Kant and shooting down hijacked airliners

by Chris Bertram on January 25, 2011

In the UK we are being treated to a rich and enjoyable series of programmes on Justice featuring Michael Sandel . No doubt there will be quibblers, but I think he’s done a great job so far. Last night’s episode discussed Bentham, Kant and Aristotle and, for my money, both utilitarians (in the shape of Peter Singer) and various German Kant-fans came across as slightly unhinged. The moment that most summed this up, however, was discussion of the German Constitutional Court’s Kant-inspired dismissal of a law that would allow the federal authorities to shoot down a hijacked airliner destined to crash into a city with catastrophic loss of life. Judgement here . 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, purposiveness, endiness etc. and so is forbidden. For me, that looks like a reductio.

{ 174 comments }

1

reason 01.25.11 at 9:47 am

All absolutist arguments become absurd in some marginal cases. Reminds me somehow of Life of Brian (you know where Eric Idol, despite being a man, wants the right to be a woman).

2

Utisz 01.25.11 at 9:52 am

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

3

moe 01.25.11 at 10:22 am

That doesn’t sound right. There are probably a couple ways around this. (1) The non-ideal universe of Korsgaard where K’s absolutism only applies in a world without substantial evil or (2) You can argue that the passengers on the airliner are not means to an end, but simply collateral damage. They aren’t being used. Kant certainly doesn’t forbid all killing. I think this could pass both a universalization test and not violate the formula of the end in itself.

But I should add that I know very little about Kant and I do think Kantians and utilitarians are sometimes unhinged so far be it from me to dispel that impression.

4

Dru 01.25.11 at 10:54 am

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

5

Harald Korneliussen 01.25.11 at 10:55 am

The only moment you’re possibly allowed to shoot down the plane, is the one where you are convinced the terrorists can’t change course even if they should have a sudden attack of conscience. 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 – if you are furious and genuinely hate the terrorists, that’s a problem. Even then, you’re not obliged to.

Really, Crooked Timber folks. This is basic trolley logic.

6

Matt 01.25.11 at 12:26 pm

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.

7

Chris Bertram 01.25.11 at 12:49 pm

To those, such as Matt, who think that Kant himself wouldn’t be bound to say anything so foolish. … well you may be right. Kant does, of course, say lots of loopy things, but you can always claim that he really oughtn’t to be committed to them given his general views. However, I would note that Arthur Ripstein explicitly discuses German airliner case at 221-2 of _Force and Freedom_ , which I reproduce in extenso:

bq. The German Constitutional Court addressed a related question of whether the constitution could authorize the minister of the interior to order a hijacked airliner to be shot down if it was in danger of being used as a missile against a populated area. The court held that such a law conflicted with the right of the passengers on the plane to human dignity. The passengers cannot be used to save the people in the building. The court explicitly considered the possibility that they would consent to being killed in such circumstances, particularly if, since the plane is being used as a missile, their death is all but certain. They rejected that form of reasoning, even on the assumption that all its premises are true. These premises may or may not be factually satisfied, and the minister of the interior may or may not be in a good position to assure himself that they are. The court’s ground for rejecting the reasoning do not depend on disputing the factual premises, however, but on the claim that the state is not entitled to make such a decision. The court is equally adamant in its rejection of the suggestion that the passengers would have agreed to it if they had been asked: the fact that it would be sensible for them to consent does not mean that they have consented. Their right to human dignity means that they cannot be conscripted into the project of the Ministry of the Interior any more than they can be can be conscripted into the project of the hijacker …..

bq. The [GCC]‘s reasoning reflects the underlying Kantian thought that the state’s obligation to uphold a rightful condition and protect its citizens is unconditional, not simply because of some fondness for rules, but rather because the use of force is merely unilateral unless its authorization could proceed from an omilateral will. People could only give themselves laws consistent with their innate right of humanity. As a result, the numbers cannot matter. If the state cannot order a person to stand in the path of a bullet that endangers and innocent person, it cannot order that person to stand in the path of a bullet that endangers many people. And if the state cannot order a person to do so, then it cannot exempt itself from the such a prohibition in the case of a person who is likely to die anyway. The people give themselves laws not for their advantage, but for their independence, which they cannot trade against anything.

8

Matt 01.25.11 at 1:05 pm

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.

9

Minor nonsense 01.25.11 at 1:21 pm

Short memories. According to what I am reading, then the armadas of bombers of the Allies during World War II should not have been shot down.

I know it is hard to keep absurd arguments going, but this passes stupidity and delves into the realm of religion. Now, I’m no great fan of Kant but I will assure you that this kind of thinking would be total anathema to him.

“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, purposiveness, endiness etc. and so is forbidden. For me, that looks like a reductio.”

It used to be that people this crazy could be confined to an mental home.

10

Ebenezer Scrooge 01.25.11 at 1:23 pm

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.

11

J. Bogart 01.25.11 at 1:33 pm

Try Hume Mr. Scrooge.

12

Shining Raven 01.25.11 at 1:40 pm

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.

13

y81 01.25.11 at 2:15 pm

I don’t understand why the passengers can’t be “conscripted” into whatever the government is doing. All citizens can be conscripted. And conscripts can certainly be ordered to stand in front of bullets, walk through minefields, etc., if the mission requires it.

14

mdc 01.25.11 at 2:43 pm

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

15

john b 01.25.11 at 2:43 pm

Raven – yes, that’s the conventional way of dealing with “nuclear bomb key torture” thought examples. It’s slightly unfair IMO to subject some bloke who’s merely in the Air Force as a ground defence chap to it, in the same way it’d be unfair to try every soldier who ever shot anyone with murder.

I wonder whether being British helps with this one (and whether being German, given the way in which the postwar German constitution was written, hinders)? We have a much more recent history, including times when British law has been subject to the ECHR, of hard cases, because of Northern Ireland’s war zone status. I don’t mean the 1970s cases that were excused and covered up – more the 1990s cases like that of Pte Clegg.

16

mdc 01.25.11 at 2:49 pm

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

17

Alex 01.25.11 at 3:06 pm

All citizens can be conscripted

And in Germany, indeed they are, although probably not for much longer.

15: I remember graffiti in 1990s Bradford that read: HANG LEE CLEGG.

18

aaron_m 01.25.11 at 3:20 pm

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.

19

Straightwood 01.25.11 at 3:26 pm

Ethical systems are no less vulnerable to Godel’s theorem than mathematical systems. Thus there can be no fully consistent set of ethics capable of dealing correctly with every situation. Our energies would be better employed in dealing with egregious abuses of basic ethical principles than in seeking impossible perfection in a theory of ethics.

20

Salient 01.25.11 at 3:52 pm

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.

21

Mike Huben 01.25.11 at 3:56 pm

The real problem is that even if there was some moral calculus that allowed such decisions, real life situations would probably not allow realistic computation to make the choice AND would be susceptible to biased calculation. Nobody could have accurately predicted how many people would die at the World Trade Center or the Pentagon. And good faith efforts to shoot down the planes beforehand could land the remnants on top of a day care center or school.

22

someguy 01.25.11 at 4:20 pm

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?

23

Darin London 01.25.11 at 4:25 pm

24

christian_h 01.25.11 at 4:32 pm

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.

25

Glen Tomkins 01.25.11 at 4:40 pm

Don’t overthink this

Deontological arguments are easy to lampoon if taken out of context. Sure, consider the abstract idea of an airliner headed for a city, terrorists at the helm ready to use it as a missile that will certainly kill more people than the number of passengers on board, and the proceduralist point of view seems deeply misguided, seems to miss the heart of the ethical question in favor of the assertion of awfully weak tea rights.

But that is the way lawyers and judges think, in terms of rights and obligations, procedural safeguards and limitations. No one should be at all surprised that a set of judges would be deeply reluctant to see enshrined in law a novel procedure that lets some executive functionary act as judge, jury and executioner of the airline passengers in question.

