Politics and Morality

Politics and Morality

Edited by

Igor Primoratz

Politics and Morality

Also by Igor Primoratz ETHICS AND SEX HUMAN SEXUALITY (editor) IDENTITY, SELF-DETERMINATION AND SECESSION (co-editor, with Aleksandar Pavkovi´c) JUSTIFYING LEGAL PUNISHMENT PATRIOTISM (editor) TERRORISM: THE PHILOSOPHICAL ISSUES (editor)

Politics and Morality Edited by

Igor Primoratz Centre for Applied Philosophy and Public Ethics The University of Melbourne

Editorial matter, selection and introduction © Igor Primoratz 2007; all remaining material © the respective authors 2007. All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2007 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N. Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-10 0-230-01965-X ISBN-13 978-0-230-01965-2 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Politics and morality/edited by Igor Primoratz. p. cm. Includes bibliographical references and index. ISBN 0-230–01965–X 1. Political ethics. I. Primoratz, Igor. BJ55.P65 2007 172–dc22 10 16

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Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

Contents Acknowledgements

vii

Notes on the Contributors

viii

Introduction

xi

Part I 1

Dirty Hands: Doing Wrong to do Right Stephen de Wijze

3

2

There is No Dilemma of Dirty Hands Kai Nielsen

20

3

Punishing the Dirty Neil Levy

38

4

The Moral, the Personal and the Political Garrett Cullity

54

5

Professional Ethics for Politicians? Andrew Alexandra

76

6

Noble Cause Corruption in Politics Seumas Miller

92

7

The Moral Reality in Realism C. A. J. (Tony) Coady

113

Part II 8

Patriotism: Its Moral Credentials James Gaffney

135

9

Political Complicity: Democracy and Shared Responsibility Janna Thompson

153

‘Barbarians at the Gates’: The Moral Costs of Political Community Rob Sparrow

170

10

v

vi Contents

11

Lying and Politics David W. Lovell

189

12

Torture and Political Morality John Kleinig

209

13

Military Obedience: Rhetoric and Reality Jessica Wolfendale

228

Index

247

Acknowledgements Some of the essays included in this book were first presented at the workshop ‘Politics and Morality’ held at the Centre for Applied Philosophy and Public Ethics (CAPPE), University of Melbourne, on 24 and 25 August 2004, as part of the work on the research project ‘Morality of “Dirty Hands” as an Issue in Political Leadership’. Those essays were subsequently revised for publication in the light of the detailed critical discussion each received at the workshop. I would like to thank Ms Irena Blonder, Manager of the Melbourne division of CAPPE, for invaluable help with organizing the workshop. Igor Primoratz Melbourne

vii

Notes on the Contributors Andrew Alexandra is Senior Lecturer in the Philosophy Department and Senior Research Fellow in the Centre for Applied Philosophy and Public Ethics, University of Melbourne. He has published in History of Philosophy Quarterly, Social Theory and Practice, Professional Ethics, The Southern Journal of Philosophy, Business and Professional Ethics Journal, Ethics and Information Technology and Agriculture and Human Values. He is the co-author (with John Blackler and Seumas Miller) of Police Ethics (2nd edition, 2006) and (with Steve Matthews and Seumas Miller) of Reasons, Values and Institutions (2002). He is editor of the Australian Journal of Professional and Applied Ethics. C. A. J. (Tony) Coady is Professorial Fellow at the University of Melbourne division of the Centre for Applied Philosophy and Public Ethics. He was Boyce Gibson Professor of Philosophy at the University of Melbourne from 1990 to 1998. His publications include Testimony: A Philosophical Inquiry (1992), Terrorism and Justice: Moral Argument in a Threatened World, (co-edited with Michael O’Keefe) (2002) and Righteous Violence: The Ethics and Politics of Military Intervention (coedited with Michael O’Keefe) (2005). His most recent publication is What’s Wrong with Moralism? (2006). Garrett Cullity is Associate Professor of Philosophy and Head of the Philosophy Discipline at the University of Adelaide. His publications include The Moral Demands of Affluence (2004), Ethics and Practical Reason (co-edited with Berys Gaut) (1997) and articles in Ethics, Philosophy and Public Affairs, Philosophy and Phenomenological Research and Proceedings of the Aristotelian Society. James Gaffney is Professor Emeritus of Ethics in the Department of Religious Studies at Loyola University, New Orleans. Author of eight books, editor of one and a contributor of scores of articles to books and journals, he has a special interest in the interactions of religion and morality in both historical and contemporary settings. His most recent published writing (in Food for Thought, ed. Steve F. Sapontzis, 2004) was on the complex and changing motivation of vegetarian practices in

viii

Notes on the Contributors ix

major religious traditions. His current research emphasis is on legal and ethical controversy provoked by Spanish colonial policies regarding native peoples in Latin America. John Kleinig is Director of the Institute for Criminal Justice Ethics and Professor of Philosophy in the Department of Law and Police Science, John Jay College of Criminal Justice and in the PhD Programs in Philosophy and Criminal Justice, Graduate School and University Center, City University of New York. He also holds the Charles Sturt University Chair of Policing Ethics in the Centre for Applied Philosophy and Public Ethics (Canberra, Australia). He is the author or editor of fifteen books, including Punishment and Responsibility (1973), Paternalism (1984), Valuing Life (1991) and The Ethics of Policing (1996). Neil Levy is Senior Research Fellow in the Centre for Applied Philosophy and Public Ethics, University of Melbourne and in the Programme on the Ethics of the New Biosciences, Oxford University. His books include Sartre (2002), Moral Relativism (2002) and What Makes Us Moral? (2004). He has published more than fifty book chapters and articles in journals including The Monist, Philosophical Quarterly, Bioethics, Biology and Philosophy and Philosophical Studies. David W. Lovell is Professor of Politics and Head of the School of Humanities and Social Sciences, University of New South Wales at the Australian Defence Forces Academy in Canberra. He has been Head of the School of Politics as well as Acting Rector of the University of New South Wales at the Australian Defence Forces Academy. His books include Asia-Pacific Security (2003), The Transition (2002), Marxism and Australian Socialism (1997), The Sausage Makers? Parliamentarians as Legislators (1994) and (with Chandran Kukathas and William Maley) The Theory of Politics (1991). Seumas Miller is Professor of Philosophy at Charles Sturt University and the Australian National University (joint position) and Director of the Centre for Applied Philosophy and Public Ethics (an Australian Research Council funded Special Research Centre). He is the author of Social Action: A Teleological Account (2001), Corruption and AntiCorruption (with Peter Roberts and Edward Spence) (2004), Ethical Issues in Policing (with John Blackler) (2005) and Police Ethics (with John Blackler and Andrew Alexandra) (2nd edition, 2006).

