG: My point is that laws which give the police these kinds of powers have an alarming tendency to drift into laws that protect police under any circumstances, no matter how egregious, and this needs to be taken into account under the premises of the thought experiments – I think others have pointed out above.

Not only have others pointed it out above, but others have pointed it out on previous threads as well. In fact, as far as I can recall, no one has ever made a comment on CT, on this thread or any other, that displayed unawareness of the above point or unwillingness to take it into account. Still, it’s a point that can’t be made too often, so thanks.

geo (126.): that seems a bit economical to with the truth to me. Your ticking time-bombs and whatever other ludicrous thought experiments have been presented become immediately irrelevant when you take sg’s point (repeated ad nauseam by many) into account. If you agree with it, then what are you talking about? Let’s again be clear, we are discussing a real court decision about a real law that has real consequences, not some chapter from the Critique of pure something or other.

christian: then what are you talking about?

Good question; thanks for asking. I tried to explain in #110. There is, I suspect, not a hair’s-breadth of difference among CT commenters policy-wise, at least as as far as I can recall. We all deeply mistrust all existing states, and would most definitely not give them the benefit of the smallest doubt. But there are significant differences about philosophical vocabulary. What, if anything, does the word “absolute” mean? Ditto for “infinitely valuable”? “Sacred”? “Personhood”? “Dignity”? I think that if we consult our intuitions persistently enough, we’ll recognize that these and all other apparently pristine concepts denote differences of degree. This is obviously important in connection with the abortion debate. It is equally important in debates over political economy, with respect to the word “freedom,” which, in the hands of well-meaning libertarians and ill-meaning capitalist lackeys, has rationalized policies that cause incalculable suffering.

The rectification of names is important.

In Bulgaria the area with a radius of 5 km and height of 2450 m from the Nuclear power station Kozloduy is a non-fly zone. All kind of aircrafts, regardless of size and nationality, are forbidden from entering. And while no law specifies (as far as I know) what actions should be taken if the ban is breached, the fact that near the power station there is an anti-aircraft unit hints at something.

I don’t think that it would be any different with nuclear power stations in Germany (as far as I know there are still some of them).

The whole point to the discussion (if there is any) is: what would we do if we did,

You have spoken a falsehood.

The underlying point of the discussion of the ticking-time-bomb scenario — at least for those who usually bring the problem up, i.e. the point outside of your own mind and in the world around you, is to trap people into voicing support for torture under peculiar circumstances, in order to convince them that they ought to support torture under less peculiar circumstances, or at least disillusion them about torture generally so that they are less likely to emote their dissatisfaction with its occurrence or engage in disruptive civil disobedience.

There is always a point to any hypothetical above and beyond “what would we do if we did” and that point is usually “what ought we do or at least tacitly approve of or sympathize with, in the plausible circumstances that most closely align to this hypothetical.”

Most of the people who say “…so would you torture someone if you were 100% sure it would work and you’d get information guaranteed to save ONE BILLION LIVES” are playing a rhetorical trick: they’re aggressively pushing someone to concede that there are [real-life] scenarios where torture is acceptable, and the underlying goal is to undermine protest of [ongoing] torture practices [that are clearly unacceptable].

I frankly find the tack you’re taking on this alarming. You might as well consider whether we ought to torture medical researchers, if we’re completely certain that under torture they’d reveal new medical breakthroughs guaranteed to save a billion lives.

You know, under hypotheses that godawful-rigid and implausible, the question can always be contrived so that the answer must be yes. This does not teach us a damn thing. Not even about vocabulary: when you strain credulity past its breaking point, you strain all language likewise. I am saddened to discover this is news to you.

In war, Salient? Which is why these ticking bomb scenarios are so valuable to the authoritarians – they get us to start thinking of peacetime as being subject to the same constraints as wartime, so that we start instrumentalizing civilian lives even though we’re not under attack.

Sorry, there’s an extra “if” in the third sentence of the first paragraph.

In war, Salient?

From a moral perspective, it would be completely reasonable to subject military action to judicial discretion, and it’s hard to see how it’s morally preferable to not subject military action to judicial discretion — but your point’s a good one.

What do we learn, you rightly ask, from all this logic-chopping and distinction-mongering? Well, I’m not sure

It’s really not fair of me to cut you off right there, granted, but let me cut you off right there — finite time/resources and all that. What you have to do is convince me that this use of conversation-time is plausibly more productive than similar but alternative uses of conversation-time, such as a more direct assessment of what the vague category of ‘freedom’ ought to decompose into, which items in that category ought to be imperative, etc.