The abstract question to consider here, is not whether these arguments by these judges have an entertainingly fruity bouquet of Kant, but whether that legal habit of thought makes sense, is the right way of thinking that should be applied to the Law. Deontological thinking — thinking in terms of rights, obligations and procedure — was a pervasive and predictable a feature of legal thought long before Kant was born. If you can’t avoid language reminiscent of Kant when you make proceduralist arguments since Kant, who strove to systematically describe this way of thinking, that’s not surprising or revealing.

The judges in this case felt that this proposed law created a zone of official lawlessness, a sphere in which some exectuive functionary could, on the basis of completely untested assertions, trample all sorts of rights. They did not find any competing compelling public policy interest in creating any novel such zone of official lawlessness, or, as this law arguably would do, extending the already existing military zone of official lawlessness to civilian aviation.

Whatever the ethics of the situation, however much it might be the right thing to do to shoot such an airliner down, that really isn’t the legal question here. Should such a scenario actually arise, in which some notional executive official somehow knows that some notional terrorists have taken over an airliner, and somehow knows that they have the means and intent to use it as a missile against a city, but somehow only knows this too late to do anything to prevent the plot except shoot the airliner down, and should that hypothetical official also happen to have jet fighters in position to intercept, by all means, fire away. The legal question the German court decided was quite different. Does this scenario represent such a compelling threat to public safety that we should give govt officials blanket legal protection beforehand to shoot down airliners on their own representation that all of those elements of knowledge were in place? Of course not.

The scenario is compelling in the abstract only because it actually happened on 9/11, well, except for the availability of interceptors in position to intercept in time. But that success, by itself, has insured that, practically speaking, the tactic of taking over an airliner to use it as a missile is already impractical, will never happen again. The tactic only worked on 9/11 because of its novelty,because the policy towards airline hijacking at the time was cooperation with the hijackers. In fact, the tactic failed in the case of Flight 93 because the knowledge of the other 3 attacks earlier that day had already changed the policy of cooperation with the hijackers in the minds of the passengers on that flight. By now we have strengthened flight cabin doors and an official policy change in place that provide far better assurances against this tactic working ever again than having given some Air Force general open season on airliners.

Of course, this scenario, however wildly unlikely, can no more be declared to be impossible than that of the ticking time bomb that some advance as a reason that we should allow the govt to use torture. But it is clearly of such extreme unlikelihood, so much not a matter that would routinely come up, that we are quite safe trusting that if it should happen, the Air Force general in question would fire away without the safety of pre-authorization, confident that if he or she actually had the various elements of knowledge in question, if he or she had actually, demonstrably, saved thousands of lives, that no prosecutor would prosecute, and no jury find him or her guilty. Doubt as to the safety of relying on prosecutorial and jury discretion would only arise in cases where we don’t want the general pulling the trigger, where these elements of knowledge are not at all secure.

To achieve this total absence of enhanced public safety, what we sacrifice when we create this zone of official lawlessness, this license to kill airliners, is the clear risk of abuse that is created whenever anyone is freed of accountability. That creation of an accountability free zone is especially dangerous when granted to public officials, both because of the other powers we grant them give them wider scope for abuse, and because they are already subject to the corruption of power form these other powers. Admittedly, this risk is not as pervasive as what would result if we allowed the police to use torture. In that case, in short order we would see only the occasional saint in uniform take any more trouble to actually figure out whodunnit than to torture a confession out of one of the usual suspects in order to have the case wrapped up in time to get home for dinner. With this license to kill airliners law, you have an inherent limitation to just that one situation. Executive officials could only hide behind it to kill airliners, an admittedly limited field of play. But shooting down an airliner was found useful by the folks who started the genocide in Rwanda. Why leave the temptation of a license to kill airliners lying about ready for use in such a scenario? Unlikely as such a scenario might be, it’s still much more likley than the idea that “terrorists” are going to be using airliners as missiles ever again.

And not just less likely, far less dangerous. In the country where this happened two genrations ago, a German court should be foregiven for thinking the public safety to be more at risk from another Hitler than from another Lubbers. Accepting a whole case of Kantian fruitiness seems to me a good bargain compared to accepting even a mild and limited version of another Enabling Act.

26

Glen Tomkins 01.25.11 at 4:58 pm

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.

27

piglet 01.25.11 at 5:00 pm

Part of the rationale for the decision was that in a real life situation, nobody knows whether the hijackers actually plan a 9/11 type attack, and that there is considerable uncertainty whether shooting down the plane would even succeed (123-127 of English version). The pilots association in particular strongly argued that a blanket authorization for shooting down suspicious airliners would sooner or later result in a terrible mistake.

And no, the judges don’t cite Kant.

Here’s a question for those who think the court’s decision absurd: if this law authorizing shooting down an airliner is beyond reproach, why wouldn’t you support a similar law authorizing torture in the event of an extreme emergency? Or would you?

28

piglet 01.25.11 at 5:04 pm

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.

29

x.trapnel 01.25.11 at 5:09 pm

Glen and Raven have this precisely right; everyone who is thinking about it in the abstract, detached from the institutional design question, is missing the point entirely. It’s a mistake to think that this decision would somehow prevent the correct call in a genuine airplane-aimed-at-Hamburg situation. What it does is rather insist that such extraordinary measures be subject to at least ex-post control and justification, which is as it should be.

30

Henri Vieuxtemps 01.25.11 at 5:18 pm

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.

31

Rich Puchalsky 01.25.11 at 5:22 pm

Every now and then I get interested in Crooked Timber again, and then I see something like this, which is classic Crooked Timber thumbsucking.

Here’s a quote from the actual decision:
“The state may not protect a majority of its citizens by intentionally killing a minority – in this case, the crew and the passengers of a plane. A weighing up of lives against lives according to the standard of how many people are possibly affected on the one side and how many on the other side is impermissible. The state may not kill people because they are fewer in number than the ones whom the state hopes to save by their being killed.”

Note *hopes to save* (unless that’s an artifact of translation into English). In the real world, you can never be absolutely sure than action X will lead to result Y. That being the case, of course it’s in people’s interest not to give the military a go-ahead to shoot down civilian planes, for the same reason as police are not allowed to put people in jail indefinitely who they’re really pretty sure committed the crime. But in a proper philosophical problem, all matters of fact are absolutely known, so these people can be berated for their silliness.

32

Chris Bertram 01.25.11 at 5:25 pm

_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.

33

Chris Bertram 01.25.11 at 5:33 pm

Incidentally, I’d note that many of the arguments advanced above about slippery slopes and the like are straightforwardly consequentialist. They may support the same conclusion as the German judges, but not their reasoning in terms of human dignity.

34

Glen Tomkins 01.25.11 at 5:33 pm

“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.

35

geo 01.25.11 at 5:34 pm

Having reviewed Sandel’s Justice, I strongly doubt he has the chops to effectively rebut (much less successfully portray as “unhinged”) Peter Singer or utilitarianism generally.

PS – What’s the putative difference again between utilitarianism and consequentialism?

36

Chris Bertram 01.25.11 at 5:36 pm

geo: that was my word for Singer’s performance.

37

Chris Bertram 01.25.11 at 5:42 pm

_it seems a similar trade-off in both cases._

Well no. Because in the airliner case the choice is between

1. a world with x deaths
and
2. a world with x deaths + y deaths

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

38

Colin Reid 01.25.11 at 5:42 pm

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.

39

Chris Bertram 01.25.11 at 5:44 pm

(Incidentally, I should make clear, to those who don’t know me that I’m not a consequentialist. I think of pure consequentialism and Kantian absolutism as both being mistaken.)

40

piglet 01.25.11 at 5:45 pm

“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?

41

Chris Bertram 01.25.11 at 5:47 pm

_Except we don’t know that_

If I were on trial for murder, I’d love to have someone like you on the jury.

42

Glen Tomkins 01.25.11 at 5:49 pm

“…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.