x Notes on the Contributors

Kai Nielsen is Professor Emeritus of Philosophy, University of Calgary, and Adjunct Professor of Philosophy, Concordia University. He is the author of twenty-two books, including Ethics without God (1973), Marxism and the Moral Point of View (1988), Why Be Moral? (1989) and Globalization and Justice (2003). Igor Primoratz is Professor Emeritus of Philosophy, The Hebrew University of Jerusalem, and Principal Research Fellow, Centre for Applied Philosophy and Public Ethics, University of Melbourne. He is the author of Justifying Legal Punishment (2nd edition, 1997) and Ethics and Sex (1999), and editor of Human Sexuality (1997), Patriotism (2002), Terrorism: The Philosophical Issues (2004) and Identity, Self-Determination and Secession (with Aleksandar Pavkovi´c) (2006). Rob Sparrow is Lecturer at the Centre for Human Bioethics at Monash University and Honorary Research Fellow at the Centre for Applied Philosophy and Public Ethics, University of Melbourne. He has published papers in the Australasian Journal of Philosophy, The Journal of Political Philosophy, Ethics and Information Technology and Environmental Ethics. Janna Thompson is Associate Professor of Philosophy at La Trobe University, Melbourne, and an Honorary Fellow in the Centre for Applied Philosophy and Public Ethics. She is the author of Justice and World Order (1992), Discourse and Knowledge (1997) and Taking Responsibility for the Past: Reparation and Historical Justice (2002). Stephen de Wijze teaches political theory at the University of Manchester. His publications on the topic of dirty hands include ‘Tragic Remorse: The Anguish of Dirty Hands’, Ethical Theory and Moral Practice (2005) and ‘Defining Evil: Insights from the Problem of “Dirty Hands”’, The Monist (2002). He is presently completing a book on the problem of ‘dirty hands’. Jessica Wolfendale is Research Fellow at the Melbourne University division of the Centre for Applied Philosophy and Public Ethics. She completed a PhD in philosophy at Monash University in 2005, in which she analysed the moral psychology of military obedience. She has published papers in Social Theory and Practice, The Journal of Social Philosophy and Ethics and Information Technology.

Introduction I The morality – or immorality – of politics is an inescapable issue for philosophers, politicians and common citizens. It is particularly topical in times of dramatic political developments that put under severe strain moral constraints on individual and collective choice and action. Today, we are facing an array of pressing issues in both national and international politics, which raise difficult moral questions. At the same time, our trust in political leaders who are entrusted with devising and implementing solutions to these issues is sorely tried by their words and actions. Under these circumstances, the problem of the relation between politics and morality takes on special urgency. This book is a contribution made by philosophers working in theoretical and applied ethics to the public debate about politics and morality. They discuss both the fundamental problem of the relation of politics to morality and a number of more specific questions arising in this connection. Do moral considerations that normally apply in nonpolitical contexts also apply to politics? Or does politics require a different morality, one more permissive with regard to such things as deception, manipulation and violence? How should we judge politicians who have morally compromised themselves on our behalf? Is moral corruption in politics distinctive in some important respects? What are the rights and wrongs of lying and deception in politics? Is patriotism a virtue, a morally indifferent preference or a vice? What are the moral costs of policies that exclude most of those seeking immigration or asylum? May we resort to torture in extreme circumstances, in particular in the course of the ‘war on terror’? What are the moral hazards of military obedience? There are two basic positions on the central question: Do rules of ordinary morality apply in political life, just as they apply in all other areas? Is it just as wrong to lie, cheat or resort to violence in politics as it is, say, in private life? On one view, it is. This view has a long history, starting with the ethical conception of the state that prevailed in ancient and medieval thought. Its most prominent advocate in modern philosophy was Kant, who argued that moral considerations trump all others. As he explains in his tract on eternal peace (1795), xi

xii Introduction

conflict between morality and politics exists only subjectively, as a result of ‘the self-seeking propensity of human beings’, but not objectively: Pure principles of right have objective reality … and people within a state as well as states in their relations with one another must act in accordance with those principles, regardless of what objections empirical politics may bring against them. True politics can therefore not take a step without having already paid homage to morals … as soon as the two conflict with each other, morals cuts the knot that politics cannot untie.1 Indeed, on a sterner version of an already stern view, political leaders must adhere to moral rules more strictly than common citizens. For, given their high office, they decide and act on behalf of those they govern. Moreover, by and large, their choices and actions affect more people, often in more serious ways, than the choices and actions of common citizens, not least as an example to others, whether good or bad. Thus Erasmus of Rotterdam wrote in The Education of a Christian Prince (1516) that ‘the good faith of princes in fulfilling their agreements must be such that a simple promise from them will be more sacred than any oath sworn by other men’.2 On the other main view, moral rules and other considerations do not apply to politics. Some find the first philosophical statement of this view as early as in Plato’s Republic. The guardians of Plato’s ideal state are exempted from one of the basic moral prohibitions, that of lying, when the good of the polity requires deceiving its enemies, and even its own citizens.3 Yet in Plato’s political philosophy, this provision is an exception rather than the rule; other precepts of morality are to be upheld by all. Like other major moral and political philosophers of antiquity and the Middle Ages, Plato believed in the unity of ethics and politics. It is thus more accurate to trace the origins of this view to Machiavelli, whose entire political theory was motivated by the need to liberate politics from ethics. Machiavelli’s best-known work, The Prince (1513), aims to instruct princes about the ways of doing their job and doing it well, indeed excelling in it. The prize for excelling is power and glory. Machiavelli is writing against the background of a tradition, exemplified by Erasmus among others, of composing tracts that encourage princes to be paragons of virtue. That is the way of gaining the love and loyalty of their subjects, maintaining their rule and ensuring a favourable mention in history books. Machiavelli

Introduction xiii

rejects this tradition; in his judgement, that is moralism with no purchase on reality, worse than useless, a recipe for failure. For humans in general do not abide by moral precepts or practise virtue; on the contrary, they are self-interested, greedy, cowardly, fickle, ungrateful and deceitful. This is true of all with whom a prince will have to deal: other princes and his own subjects alike. In short, there is such a gap between how one lives and how one ought to live that anyone who abandons what is done for what ought to be done learns his ruin rather than his preservation: for a man who wishes to profess goodness at all times will come to ruin among so many who are not good. Hence it is necessary for a prince who wishes to maintain his position to learn how not to be good, and to use this knowledge or not to use it according to necessity.4 This means that a prince needs to learn how to break his promises, to dissemble and deceive, and to use force, sometimes in a cruel way and on a large scale, whenever that is required in order to maintain, strengthen and extend his power. Nor should he worry too much about others’ response to his conduct. People are gullible, have short memories and judge human acts in general, and the deeds of rulers in particular, by their results, rather than by their intrinsic moral character. ‘Let a prince therefore act to conquer and to maintain the state; his methods will always be judged honourable and will be praised by all; for ordinary people are always deceived by appearances and by the outcome of a thing; and in the world there is nothing but ordinary people …’5 Moreover, this is good counsel for political leaders and citizens alike. In discussing the choices facing the latter, Machiavelli says: ‘When the safety of one’s country wholly depends on the decision to be taken, no attention should be paid either to justice or injustice, to kindness or cruelty, or to its being praiseworthy or ignominious.’6 Whatever the paramount political concern is – whether it is the power and glory of the prince or the safety of the republic – if it requires setting aside moral considerations, including even the weightiest, that is what a true prince, and a true citizen, should do.7 Both these views of the relation of morality and politics – that moral concern always overrides political interest, and that a sufficiently important political interest trumps morality – are so extreme that this suggests that we look for a middle-of-the-road position. Perhaps politics cannot be constrained by the same moral rules that govern our private lives; but that does not mean that it need not be constrained by