Or hey, let’s say: attempt to convince me that this use of our time is better than the alternative I proposed, lightly edited here: “whether we ought to torture medical researchers, if we’re completely certain that under torture they’d reveal astounding new medical breakthroughs guaranteed to save a billion lives, which they otherwise would not have realized.”

Or attempt to convince me that this use of our time is better than a careful assessment of whether it ought to be letter-of-the-law illegal to do certain drastic things that we’d intuitively celebrate someone else doing, like shooting down a plane. (Or spirit-of-the-law, for that matter.)

And I still stand by my statement: you’ve rigged the hypotheses so that we’re no longer talking about human beings. You might as well ask me whether a human being should sacrifice themselves by teleporting up to the plane and redirecting it to a safe landing with their bare hands. Humans simply can’t be credibly certain about these things. They can be “certain” but that doesn’t mean the thing they are “certain” of is true, or even more likely to be true than its opposite, under dispassionate assessment. In high-stress situations the correlation is particularly tenuous.

So I will play the game you have proposed. My answer is: No. I would not torture the terrorist. Even under all the hypotheses you have proposed. If I were certain that torture would yield life-saving information, I would immediately question my own sanity. (This is assuming I’m still sane enough to engage in introspection.) I will entertain the hope that ‘anyone on Crooked Timber’ would feel much the same way, at least later in the day: my God, why did I feel so certain about something so ludicrous? What’s wrong with me?

both utilitarians (in the shape of Peter Singer) and various German Kant-fans came across as slightly unhinged

Maybe, but isn’t that true of all political philosophies when confronted with the right thought experiment? Or at least all those that don’t try and wiggle their way out with messy add-ons like: “I adhere to position X and Y except, cough, when the consequences associated with these positions are particularly heinous.”

Utilitarianism always appealed to me as the least worst political philosophy.

Rich @ 133 wins the tubes.

Chris Betram said:

According to these Kantians, even if the passengers are doomed to die in the next few minutes and shooting-down the plane will save many lives on the ground, to attack the airliner would show a lack of respect for their human diginity,

To paraphrase Flannery O’Connor:

“You can’t get any more undignified than dead.”

Chris @120:

But you have to make such decisions (even in Germany, presumably) and doing so does not amount to a denial of the personhood of the people affected.

I find it somewhat amusing that you “presume” that the judicial system in Germany is somehow able to deal with real life. Let me assure you, it mostly is.

I think the comparison to a denial of medical care (that could conceivably lead to a person’s death) is completely skewed and does not really inform the discussion of the airliner case.

In the case of denial of medical care as a matter of policy, at least in principle the person affected has a legal recourse against the state. If the denial of care does in fact violate his human rights, he can defend them in the courts. (I presume we are not talking about the denial of some immediate live-saving treatments in the case of an acute emergency, I cannot think of a case where physicians would deny treatment because of cost considerations in such cases, and at least in Germany this would be criminally culpable).

If the state curtails somebody’s human rights (say, of freedom, by imprisoning him), the justification for the curtailing must be commensurate to the violation of the right. Obviously, stronger violations require stronger justifications.

The point is that it is never permissible for the state to directly take a human life to save another one (or more than one), since such a decision would indeed deny the basic humanity of one of the people. This reasoning is not permissible as a justification for the violation of the human right (to life) of the person to be killed.

As a matter of law, human life is indeed assigned a value of “infinity” in this reasoning. And there just isn’t any meaningful comparison between 100 times infinity and 1000 times infinity. This does not mean that you cannot make a legal decision in such a case. It just means that you cannot simply base your reasoning on the mere numbers of lives saved vs. people killed.

As a matter of fact for the discussion, in almost all cases where an airplane crashes into a city more people die in the airplane than on the ground, so I think the basic premise of the reasoning is already pretty daft (I think 9/11 was really a singular exception), but that is neither here nor there for the reasoning of the court.

When the Germans started launching ballistic (V-2) missiles at London, the British scientific war establishment devised a scheme whereby, by manipulating reports on where and when the missiles had landed, they convinced the Germans that they were overshooting the target. Thereby making them adjust their aim, so that many of the rockets fell in “relatively” unpopulated areas east of the city—where they undoubtedly killed a certain number of civilians who would otherwise have been spared.