43

Chris Bertram 01.25.11 at 5:53 pm

But it isn’t a minor consideration Glen, it is Article 1 of the German constitution! All of this balancing and over-riding individuals rights with public policy considerations is very Anglo of you.

44

Chris Bertram 01.25.11 at 5:55 pm

… and I think the Anglos have this right.

45

Rich Puchalsky 01.25.11 at 5:59 pm

“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.”

Oh yes, let’s have courts make public policy decisions based on this reasoning!

Half the people posting here are basically authoritarians, although they don’t know it.

46

geo 01.25.11 at 6:00 pm

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.

47

geo 01.25.11 at 6:04 pm

“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.”

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.

48

bianca steele 01.25.11 at 6:04 pm

@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”).

49

Glen Tomkins 01.25.11 at 6:05 pm

“If I were on trial for murder, I’d love to have someone like you on the jury.”

Well, these days, at least US jails actually are full of innocent people. This is true of ordinary crime because we let one advocate, the prosecutor, practically unsupervised power to compel testimony to his liking by granting or witholding a favorable plea bargain from notional witnesses or the accused.

But the rate of innocence in those imprisoned is quite higher, and admitted to be so on all hands, in the class of “criminal” most closely related to this case, the folks we hold at Guantanamo. Are you really happy with the untested assertion by the govt that these people are dangerous terrorists? Has the US govt not systematically abused the freedom that it has granted itself, and that its courts suffer, from the need to test its assertions before a judge and jury?

Proceduralism cannot save us from all sins, but it’s inexcusable to fail to let it cover the bare basics. We don’t have the luxury, in this discussion, to talk about the desirability or otherwise of unusually skeptical jurors. The problem is the increasingly long shadow of cases where we don’t have any juries that the govt has to establish any level of proof in front of. We don’t need to be increasing that umbra, as this law the German courts threw out would have.

50

Chris Bertram 01.25.11 at 6:07 pm

_Oh yes, let’s have courts make public policy decisions based on this reasoning!_

But that isn’t the issue Rich. The issue is whether legislatures who make public policy decisions based on this reasoning should be overruled by judges _on the grounds that_ doing this would be incompatible with human dignity.

(Other matters, which contributors to this thread seem much keener on discussing are whether it sets a bad precedent, gives to much power to officials, requires knowledge that we can’t have etc etc. But all essentially irrelevant.)

51

Chris Bertram 01.25.11 at 6:12 pm

All very interesting Glen, but not exactly responsive to the issue. I take it that the correct response to widespread injustice in the US judicial system is to fix the injustices. It certainly isn’t to start applying a standard of certainty that would result in no convictions whatsoever.

52

geo 01.25.11 at 6:13 pm

Chris: I’m not a consequentialist

Why not? You seem like a sensible fellow.

53

Glen Tomkins 01.25.11 at 6:21 pm

“I think the Anglos have this right.”

The problem is not that we will ever give too little consideration to the public safety, any more than there is any danger that the rich will have too little say in public affairs. Both will always find their way past any barriers we try to erect against them. We need procedural safeguards that run in the opposite direction, upstream and against the tendency to project some existential threat onto every unlawful act.

I can’t imagine that the Germans have no pop-off valve to let public safety concerns in, even if they are biased against relying on such considerations as a matter of course. Do they not have any “State of Siege” provisions? Wouldn’t these provisions already cover this scenario of the airliners as missiles?

A bias against letting the state of siege become more everyday is a bias I agree with. Our example is not one to imitate. Their own example of 80 years ago, of normalizing the state of siege into an Enabling Act, is even less to be imitated. If that history has led them to put considerations of human dignity first, perhaps it’s because they have a more lively appreciation of the consequences of following the other path, which starts with “mere” assaults on the dignity of the minority singled out as the supposed existential threat.

54

Chris Bertram 01.25.11 at 6:28 pm

I think it is probably a mistake to think that deontological styles of reasoning are in and of themselves a good insurance against doing horrendous things. The laws of war are essentially deontological in style and impose absolute prohibitions against aiming at the deaths of protected persons. But as we all know (and from innumerable discussions on CT) that doesn’t protect those persons from getting fried as side-effects (presumably with their dignity, purposiveness etc intact).

55

CJColucci 01.25.11 at 6:32 pm

Whatever else we do, can we please retire the “ticking bomb” hypothetical? It doesn’t even make instrumental sense. There’s a bomb about to go off somewhere in the general area pretty soon and I know where it is. If I were the terrorist in question, I’d take enough abuse to make things look serious, then lie about the bomb’s location. While the cops are searching the Stock Exchange building, the federal courthouse goes ka-boom.

56

Rich Puchalsky 01.25.11 at 6:38 pm

“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.

57

bianca steele 01.25.11 at 6:45 pm

me @ 48: Putting it another way after rereading some of the comments, I don’t see how Raven’s comment @ 12 is possible, in particular the second paragraph, unless there is no legal mechanism to make the police accountable, well beyond that there would be no way to legislate regarding the rules of engagement of the police or any other government agency.

58

geo 01.25.11 at 6:47 pm

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.

59

geo 01.25.11 at 7:02 pm

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?

60

Tom Hurka 01.25.11 at 7:02 pm

“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.

61

CJColucci 01.25.11 at 7:04 pm

I’m not all that tough, but I think I can hold out long enough to run out the clock with a lie or two, and I suspect that most people who would know where bombs are could.

62

Theophylact 01.25.11 at 7:07 pm

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.

63

roac 01.25.11 at 7:13 pm

If we’re going to debate examples taken from science fiction stories, this one is not only much better known, but simpler.

64

Salient 01.25.11 at 7:14 pm

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.

65

christian_h 01.25.11 at 7:15 pm

Reasonably sure = Jean Charles Menendez. I usually agree with Chris and I am most certainly not a Kantian, neo- or otherwise, but this discussion is bs. The Court did not have a philosophical discussion. It made a decision on a law affecting real lives of real people in real situations, not imaginary lives of figures in some gedanken experiment. To then go ahead and argue that if you actually exclude this reality from consideration it was bad decision strikes me as absurd.

66

Rich Puchalsky 01.25.11 at 7:16 pm

“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.

67

Salient 01.25.11 at 7:16 pm

The chances of one are quite as good as the chances of the other.

I don’t have a cite, but it was my understanding this has been experimentally falsified; individuals subjected to torture often lose their own grasp of the truth and state falsehoods, whether or not they sustain devious intent.

68

geo 01.25.11 at 7:16 pm

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?

69

y81 01.25.11 at 7:19 pm

I think Colin Reid (@38) is the correct analysis: the airplane has become an enemy airplane, and it is certainly permissible to shoot down enemy airplanes engaged in hostile activity even if they carry civilians too. Pure deontological reasoning; no conseqentialism needed.

As I recall–but note that my knowledge of Asian history is derived entirely from Flashman novels–the Manchus sometimes put captured British prisoners in the line of fire. The British admitted that this behavior caused them emotional stress, but not that it created any moral conundrums.

70

Salient 01.25.11 at 7:21 pm

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.

71

Glen Tomkins 01.25.11 at 7:25 pm

“…a standard of certainty that would result in no convictions whatsoever.”

The existing standard is “beyond a reasonable doubt”. I would be ecstatic if we could just get anywhere near actually applying that standard on a regular basis.

Sure, if you can get a jury to be sympathetic to the accused, and if you can marshall as big an investigative force, and as impressive an array of expert witnesses, as the prosecution, then you might actually get the jury to apply the standard. Maybe they might occasionally over apply, as in, say, the OJ case. On the other hand, maybe juries would be less subject to dazzling by the once-in-a-million dream team that comes along, if they were used to defendents actually having anything like resources equal to the prosecution, or if prosecutors did not choose to prosecute only unsympathetic defendents.

Our theoretical system needs to be taken out regularly for practical exercise if it is to function correctly. Only after we do that, and we see juries regularly being too skeptical of the prosecution, will you convince me that we need to loosen the standards. As it is now, grand juries will indict a ham sandwich. Anything thing that keeps petit juries from convicitng a ham sandwich is to be supported.