xiv Introduction

any moral considerations, that to be a politician is to be on a permanent moral vacation. We should be able to develop a political morality: a morality that takes into account the distinctive nature, challenges and hazards of politics, and makes it possible to engage in it in a morally defensible way. Max Weber’s lecture ‘Politics as a Vocation’ (1919) presents what is still the best-known statement of this approach. Weber distinguishes two types of ethics: ethics of conviction (Gesinnungsethik) and ethics of responsibility (Verantwortungsethik). The former focuses on the intrinsic nature of actions and the purity of intentions, while disregarding the consequences. The latter emphasizes our responsibility for a wide range of consequences of our actions. The ethics of conviction is appropriate in private life, but cannot serve as a guide in politics, where the vital interests of large numbers of people are at stake. For this type of ethics is incapable of accommodating the exigencies of politics, and enjoins unflinching adherence to moral prescriptions and proscriptions, come what may. As a result, when applied in the public sphere it leads to inactivity, and eventually compromises the very values it professes to serve. Its adherent is at pains to stay on the straight and narrow path of morality and keep her hands clean; if her good intentions are frustrated by bad luck, or by the stupidity or ill-will of others, that is not her fault. An adherent of the ethics of responsibility, on the other hand, takes into account such things as chance or flaws in others, and accepts responsibility for a wide range of consequences of his actions, intended and unintended (but foreseen or foreseeable), direct and indirect, including those mediated by the actions of others. The ethics of conviction assumes that only good can come from good, and only bad from bad. The ethics of responsibility is alive to the irrationality of the world, and in particular the irrationality of politics. Politics is about power, and its essential means is violence. But power and violence are ‘satanic powers’: it is extremely difficult to control them once they are unleashed, and even to predict where recourse to them will take us. A person who decides to enter politics – that is, to make sustained use of power and violence in the public arena – makes ‘a pact with satanic powers’ and must know that, as far as his actions are concerned, ‘it is not true that nothing but good comes from good and nothing but evil from evil, but rather quite frequently the opposite is the case. Anyone who does not realize this is in fact a mere child in political matters’.8 Those who propose to enter the political realm must be prepared to use bad means that ordinary morality proscribes in order to attain a good political end, to take responsibility for what they help bring about,

Introduction xv

whether with or without intent to do so, and to live with the full knowledge of what they have done and the sense of guilt this knowledge must engender. Yet the opposition between the two types of morality is not absolute. There is a limit to what a decent human being can bring himself to do in pursuit of a political end, however important the end may be. Weber apparently holds that there is no way of drawing the line that must not be crossed for all and sundry, and that each individual involved in politics is to find out for himself just where the line lies. But the fact that there is such a line for every decent person shows that the ethics of conviction and of responsibility are not utterly incompatible but rather complementary; ‘only when taken together do they constitute the authentic human being who is capable of having a “vocation for politics”’.9 A different position, seeking the middle ground between insisting, with Erasmus and Kant, that politicians must obey the same moral rules that apply to everyone else, and giving them, with Machiavelli, an exemption from these rules whenever a paramount political aim can be pursued only by breaking them, is presented in Michael Walzer’s seminal paper ‘Political Action: The Problem of Dirty Hands’ (1973). While Weber seeks to overcome the tension between politics and morality by arguing for a distinctively political morality, Walzer proposes to do so within a single moral outlook, by displaying its complex structure and highlighting a quandary that characteristically arises in political action. He sets out by reminding us of moral conflict: a situation where different moral considerations pull us in opposite directions, so that we can act in accordance with one only at the cost of not acting in accordance with the other. Some conflicts are not too difficult to resolve, as one moral consideration has more weight than the other, whether in general or at least in the particular case. When resolved accordingly, such a conflict does not leave us with a sense of unease, or even guilt. But sometimes the conflict is deeper and more troublesome: it is a moral dilemma, defined by Walzer as ‘a situation where [one] must choose between two courses of action both of which it would be wrong for him to undertake’.10 We face such a dilemma whenever we can prevent something extremely bad from happening only by breaching an important moral rule. Persons in all walks of life may have to cope with such a predicament, but those active in politics are particularly likely to have to do so. This is a recurring topic in fiction dealing with political subjects; indeed, it is to Sartre’s play Dirty Hands that we owe the term

xvi Introduction

commonly used in contemporary philosophical discussions to refer to such a conundrum. In the play, an experienced politician responds with exasperation to the qualms a novice has about lying for the sake of the cause: ‘How you cling to your purity, young man! How afraid you are to soil your hands! All right, stay pure! What good will it do? … Well, I have dirty hands. Right up to the elbows. I’ve plunged them in filth and blood. But what do you hope? Do you think you can govern innocently?’11 Walzer agrees with Sartre’s politician (and with Machiavelli and Weber) that one cannot govern innocently, at least not successfully and for long. He adds that we would not want to be governed by those whose primary concern was to keep their hands clean by adhering to moral absolutes, rather than to safeguard and promote the common good. On the other hand, Walzer sees the ‘dirty hands’ predicament as a genuine dilemma and the troublesome feelings it generates as appropriate and important; he criticizes consequentialism for denying the reality of the dilemma and for portraying those feelings as irrational. Conventional wisdom has it that no one succeeds in politics without getting their hands dirty, and that politicians are morally worse than the rest of us. But this is as it should be. For ‘sometimes it is right to try to succeed, and then it must also be right to get one’s hands dirty. But one’s hands get dirty from doing what it is wrong to do. And how can it be wrong to do what is right? Or, how can we get our hands dirty by doing what we ought to do?’12 This looks paradoxical. Yet, think of a national leader in whose capital a series of bombs will go off in the next 24 hours if they are not discovered and defused, and whose security service have captured a rebel leader who (probably) knows where they are, but refuses to tell. The only way to obtain the information and so prevent the disaster is by torturing him. The leader authorizes torture, although he believes, with the rest of us, that torture is always wrong. How should we judge the leader’s decision, and how should the leader feel about it afterwards? When he ordered the prisoner tortured, he committed a moral crime and he accepted a moral burden. Now he is a guilty man. His willingness to acknowledge and bear (and perhaps to repent and do penance for) his guilt is evidence, and it is the only evidence he can offer us, both that he is not too good for politics and that he is good enough. Here is the moral politician: it is by his dirty hands that we know him. If he were a moral man and nothing else, his hands

Introduction xvii

would not be dirty; if he were a politician and nothing else, he would pretend that they were clean.13