In fact the real situation was slightly different – I’ve just reread RV Jones’ account of it. The V-1s (flying bombs; basically early cruise missiles) were mostly falling short, and the British used German agents (who had been turned under the Double-X scheme) to convince the Germans not to adjust their aim, by feeding them false reports indicating that the bombs were landing on target.
Herbert Morrison was very opposed to this for, IIRC, Kantian reasons: if the Double-X agents hadn’t been used, the Germans would have relied entirely on their radio tracking, which was correctly showing that the missiles were falling short on east London (including Morrison’s own constituency); they would then have adjusted their aim to bring the mean point of impact on to, roughly, Whitehall.

I love the ticking bomb “thought” experiment. You know everything about the situation – the time limit, the existence of the bomb, the fact that it’s going to kill lots of people, and even the identity of the people who planted it, as well as their location (since you caught one) – but you don’t have the foggiest where it is, and you’ve tried everything but you just can’t find it.

Fuck off. What a ridiculous scenario.

Not so, sg, I can name an example of the scenario actually happening. December 3, 1941, Alexandria harbour. The authorities in this case knew everything you suggest.
Whether Bianchi and de la Penne were tortured is a matter of definitions.

I should have said “the Kantian problem” rather than “the problem” up there, to emphasize it’s not a problem that I have personally. I am willing to believe that reasonable and decent people on the plane would want the plane shot down, and so I stand by my earlier remarks, though they state the case a bit too strongly. I think at least they are consistent with what I have been saying since.

So in this case, I don’t think we need consent waivers. Honestly, I think I can support everything Glen Tomkins said above. Under the given hypotheses, we can conclude the agent almost surely would order the plane shot down, whether or not the law granted the right to do so, and I’d want a jury to decide whether the agent ought to face repercussions for that order and its consequences. If the agent based her/his decision on whether s/he would have to face a jury and answer for it, that’s a huge red flag that the plane probably shouldn’t be brought down…

roac, or I may be misremembering; I read the Jones account about a week ago and don’t have it to hand. Fairly sure that was the case though.

the universal assumption is that a group of passengers overpowered the hijackers and deliberately crashed the plane

Really? I thought the assumption was that they tried to overpower the hijackers and the plane crashed during the struggle, either because it was out of control or because the hijackers chose to crash rather than lose control.
I’ve never seen anyone suggest that they succeeded in regaining control and then deliberately crashed. (Seems like an odd thing to do; you’d think they’d have a crack at landing.)

I think knee-jerk anti-Kantians and unapologetically doctrinaire consequentialist should all be shot down, regardless of the circumstances, since they’re already dead inside anyway. (non-knee-jerk anti-Kantians are okay, if there is such a thing, and apologetically doctrinaire consequentialists also get a pass.)

Wait, what was the scenario again?

roac 125: “A real-life historical Trolley Problem has just occurred to me.”

The V2 scenario is similar to the pilot of an out of control plane steering the plane away from the city center before it crashes. Part of what makes the Trolley problem feel so implausible is its strict determinism. The real world is rarely deterministic like that. The pilot steering the crashing plane in a certain direction isn’t choosing this victim over that. He/she is doing his/her best to avoid harm. There is a chance that the plane will crash at a place where no bystanders are harmed. Same with the V2, many if which I believe came down without killing anybody.

Btw has a non-deterministic trolley scenario, allowing for random effects, been proposed before? I can’t believe it hasn’t but can’t find anything in a quick google search.

Can this be right? I know we’re in Obamacare “death panels” territory here, but I presume that doctors in Germany make decisions that it is irrational to spend very large amounts of money prolonging the lives of, say, the terminally ill when that same money could be spend more efficiently on other patients. I guess you aren’t telling me that a person denied a billion-pound cancer cure is guaranteed to win in a German court?

Of course not. But this is again not a decision that directly balances lives against one another. I guess you could construct a case that would be similar to the airliner case, perhaps along the following lines: There is an old, terminally ill patient on the only respirator in the hospital, and a young accident victim is brought in who can only be saved by using that respirator, taking it away from the old man and thereby killing him. That would in my opinion be similar. But I don’t think this is what you have in mind.

And a law mandating that in such cases respirators have to be taken away from people over the age of 75 if persons under the age of 35 need them in order to live, that would clearly be unconstitutional, since it would violate the human dignity of these people.