But if there is any reason to believe that in ordinary criminal practice we have systematically abandoned proper procedural safeguards, and seen systematic false convictions as a result, it seems to me that the case for this is much stronger precisely on the point of this discussion. I’m sorry, but anyone who is not completely skeptical of any govt claim that we have, yet again, killed the AQ #3 man, is simply not being nearly skeptical enough. I can guarantee that if such a law as we are discussing were ever applied, if the govt ever shot down an airliner, any truth that emerged from the govt about the facts of the case would be completely unreliable.

That’s not because our govt in paticular, or any govt in general, is made up of evil people. We would need to be completely skeptical of any details the govt chose to reveal solely because such a law lets it pick and choose what it reveals, and it would never choose to be honest about such a sensitive matter. Of course the govt would claim that the Air Force “knew” all of the things that would have to be known to make such a shoot-down anything but wildly and murderously irresponsible, on the basis of “intelligence” whose sources and methods cannot be revealed lest that harm national security. Any govt would do that. Not that we have to conjecture on this point about the US govt. Our govt does that every time it murders someone with a drone, and then labels him as the AQ #3 man. God knows what fable they would invent in the aftermath of shooting down an airliner loaded with non-brown people.

It hardly requires an unusual, unworkable level of skepticism to doubt govt claims, systematically, in the area of present discussion, ordinary criminal procedure to one side. No one should assume that ordinary felons actually done it just because our highly imperfect system convicted them. But we have to make the stronger, opposite, assumption of govt mendacity in national security cases. When it comes to national security, our system is not just imperfect at achieving sound and honest ends, it is aiming at inherently unsound and dishonest ends because we systematically let it act in secrecy and with impunity from consequences. We don’t need to widen the umbra of such impunity.

72

geo 01.25.11 at 7:25 pm

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.

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Salient 01.25.11 at 7:28 pm

…oh, and personally I probably wouldn’t shoot down the plane, even if I thought it was headed directly for the command center where I was stationed along with whatever-n-you-like many other people, because I probably wouldn’t be sufficiently confident in my assessment of the situation to justify that act, and by the time I was sufficiently confident it’d be too late. Guess that’s why I ought not be in charge of these things.

It’s not like the terrorist hijackers get on the radio and say “we’re headed for the Washington Tower try and stop us ha ha ha” or whatever. One presumes they’re going to act in subterfuge, pretending to be civilians who wrested the plane from the terrorists. I’d probably be too busy giving them directions on how to turn the plane aside, which (being terrorists successfully fooling me) they would ignore and only half-pretend to follow.

74

Salient 01.25.11 at 7:30 pm

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).

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christian_h 01.25.11 at 7:31 pm

Howe about the shooter faction provides some real-life example? I brought up Menendez – a case where the cops were “reasonably sure” he was a suicide bomber. He wasn’t, of course. The main reason they were sure was his skin colour.

76

mpowell 01.25.11 at 7:34 pm

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.

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christian_h 01.25.11 at 7:36 pm

One more point: there is no comparison of having to make decision in a matter of minutes or even seconds as in “should we shoot down this plane” and the decisions made in a trial. For one thing, in the latter case we usually at least are certain a crime was, in fact, committed. We have time to deliberate. The accused is given an opportunity to marshal evidence. It is beyond laughable to believe anything close to a standard of “beyond reasonable doubt” could be attained in the airplane scenario.

78

geo 01.25.11 at 7:41 pm

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.

79

christian_h 01.25.11 at 7:45 pm

But geo, again, the court here made a decision in real life. Not in some philosophical system where we can freely choose which premises to accept.

80

Walt 01.25.11 at 7:45 pm

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

81

christian_h 01.25.11 at 7:47 pm

And your premises are impossible in reality – because we can, in principle, only ever at best know after the fact if they were satisfied.

82

Chris Bertram 01.25.11 at 7:51 pm

Tom Hurka: thanks, I stand corrected. I did have the British, rather than the US, system in mind though.

christian_h: Certainly there’s room for the distinction between what we ought to do and what the law ought to permit, and the latter needs to take account of the fallibility of officials. But the Mendendez case isn’t a clean one, because it wasn’t a case of the police making a decision to kill an innocent threat, but rather one where they decided to kill someone they wrongly judged to be a culpable one. If Menendez had been a suicide bomber, it would have been permissible to kill him. No? The question then is whether they were epistemically reckless.

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geo 01.25.11 at 7:56 pm

Walt: This is not a debating club

Of course it is. What did you think it was: the real world?

84

christian_h 01.25.11 at 7:57 pm

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?

85

Chris Bertram 01.25.11 at 7:59 pm

Well I don’t think that officials should be the authoritative judges of their own reasonable certainty. That would be absurd!

86

christian_h 01.25.11 at 8:03 pm

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.

87

christian_h 01.25.11 at 8:04 pm

Or if you disagree you might offer data on police officers held accountable for shooting and killing unarmed persons.

88

Rich Puchalsky 01.25.11 at 8:06 pm

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.

89

Henri Vieuxtemps 01.25.11 at 8:11 pm

Howe about the shooter faction provides some real-life example? I brought up Menendez – a case where the cops were “reasonably sure” he was a suicide bomber. He wasn’t, of course.

Wouldn’t any case where cops justifiably (in the traditional legal sense) shoot someone, without first obtaining conviction beyond a reasonable doubt, be a real-life example? There must be millions of examples.

90

roac 01.25.11 at 8:12 pm

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.

91

geo 01.25.11 at 8:26 pm

Rich @88: Don’t write off debating clubs — they teach you how to think. One even more valuable thing they teach you is the ethics of discussion. Above all, this: you can make use of epithets (“meaningless,” “authoritarian,” “disgusting”) or arguments, but not both, at least not at the same time.

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Rich Puchalsky 01.25.11 at 8:39 pm

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

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chris 01.25.11 at 8:44 pm

Of course the govt would claim that the Air Force “knew” all of the things that would have to be known to make such a shoot-down anything but wildly and murderously irresponsible, on the basis of “intelligence” whose sources and methods cannot be revealed lest that harm national security. Any govt would do that.

Well, obviously you shouldn’t let the shooter defend on the basis of secret evidence. If the burden of proving necessity is on the defendant (after the act itself has been proved by the prosecution, which would presumably present no difficulty), then… well, probably the organization hangs the trigger-man out to dry and classifies all the facts anyway, so in practice it wouldn’t matter much whether there was a necessity defense on the books or not.

ISTM, though, that this kind of consideration is why we have executive pardons. The person who ordered the shooting-down, and the one who carried it out, may technically be guilty of mass murder and conspiracy to commit same, but if the necessity of their actions was actually accepted by the public, there would be a public outcry if they *weren’t* pardoned. (Some people actually felt that way about the Abu Ghraib torturers, IIRC — but not a majority.)

A troubling wrinkle in this line of thinking — killing one to save hundreds is exactly what people who assassinate abortionists _think_ they are doing. I’m sure they would describe themselves as adequately certain of all the relevant facts. Does this kind of moral reasoning encourage their belief in their own rightness, or would they have believed it anyway (since, in their minds, the person they are killing isn’t an innocent)?

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Theophylact 01.25.11 at 8:47 pm

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.

95

AdamH 01.25.11 at 9:00 pm

There is one thing to be said in favour of the Kantian and Utilitarian views, I think – They both at least give a rationale for deciding how to trade off lives (for instance, the utilitarian rationale is that we simply count the numbers because that will produce the most good and the Kantian rationale is something about dignity or whatever). The alternative, moderate deontology, is (imho) much more plausible in its predictions. But I’ve never seen a moderate deontologist tell a good story about exactly how and why we should trade off lives other than appeal to intuition.

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Salient 01.25.11 at 9:02 pm

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.