II Walzer’s analysis of the ‘dirty hands’ predicament has provided the stimulus and set the stage for contemporary discussions by philosophers and others, which show no signs of abating. The first three contributions to this book are devoted to it. Stephen de Wijze and Kai Nielsen argue the two sides of the issue. De Wijze (chapter 1) rejects the criticism that the very notion of ‘dirty hands’ is incoherent or that whoever seriously entertains it shows a corrupt mind. ‘Dirty hands’ are a real and highly significant part of our moral experience, and any ethical theory that leaves no room for it is flawed. Yet it is not obvious just how this phenomenon is to be analysed, just what is the locus of the ‘dirt’. According to Walzer, ‘dirty hands’ cases involve a conflict between deontological considerations that guide us in our private lives and weighty consequentialist considerations likely to come up in public, political life. De Wijze begs to differ: one may be obliged to dirty one’s hands when facing a conflict between two cherished moral principles, as Sophocles’ Antigone did when she decided to fulfil her family obligations at the price of betraying her city. De Wijze undertakes to spell out the necessary and sufficient conditions for a ‘dirty hands’ predicament, and to identify the source of the ‘dirt’ involved. Such a predicament is one of moral dilemma, or moral conflict simpliciter, generated by circumstances deliberately created by other human beings, where one is moved by moral considerations to betray a person, a group or a moral value or principle, and collaborate in others’ immoral project. Such collaboration with evil is justified, as the alternative is an even greater evil. Afterwards, the agent feels remorse, or what Bernard Williams has termed ‘agent-regret’. A paradigmatic example of the particularly troublesome type of ‘dirty hands’ scenario, that involving a moral dilemma, is the choice forced on the hero of William Styron’s novel Sophie’s Choice. Sophie, a Nazi concentration camp inmate, is invited by a camp guard to choose which of her two children will live. If she refuses, both will die. Sophie’s is a private, not a public, political choice. Neither de Wijze nor Walzer wants to restrict the phenomenon of ‘dirty hands’ to the political arena. But both point out that it is most at home there, because, as Walzer puts it, in politics ‘we claim to act for others but also serve ourselves, rule over others, and use violence against them’.14

xviii Introduction

Whether political or not, ‘dirty hands’ show that the world is a complex, uncertain, indeed tragic place, in which – contrary to what adherents of Weber’s ‘ethics of conviction’ believe – our moral record does not reflect only our own, deliberate choice and action, but also depends, sometimes critically, on the choices and actions of others, which can force us to betray things we hold dear and commit shameful, gravely immoral acts. In the view of Kai Nielsen (chapter 2), all talk about having to do wrong in order to do right, and about feeling guilty for having done so, is ‘paradox-mongering’. It is true that a political leader sometimes has to do things that normally would be moral crimes. However, Nielsen complains, Walzer and others argue that these actions are not only normally moral crimes, but are moral crimes sans phrase. They grant that the conscientious politician must sometimes dirty her hands in this way, but maintain that in doing so she becomes guilty of committing a morally criminal act. According to Walzer and other proponents of the ‘dirty hands’ view, such individuals are caught in the dilemma that to do right they must do wrong. Nielsen rejects this. There is no dilemma; rather, such individuals are caught in the horrible situation of having to choose between grave evils. The right thing for them to do is to choose the lesser one. Philosophers subscribing to the ‘dirty hands’ view tend to assume that those who reject this view must be in the grip of utilitarianism – a monistic conception of morality that interprets all moral considerations in terms of the good and bad consequences of our actions. But this assumption is mistaken. Nielsen adopts a position that can be termed ‘weak consequentialism’. This position is compatible with utilitarianism, but does not require it. It is also compatible with (and perhaps more congenial to) pluralistic non-consequentialism. Its central claim is that there is no class of cases that can be defined in advance such that the consequences of performing or failing to perform them are never relevant to the question of what is the right thing to do. Weak consequentialism boils down to rejection of absolutism: there are no actions that are either obligatory or prohibited absolutely, whatever the circumstances and whatever the consequences of performing or failing to perform them, respectively. Deploying this theory of morality, Nielsen scrutinizes the problem of ‘dirty hands’ as illustrated by Walzer’s example of authorizing the use of torture in order to prevent the killing of many innocent people. The conclusions he reaches are, first, that a ‘dirty hands’ case presents no moral dilemma. On the contrary, we often can discover what we ought

Introduction xix

to do in such a case. Second, when we do, and then act accordingly, we have no reason to feel guilty. Evil, such as killing, destruction, oppression or suffering, is inescapable in the world we live in. Sometimes we must choose between alternatives that are both evil. Under such circumstances, we sometimes have good reasons for believing that resort to what are normally morally impermissible means will make for less evil in the world, and that our not resorting to those means will most likely immediately lead to greater evil. It is often not easy to establish whether these conditions obtain. But when we have established that they do, we ought to use otherwise morally impermissible means. Morality itself demands that we seize the day and take measures it prohibits in more ordinary circumstances; to deny this is moral evasion. There are no categorical prescriptions and proscriptions built into nature, including human nature, or into our choosing selves. ‘In morality, it all depends’ (p. 35).15 Walzer’s classic version of the ‘dirty hands’ view is developed against the background of a critique of several earlier analyses of this phenomenon. His objection to Machiavelli is that the prince who has ‘learned how not to be good’ and is now practising this skill ‘has no inwardness’. Machiavelli says nothing about the mental state appropriate to his prince, nor about the penalties for not being good. ‘What he thinks of himself we don’t know. … Yet we do want to know; above all, we want a record of his anguish.’16 Weber goes some way towards remedying this, but his account is unsatisfactory, since the matter is resolved entirely within the confines of individual conscience. A politician who has dirtied his hands for the sake of the community certainly ought to have appropriate thoughts and feelings. But this is not enough. The feelings of guilt and the suffering they engender ought to have public expression in order to reassert publicly and reinforce the moral principle that has been violated, and also to limit that suffering. After all, the politician has committed a determinate crime, and must pay a determinate penalty, rather than come to be considered by others, and by himself, a lost soul. As Walzer rightly says, ‘we don’t want to be ruled by men who have lost their souls’.17 Yet it is not clear just how Walzer proposes to deal with this. He speaks of a determinate penalty that needs to be exacted, and of penance one needs to undergo, for an action that leaves one’s hands ‘dirty’. He also suggests that the agent should be honoured for acting, all things considered, as she should have acted, and dishonoured for the wrong she did when so acting. Neil Levy (chapter 3) examines this issue, arguing that both requirements are misguided. Punishment can