I am not aware of any such cases having arisen in German hospitals so far, but who knows, they might not have made it into court. Accident victims might just have died in transit to more remote hospitals with open capacity. On the other hand, in most German hospitals there is more than one respirator.

In any other case the denial of medical care – which of course exists – is much more insidious, hospitals might not have the equipment that could conceivably save a person and there are long waiting lists for the few specialized hospitals that have the necessary equipment, so there is some rationing and triage. But this is a far way from actively killing people, in my opinion. And in the immediate treatment decisions of doctors in emergencies, cost is not a consideration. If treatment is denied, it is always on the ground of scarcity, not cost.

I don’t think there are “billion-pound” cancer treatments, are there? This seems to me to be a bit of a red herring, a situation designed so that cost is the only thing preventing the application of a potentially live-saving treatment. Usually this is not where the bottle neck is, the problem is in the availability of the facilities for treatment.

Of course the German legal system does not impose impossible burdens on the state, and of course people die because of lack of money and resources. That is really not the issue. The question is only if the state may intentionally kill somebody to possibly save somebody else’s live and set down into law procedures for initiating this.

As for setting the value of lives at infinity, well I do know that when people who design bridges and roads decide how much to spend on safety features (which grade of armco to use etc) they make calculations to judge whether this amount of expenditure is worth it to save that many lives. I remember being told that a life came in at about £2 million, but that was many years ago, so I guess they use a higher figure now.

Completely apples and oranges here, in my opinion. I was of course not talking about monetary value. It is certainly reasonable to think in terms of utility for safety features. But in this case these measures or their absence do not immediately kill people, so it is a completely different situation. We are not talking about intentionally offing some people because that would save money.

I mean, it is of course permissible to take its actual capability into account when imposing responsibilities on the state. “Setting the value of a life” at a certain amount of money for the purpose of judging the efficacy of safety measures is one thing. Passing a law that allows the state to kill everybody who’s live-earning power falls below his expected costs to the retirement insurance is quite something else. I see the airliner case akin to the second case, not the first.

“Setting the value of live to infinity” was only meant to illustrate that — according to the idea at the heart of the ruling — lives are not “countable” in the usual sense, so that three is always better than two. In a sense, there is a weight factor involved, and if you set it to infinity, these kind of numerical games are right out. I never meant to make a connection to monetary value.

165: ah, OK. That’s very satisfying to know! I haven’t reached the chapter on v-2 yet.

Wikipedia’s “the deception was approved to continue” contradicts the account in R. V. Jones’ Most Secret War, where he suggests that the staff essentially conspired to ignore Morrison’s Cabinet decision:

“Group Captain Earle had been Air Secretary of the War Cabinet, and had been present at the discussion which had resulted in Herbert Morrison’s incredible ruling. Earle had wondered what he could do, and then the bright idea struck him that he should persuade the Cabinet that the matter was so secret that the instruction to give the Germans correct information should not even be put into writing. ‘And,’ he said, ‘I knew that that would be enough for you!'”

This underlines what several commenters have said: when the utilitarian calculation is pressing enough, people don’t wait for the sanction of legal authority to do what they are sure is right.

Another real-life example. Alistair Horne’s history of the Algerian War (A Savage War of Peace) describes a ticking-time-bomb scenario:

“In November 1956 [Paul Teitgen, secretary-general of police in Algiers] was confronted with an appalling moral dilemma. Fernand Yveton, the Communist, had been caught red-handed placing a bomb in the gasworks where he was employed. But a second bomb had not been discovered, and if it exploded and set off the gasometers thousands of lives might be lost…. Teitgen was pressed by his Chief of Police to have Yveton passé à la question [i.e. tortured].

“But I refused to have him tortured. I trembled the whole afternoon. Finally the bomb did not go off. Thank God I was right. Because if you once get into the torture business, you’re lost.”

Teitgen’s reluctance to torture was rare among the French police in Algeria—it may have had something to do with his imprisonment in Dachau in World War II, where he had been tortured by the Gestapo.

Re. PKD: Some of them are about pharmacology and the technology of broadcasting thoughts into people’s brains, though I admit that’s a shallow reading.

Dru, @4
actually I quoted it wrongly – he didn’t want the right to be a woman – he wanted to right to bear children. But yea – he wasn’t a transexual – he just didn’t want his rights limited, even if they were practically irrelevant to him.

P.S. My last suggestion would be a typically German solution. Germans are great at the technical work around for the ridiculous regulation. They have had lots of practice.