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Glen Tomkins 01.25.11 at 9:09 pm

roac,

How do your “terrorists” get control of the plane in the first place? They were able to do this on 9/11 only because the official policy on airliner hijackings was one of cooperation with the hijackers, because such hijackers had never before used an airliner as a missile, they always had used it and its passengers as hostages. That policy does not exist anymore. You’re not going to get cooperation now if you just have box cutters, because everyone will assume you mean to kill all on board by running the plane into the ground, an event they are personally much less likely to survive than any box-cutter-inflicted wound.

If you don’t think that non-cooperation is barrier enough, and you still imagine that airliner as missiles are any sort of threat, then, long before you even begin to think that maybe giving the Air Force a liense to kill airliners is a reasonable way to counter that threat, you would insist that they take the much easier route of just sealing off the cockpit before airliners are allowed to leave the ground. Don’t give the pilots the ability to open the door, period, and you’re done with this “threat”. I haven’t taken any planes lately, but they did strengthen the doors and require that they keep the thing shut as a, very sensible, response to 9/11. If they’ve gotten sloppy about that, that’s your protective measure you should be plumping for, not the license to kill airliners.

That single measure, keeping the cockpit door closed, was all that needed to be done to prevent a repeat of 9/11. All the concern about Shoe Bombers, and Underpants Bombers, since then, as unrealistic as this concern has been, has been directed at protecting the plane itself and its passengers from being blown up, and has had nothing to do with our scenario.

Look, this legal case was about balancing the rights of the passengers with those of the people in the potential target city. The problem with using the decision in favor of the passengers to pillory German courts for being excessively Kantian, excessively respectful of “mere” human dignity, as opposed to human life, is that this case does not involve any risk, whatsoever, to the people of any potential target city from “airliner missiles”. That threat doesn’t exist. Find an example in which German courts actually throw away real protections to human life in order to preserve some idea of human dignity before you criticise them for that. What you have here is a case of German courts throwing out a measure that gave no protection to anything but govt unaccountability, because it threatened the rights of the passengers.

Your point about military exigency is obviously true. No, there is no accountability for making a mistaken call on the battlefield. You can’t sue the govt if some company commander somewhere makes a bad call and gets your son killed.

But, given that grim reality, why on earth would anyone be in favor of having our govt getting the right to declare US airspace a battlefield for purposes of escaping accountability? The Hobbesian state of nature is generally considered a condition from which we are grateful to have escaped, not one that we would run back to without the strongest necessity. Where we can be deliberate, and respect due process, why would we pretend that, no, our very homes are a battlefield in the War on Terror, and we must all submit ourselves to the fortunes of war, including the results of bad calls by ignorant corporals? (and please excuse the borrowing of that last phrase from Chandler’s account of the Battle of Leipzig)

98

piglet 01.25.11 at 9:13 pm

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.

99

Chris Bertram 01.25.11 at 9:19 pm

rich: epithets are fine, but if you don’t want to discuss, please utter them somewhere else.

christian_h:

I’m guessing that you think that the police are sometimes justified in shooting people? (The recent case of the drunken barrister with a gun might be such a case?)

If I’m right about that then I’m also guessing that some of those cases will be where someone poses an immediate threat to someone else. Right?

Presumably you also think that the police must form a judgement about whether that is the case?

Presumably you think that such judgements can be correct or mistaken?

Presumably you think that in some of those cases the police act justifiably? In others, perhaps excusably? In others unreasonably and unjustifiably?

So where do we disagree?

100

piglet 01.25.11 at 9:20 pm

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.

101

roac 01.25.11 at 9:24 pm

Glen T: I fully agree with you about the unlikelihood of a repetition of the 9-11 scenario. The point of my post was to argue against the assumption on all sides that real-world decisions can always be made by applying abstract principles to a certainly-known set of facts. (Or usually, or perhaps ever.) I agree with those who have said upthread, in essence: A person’s gotta do what a person’s gotta do, and then submit to judgment.

102

CJColucci 01.25.11 at 9:27 pm

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.

103

piglet 01.25.11 at 9:35 pm

christian_h: I see your point but the Menezes case isn’t helping this debate. As I recall, the police action was under no theory justified because Menezes had already been constrained by police before he was shot. The police also made numerous clear-cut mistakes for which there was no excuse. Having said that, something similar could – and does – happen in Germany and anywhere else regardless of high profile court decisions. What could make a difference would be to hold officers more strictly responsible for reckless or simply incompetent acts causing innocents to be harmed or even killed.

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Chris Bertram 01.25.11 at 9:41 pm

piglet – happy to have you explain what the meaning of “human dignity” is in German law.

In relation to your other point, I have to worry whether I’ve been entirely consistent above, so let me have another go.

There are two issues here:
1. whether it would violate the human dignity of the passengers to shoot down the plane. I say no, since they are already doomed. And I say that the judgement of the German court to the contrary is absurd.
2. whether bad enough consequences could _ever_ outweigh considerations of human dignity. Here I say that yes they could, but the consequences would have to be very grave indeed.

So one difference between the plane case and the torture case is that human dignity is not in play in the first case, but it is in the second. That’s why I would normally not torture even to save lives and why I think the _law_ should absolutely prohibit the use of torture.

But stack the consequences _enough_ (and I can’t say what enough would be exactly) then I’ll think it right to violate a captive’s human dignity because I think that though the legal prohibition should be absolute, the moral one is not.

105

Shining Raven 01.25.11 at 9:47 pm

Glen Tomkins makes the points I wanted to make much more eloquently. I agree pretty much with all he said.

There is just one point that I would like to re-iterate, regarding the issue of “human dignity” and the relation to the reasoning of the court. This was brought up again by Glen @ 42 and Chris @43. As Glen suspects, this formulation goes indeed back to a lot of established cases in German constitutional law (again disclaimer, I am not actually a scholar of this).

As Chris points out @43, this formulation is actually in Article 1 of the German constitution: “The human dignity is inviolable. To respect and to protect it is the obligation of all power of the state.” And I really take exception that Chris appears to find this somehow a loony idea. The German constitution does not in fact prevent a balancing of public and private interests. This happens all the time. And German law is in fact perfectly capable of dealing with situations where the power of the state is used to kill a person.

Rich Puchalsky @31 cites the relevant reasoning of the decision. The point is that is not allowed for the state to weigh lives against one another. Lives of people are not apples, where it is better to have two instead of one. This, the fact of weighing, is the violation of human dignity which is not permissible.

This idea of human dignity takes every person to be unique and irreplaceable, and considers the hole the loss leaves in the lives of other people. This uniqueness and the uncountable pain and suffering from the death of a unique person make it impermissible to simply count off lives against one another like apples.

This idea of human dignity is simply incompatible with the idea of letting the state look at two innocent people, and have it decide that one live is more valuable than another: “You may live, and you must die!” – and this set out in a law beforehand, with all conditions meticulously specified.

It is not incompatible with the idea of leaving somebody off without punishment after a justifiable homicide, even if he acted as an agent of the state.

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geo 01.25.11 at 9:50 pm

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.

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Chris Bertram 01.25.11 at 9:52 pm

_And I really take exception that Chris appears to find this somehow a loony idea. _

No I don’t find it a loony idea, I find it a loony idea as applied in the airliner case _because_ the passengers’ death is inevitable anyway.

108

Shining Raven 01.25.11 at 9:58 pm

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.

109

Shining Raven 01.25.11 at 10:03 pm

Chris @106: Well, the question whether it is sure that the passengers are surely going to die has been addressed by other people, and I also don’t quite take this as given.

The point still stands that the state is – in this idea of “human dignity” – not allowed to treat their lives as if they were worthless, even in this situation.

Again, how the German courts would in fact rule after an airliner with terrorists have been shot down seems to me to be a different question. This is only about what is permissible to enshrine in a law.

110

geo 01.25.11 at 10:06 pm

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”?