xx Introduction

be justified either in consequentialist or in retributive terms, but neither justification is available to those who propose to punish politicians with ‘dirty hands’. Punishment based on a consequentialist rationale is meant to discourage the person punished, and others, from repeating the wrongdoing; but in a ‘dirty hands’ case, what was done was right, all things considered, and therefore ought to be done again should the same circumstances obtain. Punishment based on a retributive rationale is justified because it is deserved, but the politician with ‘dirty hands’ did what she should have done, all things considered, and so does not deserve to be punished. By the same token, it will not do to dishonour the politician in some public way, instead of punishing her, for doing what she did; for what she did was, after all, what she should have done. Nor is it clear how we can both honour and dishonour someone for one and the same action. Levy turns next to the question of the responsibility of the public. A politician claims not to be acting as a private person, but rather on behalf of the public. While this claim may or may not be true in a nondemocratic polity, it is true in a democracy. Accordingly, the responsibility for ‘dirty-handed’ actions in a democratic polity is widely shared. So long as such actions are a predictable feature of political life, when we elect officials, we entrust them with the burden of performing such justified, but nevertheless wrong, actions on our behalf. It might be argued that asking others to bear this burden is itself a ‘dirty’ act. Be that as it may, when politicians commit ‘dirty’ actions in circumstances that imply consent of their constituency, responsibility for those actions becomes widely shared. When our politicians perform morally wrong yet justified actions, all of us end up with ‘dirty hands’. The ‘dirty hands’ quandary is only one facet of the general problem of the relation of morality and politics. In the next four essays this relation is explored from other points of view. Garrett Cullity approaches it by looking into another type of consideration that may be thought to restrict the reach of morality or to trump its mandates: considerations of personal well-being (chapter 4). What is the relation between moral judgements and judgements about what is personally most fulfilling? They can be thought to present 1) two different sets of reasons for action which, when in conflict, allow for finding out what should be done all things considered, or 2) two incommensurable sets of such reasons which, when in conflict, at least in some cases leave no possibility of establishing what should be done all things considered. Position 1) includes two views: on one, the conflict is always to be resolved in favour of morality, while on the other such conflict may in

Introduction xxi

some cases be resolved in favour of what is personally fulfilling. Only the latter view is to the point. On this view, a moral rule that does not allow for exceptions can pull us in one direction, while a consideration of personal well-being pulls us in another, and such conflict can sometimes be decided in favour of breaking the rule for the sake of personal well-being. In such a case, breaking the moral rule is what, all things considered, one should do. Yet breaking it is not thereby rendered morally acceptable; it remains morally wrong. The problem with this account is that ‘if, given the actions that are recommended by moral reasons, we are sometimes justified by personal reasons in not performing them and sometimes not, then we will always have the distinction between “morality” and “morality-when-it’s-justified”; and the latter, not the former, is what [is] important’ (p. 62). Morality as such no longer seems to count for very much. Position 2), on the other hand, sees moral and personal reasons as incommensurable and refuses, at least in some cases of conflict, to tell us what it is that we ought to do, all things considered. If we do what morality demands, we will sustain a personal loss; if we do what is personally fulfilling, we will pay a moral price; and neither of these losses is justified by the reasons enjoining the choice that brings it about. There is, then, no action that is justified, all things considered, but only an action that is morally justified and another that is justified from the personal point of view. The problem with this is that a ‘personal justification’, however satisfactory to the person offering it, is quite unlikely to impress those adversely affected by the action at issue. In truth, it is no justification at all. The idea of a ‘political justification’ as 1) one that is different from moral justification and sometimes can override it, or as 2) one that is incommensurable with moral justification, is vulnerable to criticism along the same lines. The former strips morality of its importance (thereby also making the claim that politics can override it uninteresting). The latter, while likely to be appreciated by the agent and the beneficiaries of the action at issue, is bound to be rejected by those adversely affected by it, and is actually no justification at all. However, the notion of an action that is justified all things considered, and still morally wrong, still something that makes remorse intelligible and indeed appropriate, may yet have some purchase. I may be facing a situation where what I ought to do, all things considered, is to go against a moral rule, through no fault of mine; or I may be responsible for having ended up in such a situation. In the first case, I can justify my action to those adversely affected by it, and the appropriate

xxii Introduction

attitude on my part is regret, but not remorse. I have not wronged them. In the second case, I can justify my action to them in the limited sense of showing how, given the predicament I was in, I did what, all things considered, I should have done. But since my predicament was my own fault, this is not the end of the story. I cannot justify to them my actions that led to the predicament in which I had to act as I did; when that is taken into account, it is clear that I have wronged them, and I should feel not only regret, but remorse as well. What I did was, after all, both something I should have done, all things considered, and also morally wrong. This is a general point about morality, but it may have special application in politics, if we accept the claim that a politician characteristically has to represent different group interests liable to come into conflict. If so, that explains why moral wrongdoing that ought to be committed, all things considered, is endemic to political life. Can we hope for a professional ethics for politicians that would help reduce the moral hazards of their profession? Are they a profession? These questions are addressed by Andrew Alexandra (chapter 5). He points out that there are important differences between various kinds of political actors and the moral rules that apply to them, and focuses on those who hold political office in modern states. They are called ‘professional politicians’, and there are indeed sufficient similarities between them and members of recognized professions such as lawyers or doctors to justify the usage. Now a professional is not simply a person performing a certain social role; such a person also holds an office that regulates the performance of the role. There is an array of reasons why roles should become offices, and these reasons apply to politics as well. Politicians, too, could and indeed should have their own professional ethics. Its rules should regulate the activities of politicians: not merely their performing of the role that defines their profession, but doing so in ways prescribed by their office, which is part and parcel of the institutional structure of the modern state. Thus their activities must be in line with, rather than subversive of, this structure. That means there will be circumstances where a professional politician ought not to act in a way likely to directly advance the goal she is committed to as a politician, namely the good of her constituency, but rather stick to the rules defining her office. Alexandra cites an example of a ‘dirty hands’ scenario from Walzer’s discussion: a person runs for office in order to implement some admirable goals, which include ‘clean politics’, but in order to be elected must strike a ‘dirty’ deal with a corrupt ward boss. According to Walzer, the candidate ought to make

Introduction xxiii

the deal, since when she decided to run, she committed herself to doing whatever it takes to win ‘within rational limits’. Alexandra wonders about these limits: ‘Since willingness to make such a deal must be contrary to any sane system of role morality for professional politicians (it clearly could not be universalized, for example, or publicly professed), the deal cannot be justified by appeal to the demands of that morality’ (p. 89). The deal would be an immoral act and an instance of ‘dirty hands’; it would also be a case of political corruption, at least on a broad understanding of such corruption. Political corruption is sometimes understood as the abuse of political office for private gain. On another conception, political corruption need not be motivated by private gain, but must be the abuse of political office. Seumas Miller (chapter 6) rejects both views. The former is probably accurate as far as most corruption going on in politics is concerned, but nevertheless too narrow; there are cases we would want to portray as corruption where the motive is not private gain, but what the agent holds to be the common good. The latter view is overly narrow too, as it rules out common citizens as agents of political corruption. Miller first offers a general account of corruption as a moral and causal concept. Corruption is always prima facie immoral. It takes place against the background of some uncorrupted state, which may be defined either by an ideal or by a (minimum) moral standard. It is always corruption of someone or something: it causes a change for the worse in someone’s moral character or in an institutional process, role or purpose. Unlike corrosion, it is an act done intentionally, or at least knowingly or out of culpable ignorance. Moreover, persons who get corrupted have, to some degree, allowed themselves to be corrupted; they are participants in their own corruption. Miller next turns to ‘noble cause corruption’. We usually think of corruption as driven by some base motive, but Miller’s analysis allows for corruption in a good cause. Even so, it is still corruption, and therefore normally immoral. But there may be instances of ‘noble cause corruption’ that are morally justified, all things considered. Faced with such a case, we might say that it is not one of corruption after all, or that it is one of those rare cases of corruption that are morally justified, all things considered. This analysis is then applied to politics. Miller rejects the tradition represented by thinkers such as Machiavelli, Weber and Walzer, and in this volume by de Wijze (chapter 1), according to which dirty hands are an inescapable, almost defining, feature of politics. But he advances a weaker claim that in politics (and elsewhere)

xxiv Introduction

‘dirty’ methods in general, and ‘noble cause corruption’ as a particular type of such methods, may sometimes be morally justified. He recounts the pursuit and assassination of Pablo Escobar, the notorious Colombian ‘drugs baron’, which involved an array of undoubtedly corrupting actions, as a case in point. When Machiavelli’s views about politics and morality, discussed earlier, are projected onto international relations, we get the position known as ‘realism’ as it is commonly understood. Tony Coady challenges this understanding of realism (chapter 7). Both proponents and opponents tend to take realism to be opposed to any role for morality in international affairs, and fail to distinguish between morality and moralism. Realism need not be taken as calling for banishing all morality from international relations; it is better viewed as calling for international politics to be rid of moralism. Now ‘moralism’ is obviously a distortion of genuine morality; but beyond that, it is a wide and elusive notion. Coady seeks to clarify its meaning and scope by means of a typology. He looks into moralism of scope, which makes a moral issue of matters that have no moral significance; moralism of imposition, which insists that others defer to our moral judgement rather than being guided by their own; moralism of abstraction, which pronounces moral judgement at a level much too abstract and far removed from the contingencies of interest and power; absolutist moralism, which claims that some moral rules bind absolutely, whatever the circumstances and whatever the price for abiding by them; and finally, moralism of deluded power, which has an exaggerated trust in the power of moral criticism and moral stand. All these are misguided and indeed dangerous if allowed to inform international politics; accordingly, Coady shows considerable sympathy for the negative part of the realist case. Yet realism remains flawed in two important respects. Having conflated moralism with morality, its adherents tend to reject some policies that are not moralistic at all. Moreover, the positive prong of realism proposes to substitute the pursuit of national interest for moral concerns. The mistake here is similar to that committed by proponents of ethical egoism, who advocate single-minded pursuit of individual self-interest in the belief that, if practised by all, it will lead to best results all round. But universal selfishness is not likely to have any such consequences unless it is complemented by wider moral concerns. The same is true with regard to the pursuit of national interest. Appeals to national interest are best seen as calling for prudence; but prudence, in Coady’s view, is itself a moral virtue that makes little sense in isolation

Introduction xxv

from other such virtues. In the final analysis, ‘the right replacement for moralism is not national self-interest, but a suitably nuanced and attentive international morality’ (p. 129).

III While the essays comprising Part I discuss the relation of morality and politics at a fairly general level, those in Part II address it by looking at a number of specific moral issues contemporary national and international politics give rise to. One is patriotism. It is invariably conceived as morally significant and, more often than not, as morally valuable or even mandatory. But there is a minority view that rejects it, and does so for expressly moral reasons. James Gaffney (chapter 8) examines the moral standing of patriotism. The meaning of ‘patriotism’ has changed considerably over time, so there can be no single, sweeping judgement of its morality or immorality. Initially, it meant simply love of one’s country and polity, a special concern for its well-being and a readiness to work and make sacrifices for it. In the eighteenth century, patriotism came to be understood as love of, and loyalty to, one’s country and its people as distinguished from, and often opposed to, loyalty to its ruler. In the nineteenth century, with the rise of nation-states, patriotism got submerged in nationalism. The rhetoric of patriotism no longer assumed a contrast between two political camps within one’s country, but rather between the interests of one’s country and those of other countries. As critics such as Leo Tolstoy have pointed out, this type of patriotism readily evolves into collective egoism and a negative, even hostile attitude to countries and peoples not ‘one’s own’, leading to international tension and conflict. It is with this type of patriotism, which has been with us for more than a century, that Gaffney is primarily concerned. He takes a critical look at Alasdair MacIntyre’s lecture ‘Is Patriotism a Virtue?’ (1984), a philosophical statement of a robust version of patriotism, and Stephen Nathanson’s subsequent defence of ‘moderate patriotism’, and finds both unacceptable. The former is too uncritical and bellicose; the latter is ultimately no better than ‘moderate racism’. The revival of patriotism in the United States and elsewhere in the wake of the terrorist attacks of 11 September 2001 must also be viewed with suspicion. More often than not, Gaffney writes, it involves ‘attitudes of international distrust and undertakings of international violence sanctimoniously encouraged by government. They are taken up by many with a kind of blind faith, and by many more from a fear of the conse-

xxvi Introduction

quences of affronting such blind faith. Most often they are, as Tolstoy said, “stupid and immoral”’ (p. 150). In a polity whose citizens are patriots in the original sense, that is, public-spirited, the problem of political participation would not arise. In many contemporary polities, however, public spirit is lacking, and political participation tends to be intermittent, superficial and generally poor, even at election time. This raises a serious moral issue when a democratic government introduces immoral policies. Aren’t citizens, too, responsible for them? Don’t they have a duty to do something about that: to protest, vote against and oust the government that implements those immoral policies on their behalf? On the other hand, each citizen can say that the outcome will be decided by what others do, that her single protest or vote will make no difference, and that therefore she need not bother to do anything. Janna Thompson takes on this problem – one of collective action, sometimes termed ‘the problem of many hands’ (chapter 9). The view that it is neither rational nor morally required to act since what one does will not make a difference, she argues, rests on a mistaken understanding of collective responsibility according to which one is responsible for an outcome only when what one does could make a difference to that outcome. She first discusses, and rejects, two attempts at solving the ‘many hands’ problem: the view that the responsibility of individuals for collective action is not determined by the contribution they make to its outcome, but rather by their intention, which overlaps with the like intention of others, to participate in a group action, and the view that responsibility arises from making a commitment to a joint action. The former line of argument cannot explain how those who fail to protest or vote have an intention to participate in a group action; the latter does not provide a convincing account of just how citizens become committed to the activities of their state, or why such a commitment requires voting in elections. Thompson offers a two-step account of collective responsibility of democratic citizens for what their government does that also makes use of the idea of commitment, but at a more fundamental level. A democratic citizen can avail herself of procedures and institutions capable of changing immoral laws and policies. Assuming that she is concerned to promote justice and other moral causes, she has a good reason to make use of these procedures and institutions for that purpose. This still does not explain why she has a duty to use them. In Thompson’s view, this duty obtains if the citizen has reason to believe that a considerable number of fellow citizens are committed to joining