111

Chris Bertram 01.25.11 at 10:13 pm

_The point is that it is a violation of human dignity to count off lives against 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._

Well I’m not sure that this expresses your point well. Lots of decisions by states (transport policy, health care policy) have this character without violating anyone’s dignity. In the case in question the issue isn’t whether 3 people live and 2 die (or vice versa) but whether all 5 die or only 3 of them. Nobody is being sacrificed for anyone else’s benefit and the state is not judging some people more worthy than others.

112

Henri Vieuxtemps 01.25.11 at 10:15 pm

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?

113

piglet 01.25.11 at 10:25 pm

I think Raven’s discussion is spot on. I would perhaps add the following: Human Dignity in the German constitution is an overarching concept. It is not so much a matter of deciding whether in a particular instance, the dignity of person X has been violated. It is rather a universal principle under which the state must bow and all legislation can be scrutinized under the criterion of whether it is consistent with that principle. To put it differently, the German constitution is highly idealistic. It isn’t content with setting up the machinery of the state, as does the US constitution. The consequences of this idealistic conception affect everything from privacy (e. g. the state cannot assign an identifying number to its citizens) to welfare support (how much assistance does a needy person need to maintain his/her dignity?) to shooting down airplanes. Also, the constitutional protection is not just passive (as in the US case), requiring the state to refrain from violating Human Dignity, the state is also required to actively protect it (and other constitutional rights). Recall: “The human dignity is inviolable. To respect and to protect it is the obligation of all power of the state.”

The reason for this idealistic (and to anglo readers utterly alien) conception is obvious: The Weimar constitution was thought to have failed in part precisely because it lacked a strong commitment to protect human rights and human dignity. Of course the above concept is open to numerous criticisms. Writing something idealistic into a constitution doesn’t guarantee an idealistic outcome, and the courts will always have to weigh conflicting rights and conflicting interpretations of Human Dignity etc. On the whole, when I compare German with US or British human rights jurisprudence, usually the German stance is way stronger. And I personally like the approach. It is debatable to what extent Germany lives up to its constitutional ideals but at least when you have a standard, you can debate its failures. By US standards, for example, executing an innocent is not seen as a failure by the Supreme Court as long as the rules have been followed.

114

James Wimberley 01.25.11 at 10:27 pm

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

115

christian_h 01.25.11 at 10:35 pm

CB (99.): There is one and only one case where I could even imagine finding a police shooting justified, and that is in immediate self-defence – returning fire. Also, it is now you dealing in absolutes: just because someone may agree that the police could sometimes legally discharge a firearm does not imply they also have to agree they should be allowed to legally discharge an anti-aircraft missile. Apples and oranges.

CB (107.): But your contention that “the passengers’ death is inevitable anyway” is pure invention. At the point in time when the official has to decide whether to give the order to down the plane, he will not know that the passengers’ death is inevitable. As I pointed out, he will not know this not only in some absolute sense, he will not even be close to being “beyond reasonable doubt” in the sense employed in criminal trials. What he will know is that giving the order, if allowed to do so by law, is the decision more likely to cover his ass.

piglet (103.): So was anyone punished for Menezes’ death? And by punished I mean, criminally convicted of a crime? You seem to be missing the point of my argument: this debate is regarding a real-life issue and thus it should be based on real-life experience, not on invented ones. And real-life experience shows that allowing the cops or military to shoot in even tightly defined circumstances will in practice give them the freedom to shoot in much more expansive circumstances.

116

Brandon 01.25.11 at 10:59 pm

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’.

117

Chris Bertram 01.25.11 at 11:02 pm

_There is one and only one case where I could even imagine finding a police shooting justified, and that is in immediate self-defence – returning fire._

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?

118

Shining Raven 01.25.11 at 11:04 pm

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).

119

piglet 01.25.11 at 11:29 pm

christian_h: “So was anyone punished for Menezes’ death? And by punished I mean, criminally convicted of a crime?”

Nobody was punished but they should have been.

120

Chris Bertram 01.25.11 at 11:34 pm

I most definitely do disagree with the idea that when I make life and death decisions “by the numbers” I am ipso facto failing to treat persons as persons. This strikes me as mere rhetoric. When, in the UK, the National Institute for Clinical Excellence makes a decision not to endorse a drug for use in the NHS because it is not cost effective, that is a decision which will give life to some people (because resources will be better invested) but deny it to others (because they will not get the treatment). 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.

121

sg 01.25.11 at 11:45 pm

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.

How about this scenario: you’re a young man, heavily-armed, in a town under a cloud of fear due to several recent transport-related bombs. You’re told that a suspect has left his house and you follow him into the local underground station. He doesn’t seem aware that you’re following him, he’s not carrying a bag, he isn’t wearing a jacket, behaving unusually, or have any evidence of any form of weapon or bomb. You shoot him several times in the head in front of the other passengers, without giving him any warning, because he has dark skin and, let’s face it, you’re the police and if he wasn’t a terrorist why were you told to follow him?

The moral quandary: as the head of the police force, should you accept that this was a mistake, reject laws that enable the police to shoot strangers except when themselves under fire, and resign. Or should you lie through your teeth about it for years, from the very moment it happened (“he jumped the turnstile,” “he was wearing a bulky jacket”), so effectively that even left-wing bloggers believe the shooting “may have been justified.”

Your call, Chris.

122

novakant 01.25.11 at 11:51 pm

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.

123

Chris Bertram 01.25.11 at 11:52 pm

Well as so often with your comment sg, I’m forced to conclude that you haven’t been paying attention and that you’re sounding off about your own personal hobbyhorses. I thought Ian Blair was a disgraceful liar at the time and should have resigned, and I still think so today. What’s your point?

124

sg 01.25.11 at 11:59 pm

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.

125

roac 01.26.11 at 12:05 am

A real-life historical Trolley Problem has just occurred to me.

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.

126

geo 01.26.11 at 12:05 am

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.

127

christian_h 01.26.11 at 12:06 am

piglet (119.) Nobody was punished but they should have been.

Well I think we all agree with that. The problem is that laws that allow the police to shoot in cases that are not self-defence makes it much easier for them to get away with murders like this. I find it hard to believe the same wouldn’t apply to shooting down airplanes. Talking real life here, not imagined hypotheticals.

I’d still like to hear why CB (and those who agree with him) assert that the situations the law the court ruled would have applied to – in real life – were of the kind where it is known that the death of the passengers is inevitable in any case. This seems to me like a completely unsupported assumption that contradicts all experience. The actual decisions will not be made by CB, they will be made by Ian Blair. That’s why the Menezes case is indeed very relevant to the discussion.

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christian_h 01.26.11 at 12:12 am

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.

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sg 01.26.11 at 12:22 am

geo, as christian_h has pointed out, despite the fact that everyone seems to be aware of the issue, people still seem to raise the same old hypotheticals as if the drift of police powers into the realm of the ungovernable could somehow be waved out of it. Why?

roac, your ww2 case seems a bit different because it wasn’t the British doing the shooting, so all they could do was reduce the damage caused by someone else’s actions. Maybe a better trolley problem from that time would be the one often presented about the atomic bombings?

130

geo 01.26.11 at 12:30 am

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.

131

dsquared 01.26.11 at 12:36 am

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

I think a lot of work is being done by “reasonably certain” there, and that by the time this phrase was unpacked into a set of specific criteria about what standard of evidence might be adequate to the calculation of different levels of tradeoffs, we’d be as close to rule-utilitarianism as makes no odds.

132

Slex 01.26.11 at 12:43 am

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).

133

Rich Puchalsky 01.26.11 at 1:09 am

“then what are you talking about?”

Chris B: “The foolish German court has declared that 0.8 and 0.7 don’t equal two!”

Everyone else: “But they don’t equal two.”

George S.: “But think about it. If you accept that all numbers should be rounded to the nearest integer, they do really equal two.”

Everyone else: “So what? Numbers don’t actually work that way in the real world.”

George S.: “Why does everyone keep saying that whenever I point this out? I wish they’d stop doing that.”

Everyone else: “Because it’s obvious. What’s your point?”