Introduction xxvii

her in making their democracy work. This belief comes from her encounters with other citizens in the public arena. Such a commitment can be shared not only with like-minded citizens but also with those whose political and moral views are otherwise different from one’s own; it constitutes the moral and political foundations of wellfunctioning democracy The problem of ‘dirty hands’ in politics, discussed at length in the first three chapters of Part I, is considered again, from a different angle, by Rob Sparrow (chapter 10). In its usual version, the problem arises within politics: it highlights seriously wrong actions that nevertheless ought to be performed for the sake of a paramount political end. According to Sparrow, the tension between morality and politics goes deeper. The very existence of the realm of politics requires that morality be routinely violated, because political community as such – its very identity and continued existence – is predicated on the denial of the moral claims of non-members. Politics is a practice within a political community; it concerns relations between its citizens. Morality is a set of obligations that we owe to any person by virtue of our shared humanity. One of these obligations is that of justifying our actions to the particular persons adversely affected by them. Morality is universal, while politics has to be partial. The existence of distinct political communities requires borders, which serve to exclude outsiders. There are five main lines of moral argument in favour of state borders: such borders and the exclusion they entail may be justified as a means to some important political goods, as a way of preserving some important cultural goods, in terms of freedom of association, as an inevitable consequence of the existence of distinct political communities, and as part and parcel of our political practices whose elimination is well-nigh impossible to envisage. Taken together, these arguments provide a strong case for the necessity of borders. However, while state borders may well be politically necessary, they are morally arbitrary. Their location is a matter of historical contingency. More importantly, the distribution of persons across borders is morally arbitrary: which persons are members of which political community is not determined by any morally respectable principles, and the benefits of belonging to any such community are neither earned nor deserved in some other way. When we prevent people from crossing our borders, we can offer no justification to them – to each one of them separately – why we are on this side of the border while they are, and must remain, on the other. If they have compelling reasons for wanting to cross our border – for instance, if they are refugees – when

xxviii Introduction

we exclude them, we default on our moral obligation to justify our decision to them. For ‘the policy concerns which explain why it might be a bad thing to do to let them in are oblivious to the moral demands of this person’ (p. 182). Yet, if we are to ensure the continued existence of our political community, we cannot admit all those who want to become its members. The price of political community, then, is the immoral exclusion of others. The ‘barbarians’ in Sparrow’s title are not foreigners converging on our gates and clamouring to be let in. The word refers to us, who keep the gates shut, although we cannot offer a sound moral justification for doing so to those we condemn to remain outside. But we do not have a choice. For a political community to exist, we must act like barbarians at the gates. A problem of ‘dirty hands’ seems to lurk at the very foundations of politics. The next three contributions address further topical issues arising in the intersection of politics and morality: lying and deception in politics, the use of torture, and military obedience. The current widespread disillusion with politics and cynicism about politicians is due to a large extent to what the public perceives as deception and outright lying endemic in democratic politics, especially at election time. David Lovell undertakes a qualified defence of democratic politics, arguing that the notion of ‘lying’ used in this context needs to be deployed more carefully than sparring politicians and the media usually do (chapter 10). There is a range of speech acts covered by the popular use of the term ‘lying’. The literal understanding of lying as deliberate deception is often conflated with other, complex phenomena of democratic politics, such as politicians changing their minds on issues, making (and then breaking) promises and keeping secrets. A particularly insidious form of lying in politics is ideological lying, where both reason and reality are ignored or submerged in order to maintain ideological tenets, and where self-deception precedes deception of others. While these more complex types of lack of truthfulness or consistency are indeed part and parcel of political discourse, Lovell claims, lying in the strict sense is rare, for the simple reason that it is usually easy to detect; if some recent examples can be readily cited, that is because they are exceptional. The popular disillusionment with politics may be due more to a simplistic view of the nature of political discourse and unrealistic expectations of politicians than to deliberate deception on their part. Lovell is also sceptical about the prospects of laying down rules concerning lying and deception in politics; political speech is highly contextual and does not lend itself to such regulation.

Introduction xxix

Recent examples of deliberate deception by politicians include those to do with the ‘war on terror’, waged in response to the terrorist attacks in the United States, United Kingdom and elsewhere since 2001. This ‘war’ gives rise to further difficult moral issues, as liberal democracies try to prosecute it while staying within the bounds of morality and legality. One of the most dramatic of these issues, that of torture, is used as an example of a ‘dirty hands’ scenario in several discussions in Part I; it is the subject of the contribution of John Kleinig (chapter 11). Kleinig gives an account of torture – of what it is and what is morally wrong with it – that highlights pain or suffering deliberately inflicted, but also its features that explain why we find torturing humans so repugnant: the person tortured is utterly defenseless, at the mercy of the torturer, who seeks to undermine the distinctively human capacities of the victim and reduce her to a mere object and who, in doing so, brutalizes both the victim and himself. Torture of humans is both inhumane and inhuman. Obviously, torture is morally wrong in itself, and to an extremely high degree. But is it wrong absolutely, never to be resorted to, whatever the circumstances and whatever the price of refusing to employ it? At this point we have to face the ‘ticking bomb’ argument, deployed by Walzer and others to show that extreme circumstances call for extreme measures (see above, p. xvi). Kleinig points out the high epistemic requirements the argument assumes; they are acknowledged by philosophers and legal thinkers debating the admissibility of torture, but tend to be disregarded by those actually deciding on its use. He rejects the ‘dirty hands’ position. In such cases we do better to acknowledge that morality can no longer tell us what we ought to do: ‘to recognize that in some situations however we act we act badly. An official confronted with a ticking bomb will not be justified in using torture to reveal its location; but neither will that official be justified in jeopardizing a large population of innocents’ (p. 219). The best such an official can do is to act in a way partly analogous to civil disobedience. If fully convinced that he is facing such a situation, he might authorize, or employ, torture, thus violating an extremely stringent moral prohibition and breaking the law, and be prepared to face the consequences. He should then defend his action in court, hoping that the court, and society at large, will recognize the dilemma he faced and understand the choice he had to make. All this has to do with torture as a ‘one-off’ matter, and presupposes that there is no policy that permits torture. At the level of policy, we should reject torture altogether, rather than try to minimize it by proffering a moral refuge for it.

xxx Introduction

Recourse to torture in the ‘war on terror’ indicates another array of problems in the relation between morality and politics: those arising in military ethics. The military is part and parcel of the state, and war is politics carried out by other means. When the use of torture in Abu Ghraib prison was publicized, it was seen as casting a shadow on the moral credentials of the US military in Iraq and on its moral and professional integrity in general. The same is true of a string of cases of soldiers’ brutality towards, including deliberate killing of, Iraqi civilians. Some of the military personnel involved in the Abu Ghraib case claimed in court that they had merely done what they had been ordered to do; but since the Nuremberg war crimes tribunal, ‘following orders’ is no longer a defence to charges of grave breaches of the laws and customs of war. ‘Crimes of obedience’ are indeed crimes. Officers and soldiers are expected to adhere to the laws of war and to disobey orders that violate those laws. On the other hand, obedience has always been considered a central military virtue. This tension between the moral and legal restraints on war and the requirement of obedience in the military is explored by Jessica Wolfendale (chapter 13). The obvious way to overcome, or at least attenuate, this tension is to provide for reflective, rather than unthinking, blind, unlimited obedience – for obedience that is informed by the values and principles defining the morally acceptable ways of waging war, and that is accordingly critical and limited. Yet, as Wolfendale shows, military training methods currently in use (as opposed to the rhetoric about the military profession and its virtues and ideals) are quite unlikely to help develop such obedience. On the contrary, they make for blind obedience, desensitize soldiers to the moral hazards of what they do and ultimately undermine their moral agency. They facilitate, rather than help prevent, crimes of obedience. There is thus a fundamental inconsistency between the rhetoric of the military profession and the reality of military training, which casts doubts about the moral foundations of the military institution. There are, to be sure, further topics to do with the morality – or immorality – of politics not discussed in this collection. Foreign aid, humanitarian armed intervention or the justification of political violence, and in particular of terrorism, are some of the issues that come to mind that had to be left out here for lack of space. Still, this volume as a whole offers a sustained and comprehensive exploration of the complex and troublesome relation between politics and morality. The contributions in Part I examine this relation at a general level, while those comprising Part II do so by addressing a number of concrete