George S.: “My point is that there’s something really deep about the rectification of names that you’d think of if you only stopping telling me that 0.8 and 0.7 do not equal two. “

Everyone else: “Actually we’ve noticed that this whole 0.8 plus 0.7 equals two idea is a recurring bit of propaganda by the makers of official government texts, who don’t want to admit to an error. Why do you keep treating it as if it’s serious?”

George S.: “Because it is! Not because I support that propaganda, since no one here does. But because there’s a deep, ineffable meaning you’d discover if only you stopped rejecting it out of hand. That’s why I need to bring it up over and over, considering it seriously, despite my treatment of it being perfectly the same in all respects to governmental propaganda.”

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Salient 01.26.11 at 1:10 am

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.

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Salient 01.26.11 at 1:22 am

Since that was far far away from the OP, coming back to that:

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, purposiveness, endiness etc. and so is forbidden.

I don’t agree with this interpretation, quite. I’d say “could” instead of “would” and more importantly, replace “is forbidden” with “ought to place the responsible actor at the mercy of a judicial-system jury that is authorized to meticulously and dispassionately assess the context and declare whether the actor should be penalized or pardoned.” Presumably no reasonable jury with appropriate agency would move to convict someone who heroically saved the city from the jacked plane, and if they did, well, anyone who’s willing to cut short the lives of dozens of people to save a populace really ought to be willing to forfeit their own livelihood as well.

Are there really any plausible circumstances where
[me not having to face a jury] > [saving the populace] > [cutting short the lives of other people]
holds or ought to hold?

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sg 01.26.11 at 1:39 am

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.

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geo 01.26.11 at 1:43 am

Salient: I meant the point of the discussion here on Crooked Timber. If I were speaking with people whom I thought needed to be reminded that, under any remotely likely circumstances, governments cannot be trusted to torture, then I would remind them of that most emphatically. Please notice that if someone is saying that if governments can only be trusted to torture under the most “godawful-rigid and implausible” conditions, then he is, in effect, saying that governments cannot be trusted to torture.

What do we learn, you rightly ask, from all this logic-chopping and distinction-mongering? Well, I’m not sure, but I’m hoping we might find — what I, for one, desire desperately to find — a way of countering arguments that employ the word “freedom” in just the same careless and misleading way that some people employ words like “life,” “dignity,” or “infinite value,” and thereby have managed to convince a majority of my fellow citizens that rich people have a right to use their money “freely” and therefore cannot be legally obliged to help relieve the suffering of others.

Patterns of bad reasoning run very deep. It’s important to chip away at them wherever possible.

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geo 01.26.11 at 1:47 am

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

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bxg 01.26.11 at 1:59 am

Salient@135:

I really, really liked that reasoning and as I read 90% of this thread f0und it convincing enough to think the torture/ticking-bomb and shoot-aircraft/terrorists cases morally easy. If I think “my” (the actor’s) eventual fate – and/or society’s judgment of my decision – is at all relevant to my decision, then it’s 99.9% safe to say that the proper decision is not to act.

And yet it was you (I think) who introduced medical research into the thread. I
suspect that people running controlled studies of promising new treatments _do_ have this dilemma. I.e., at the point where the incomplete evidence gives a belief in my head – not even statistically significant, but just the slight balance of the evidence as I see it – am I obliged that this very earliest point to terminate further study? Because if I continue to prove the benefit of the new treatment (if my guess is right) to the FDA and etc, I may be sacrificing a few (statistically, I cannot name them individually) for the longer term good. And should my life or career be forfeit if I find myself in this spot?

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Salient 01.26.11 at 2:15 am

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?

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Salient 01.26.11 at 2:23 am

…and yes I know that subjecting every soldier to the judicial process is wildly implausible. I don’t really mean to open that up for analysis.

I suspect that people running controlled studies of promising new treatments do have this dilemma.

The dilemma is resolved by careful disclosures to the potential treatment recipients regarding the possibility of their demise at the hands of the treatment. So long as every recipient is well-informed that death from the treatment is a plausible outcome and no recipient is subjected to duress, it’s a different ballgame, and I think the research should be on ok moral ground, at least with respect to the specific topic at hand.

Your point is probably more applicable if we’re trying to treat, say, comatose patients with a treatment that might plausibly kill or further injure them. Or patients whose ability to communicate, or to analyze information and risk, is plausibly impaired. That’s a complicated and nuanced and interesting topic to analyze, and (crossing the threads a little) I defer to books like Kieran Healy’s Best Ask First as possible references or launching-off points for that thinking.

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terence 01.26.11 at 2:26 am

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.

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geo 01.26.11 at 2:50 am

Fair enough, Salient. Making rarified points about philosophical and rhetorical usage probably isn’t the most fruitful way to contribute to this thread.

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Treilhard 01.26.11 at 3:13 am

Rich @ 133 wins the tubes.

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y81 01.26.11 at 3:48 am

“So long as every recipient is well-informed that death from the treatment is a plausible outcome and no recipient is subjected to duress, it’s a different ballgame, and I think the research should be on ok moral ground, at least with respect to the specific topic at hand.”

Whoa, does this mean that if every passenger on the original plane signed a release saying that they consented to the plane’s being shot down in the posited circumstances, the Kantian problem goes away? What if they simply got on the plane knowing what the law was (or having had a fair opportunity to learn what the law was)?

In fact, aren’t double blind medical experiments problematic ab initio from a human dignity, ends-not-means perspective? (Even before we suspect that a treatment works or doesn’t.) We know from the beginning that we aren’t going to be helping the sick people in the placebo group: they’re just there to serve as a control. And it’s true that they volunteered for the experiment, but only because they were sick, after all. I am guessing that most of them would rather receive the experimental medicine than the placebo, but their wishes in that regard aren’t respected, being sacrificed to the greater good of medical knowledge.

I confess, I don’t think about these issues very often, so I may be missing something.

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jack strocchi 01.26.11 at 7:00 am

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.”

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Chris Bertram 01.26.11 at 7:50 am

_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.”_

I think I will only have time for one comment today, so this will be it. Both Kantianism and utilitarianism capture some important truths about morality. There’s also a powerful psychological attraction to theories that explain everything (or purport to) and offer a neat and consistent picture of a domain. So no surprise that there are Kantians and utilitarians who shake their heads at the absurdities of the other side whilst seeking to persuade themselves that their own bugs are features etc. But the right response to moral complexity might not be to swallow those theories whole but to accept the plurality of values and the inevitability of compromises amongst those values. Hence that justice can be tempered with mercy or sometimes overridden by efficiency or welfare, and so on. Also, that there is no unifying master-principle telling you how and when to make those compromises: judgement is inevitable. So: pluralistic intuitionism people.

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Shining Raven 01.26.11 at 8:16 am

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.

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novakant 01.26.11 at 9:06 am

So: pluralistic intuitionism people.

That’s a nice sentiment, the pluralism part that would be more convincing if you refrained from calling ideas opposed to your moral intuitions “loony”, dismissing them out of hand.

Another thing to think about is that even if one was totally convinced that one was to make the right decision in an ideal scenario, it’s a big leap to assume that representatives of the state would make the right decision in real-life cases and to grant them the a priori power to make them.

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ajay 01.26.11 at 9:53 am

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.

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ajay 01.26.11 at 9:56 am

It is an interesting moral question whether it’s equivalent to take action to persuade your enemy to keep carrying out an action which kills x East Londoners, or toact to persuade him to switch from an action that kills x+y West Londoners to one that kills x East Londoners.

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ajay 01.26.11 at 10:06 am

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.

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Salient 01.26.11 at 12:33 pm

Whoa, does this mean that if every passenger on the original plane signed a release saying that they consented to the plane’s being shot down in the posited circumstances, the Kantian problem goes away?

Somewhat yes. The problem there is, you must give them the right to not refuse to consent, and allow them to board the plane regardless; then, you can only shoot down the plane if everyone freely consented.

In fact, aren’t double blind medical experiments problematic ab initio from a human dignity, ends-not-means perspective? (Even before we suspect that a treatment works or doesn’t.) We know from the beginning that we aren’t going to be helping the sick people in the placebo group: they’re just there to serve as a control. And it’s true that they volunteered for the experiment, but only because they were sick, after all. I am guessing that most of them would rather receive the experimental medicine than the placebo, but their wishes in that regard aren’t respected, being sacrificed to the greater good of medical knowledge.

I think the role of consent here is absolutely crucial. It is morally important to tell prospective volunteers something somewhat like, “if you participate in this study you have a significant chance of receiving no treatment. Some volunteers will receive a placebo, and you might be one of them.” It is my understanding that this kind of disclosure is standard. I think it might be okay to suppress the x% chance, so long as the volunteers all recognize there is a plausible chance they are not going to receive treatment in the study.

Frankly, if someone volunteers for a medical experiment, they should be told not to expect to get better. Their progress is going to be studied. They’re not there for treatment. They’re essentially sacrificing their right to treatment for the greater good, so that better treatments can be developed and worse ones abandoned. It’s a noble thing to do, but they should [a] be well-informed of the plausible consequences and [b] be very clear in their own minds that they are not participating in the study in order to receive treatment.

Anyone who signs up for experimental treatment because they are sick and they hope to get better from the experiment should be turned away, or at least, carefully informed in advance of what the study is actually doing and that it’s not trying to do what they hope it will do. People who are sick and are freely willing to sacrifice maximizing their wellness, for the benefit of the greater good are good experiment candidates.

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Salient 01.26.11 at 12:42 pm

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…

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roac 01.26.11 at 2:43 pm

ajay — If you read it in Jones it must be so, but I’m wondering if there were two different deception programs. I will have to try and track down my sources.

Here’s a question about flight 83. I don’t think anyone really knows for sure what happened (the cockpit tapes have never been made public, right?), but the universal assumption is that a group of passengers overpowered the hijackers and deliberately crashed the plane. It seems unlikely that everyone of the passengers was consulted and consented. If there was even one objector, are the “crashers” to be faulted for failing to respect his/her human diginity?

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ajay 01.26.11 at 2:51 pm

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.)

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chris 01.26.11 at 3:16 pm

As a factual matter, locking the cabin doesn’t prevent an airliner from being taken over; it just makes it more difficult, because instead of terrorist passengers, you need terrorist crew. On the other hand, since there are only two crew in the sealed cockpit, having one of them be a terrorist agent is sufficient; he can attack the other by surprise and murder or incapacitate him, and is then alone in the sealed cockpit, in full control of the airplane.

So 9/11 couldn’t be repeated *precisely*, but taking over airliners in flight is still quite possible, it just requires a different kind of preparation — thus the dilemma about what to do when an airliner is taken over and weaponized is still significant. And in that plan, the inability of anyone else to get into the secure cockpit actually *helps* the copilot-hijacker.

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Chris Bertram 01.26.11 at 3:39 pm

_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)._

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?

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.

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a.y. mous 01.26.11 at 3:43 pm

After much thinking over the varied aspects of the moral dilemma that has been so eloquently made and deeply involving ourselves with full vigour and an open mind into the overly long justifications made by all parties involved and further deeper insights that were brought forward by the honest and sincere commentaries submitted by many an accredited academic, it is the opinion of this court that Sex. Sex. Sex. Sex. Sex. Whoopie do! Everything is pornographic! We’ll know it when we see it.

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Platonist 01.26.11 at 4:11 pm

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?

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piglet 01.26.11 at 4:13 pm

“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.”

To my knowledge, doctors are not allowed to make that sort of decision based on cost. An argument that I have frequently heard (mostly from Singerians) is that cost-based life and death decisions are nevertheless made, just not openly. It would be interesting to pursue this question but preferably based on knowledge rather than speculation and I am not well enough informed of the details.

In fact, aren’t double blind medical experiments problematic ab initio from a human dignity, ends-not-means perspective? (Even before we suspect that a treatment works or doesn’t.) We know from the beginning that we aren’t going to be helping the sick people in the placebo group: they’re just there to serve as a control.

Well, we don’t know whether or not we are helping, or harming, the treatment group. In fact, placebos are known to sometimes help but never harm. So I don’t see the dilemma, provided informed consent etc.

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piglet 01.26.11 at 4:34 pm

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.

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piglet 01.26.11 at 4:36 pm

There is a chance that the plane will crash at a place where no bystanders are harmed. [I meant to add:] It is difficult to see a genuine moral dilemma in pursuing that course of action.

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Shining Raven 01.26.11 at 5:08 pm

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.

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roac 01.26.11 at 5:24 pm

Yes, ajay and I were both right about V-weapons deception. Wiki dixit:

The British noticed that, during the V-1 flying bomb attacks of 1944, the weapons were falling 2–3 miles short of Trafalgar Square (the actual Luftwaffe aiming points such as Tower Bridge were unknown to the British). Duncan Sandys was told to get MI5-controlled German agents such as Zig Zag to report the V-1 impacts back to Germany. In order to make the Germans aim short, the British used the double agents to exaggerate the number of V-1s falling in the north and west of London and not to report, when possible, those in the south and east.[1] For example, circa June 22, 1944, only one of seven impacts was reported as being south of the Thames when ¾ of the impacts had been there. Although Germany was able to plot a sample of V-1s which had radio transmitters, which confirmed that they had fallen short, the telemetry was disregarded in favour of the human intelligence.

When the German 65th Army Corps received a false Double Cross V-1 report that there was considerable damage in Southampton —which had not been a V-1 target—the V-1s were temporarily aimed at the South Coast Ports. V1s were extremely powerful. As a result, the Double Cross deception also caused retargetting from London, not just inaccurate aiming. However, when V-1s launched from Heinkel He 111s at Southampton on July 7 were inaccurate, Frederick Lindemann, 1st Viscount Cherwell, recommended the agents report that the attack caused “heavy losses” in order to save hundreds of Londoners each week at the expense of only a few lives in the ports. When the Cabinet learned on August 15 of the deception, Herbert Morrison said that they had no right to decide that one man should die while another should survive, but the deception was approved to continue.

Moreover, when the subsequent V-2 rocket blitz began with only a few minutes from launch to impact, the deception was enhanced by providing actual locations (genuinely damaged by bombing) for impacts in central London, but each time-tagged with the time of an impact that had fallen 5–8 miles short of central London. From mid-January to mid-February 1945, the mean point of V-2 impacts edged eastward at the rate of a couple miles a week, with more and more V-2s falling short of central London.

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ajay 01.26.11 at 6:14 pm

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

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roac 01.26.11 at 6:27 pm

According to a different Wiki entry, on “Operation Crossbow” (the name for V-weapons countermeasures generally), the War Cabinet refused to authorize the V-1 deception, presumably because of Morrison’s objections, in Churchill’s absence. A senior bureaucrat said to go ahead regardless, having no doubt what Churchill would say when he got back. He was right.

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Gareth Rees 01.26.11 at 6:30 pm

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.

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Oliver 01.26.11 at 9:14 pm

Germany joined NATO at a time when NATO’s official doctrine included using many nukes on German soil. Nobody objected to that on constitutional grounds. This makes me ask whether measurements are done with different yardsticks.

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bianca steele 01.26.11 at 9:31 pm

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.

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roac 01.27.11 at 1:55 am

I am not puzzled because I already saw that this is a wrong-thread post. Nevertheless it can be said that broadcasting thoughts into people’s brains is probably illegal in Germany.

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reason 01.28.11 at 3:29 pm

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.

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reason 01.28.11 at 3:35 pm

Maybe,
this decision will do some good. Maybe as a consequence a system will be designed to stop the plane, without killing all on board (say a huge paraschute that can capture the plane, triggered by missiles that take out the engines).

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reason 01.28.11 at 3:40 pm

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.

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