Introduction xxxi

moral issues arising in political action. None of the essays separately, nor the book as a whole, can be expected to settle any of these issues, let alone resolve, once and for all, the fundamental theoretical problem of whether, and how, moral values and principles apply in the realm of politics. But I trust the book will provide much food for thought for anyone engaging with these questions.

Notes 1 I. Kant, ‘Toward Perpetual Peace’, Practical Philosophy, ed. and trans. M. Gregor, Cambridge: Cambridge University Press, 1996, pp. 346–7. 2 Erasmus, The Education of a Christian Prince, trans. N. M. Cheshire and M. J. Heath, ed. L. Jardine, Cambridge: Cambridge University Press, 1997, p. 94. 3 Plato, The Republic, 389b. 4 N. Machiavelli, The Prince, ed. P. Bondanella, trans. P. Bondanella and M. Musa, Oxford: Oxford University Press, p. 52. 5 Machiavelli, The Prince, p. 60. 6 N. Machiavelli, The Discourses, ed. B. Crick, trans. L. J. Walker, Harmondsworth: Penguin Books, 1998, p. 515. 7 In another famous passage, Machiavelli praises the citizens of Florence who were willing to jeopardize their immortal souls for the sake of their city. See The Florentine History, trans. N. H. Thomson, London: Archibald Constable & Co., 1906, vol. I, p. 175. 8 M. Weber, ‘Politics as a Vocation’, The Vocation Lectures, ed. D. Owen and T. B. Strong, trans. R. Livingstone, Indianapolis: Hackett, 2004, p. 86. 9 Weber, ‘Politics as a Vocation’, p. 92; emphasis deleted. 10 M. Walzer, ‘Political Action: The Problem of Dirty Hands’, Philosophy and Public Affairs, vol. 2 (1972/73), p. 160. 11 J. P. Sartre, No Exit and Three Other Plays, trans. Stuart Gilbert and Lionel Abel, New York: Vintage Books, 1955, pp. 223–4. 12 Walzer, ‘Political Action’, p. 164. 13 Walzer, ‘Political Action’, pp. 167–8. 14 Walzer, ‘Political Action’, p. 174. 15 See further the exchange between de Wijze and Nielsen that followed the publication of Nielsen’s paper: S. de Wijze, ‘The Real Issues Concerning Dirty Hands: A Response to Kai Nielsen’, and K. Nielsen, ‘There Is No Dilemma of Dirty Hands: Response to Stephen de Wijze’, both in South African Journal of Philosophy, vol. 15 (1996). For a wide-ranging selection of views and arguments concerning the ‘dirty hands’ issue, see P. Rynard and D. P. Shugarman (eds.), Cruelty and Deception: The Controversy over Dirty Hands in Politics, Peterborough: Broadview Press, 2000. 16 Walzer, ‘Political Action’, p. 176. 17 Walzer, ‘Political Actions’, p. 177.

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Part I

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1 Dirty Hands: Doing Wrong to do Right Stephen de Wijze

Can it be right to do wrong? Could it ever be the case that it is right to execute one innocent person in order to save the lives of ten others? Could situations arise where it would be permissible – even laudatory – to punish a person known to be innocent? Elizabeth Anscombe maintained that anyone who even contemplated such scenarios showed a corrupt mind.1 Alan Donagan argues that the problem of dirty hands, doing what is wrong to do right, ‘arises from a twofold sentimentalisation: of politics, imagining it as an arena in which moral heroes take hard (that is, immoral) decisions for the good of us all; and of common morality, ignoring the conditions it places on the immunities it proclaims’.2 Utilitarians, such as Brandt and Hare, argue that such questions simply heap confusion on already difficult situations. To ask such a question is to reveal a deep misunderstanding of morality, one that is uncritical and primitive. Indeed, to claim that an action can be wrong but nevertheless right does seem to be analytically sheer nonsense. Recently, however, there has been a growing literature on the problem of dirty hands.3 Far from the question being obscure, obfuscatory and confusing, I believe it sheds light on a pervasive aspect of our moral reality which can be traced in literature from the works of Aristotle, Shakespeare and Machiavelli, to more recent authors such as Melville, Brecht, Weber and Sartre (to mention a few). Eminent contemporary philosophers, such as Michael Walzer and Stuart Hampshire among others, take the problem of dirty hands seriously, arguing that it cannot be ignored since it forms part of our moral reality. I believe there is something to learn about the reality of our moral life from explaining the notion of dirty hands.

3

4 Stephen de Wijze

Therefore, the main concern of this chapter is to examine the idea of dirty hands in order to establish a greater insight into what kind of notion it is and to show that it is indeed part of our moral reality. In short, I want to argue that critics like Anscombe and the utilitarians are mistaken and that we need to take the notion of dirty hands seriously and begin to ask what is the appropriate response to it.4 In so doing we gain an understanding of what kind of moral theory would more honestly reflect our moral reality. I do this by addressing two sets of questions. First, what ordinarily do we understand to be a paradigm case of dirty hands? Are dirty hands problems exclusive to those who find themselves in public office, or can such situations arise when a person is acting in their private capacity? Are these situations which involve moral dilemmas (as Walzer describes them) or can they arise in situations of ordinary moral conflict, when an agent is forced to choose between the lesser of two evils?5 Is it merely a conceptual confusion to talk about getting one’s hands dirty, that is, doing right by doing wrong? Second, what constitutes the dirty aspect of the dirty hands scenario? What makes such acts dirty ones as opposed to cases of just moral dilemmas or moral conflicts?

Dirty hands: some initial characterizations Michael Walzer presents us with a scenario of the politician who, on coming to power, finds herself faced with a decision of whether or not to torture a terrorist for information that can save the lives of innocent civilians.6 The politician acknowledges that torture is unconditionally wrong and also acknowledges a moral obligation to protect citizens in her state. This example has become a paradigm case of dirty hands and arises in a moral dilemma situation where moral claims of one’s private life clash with duties and obligations required when holding political office. A person faced with such a situation acknowledges that both moral claims are legitimate and also that there can be no possibility of trade-off or compromise. If a person finding herself faced with such a situation chooses to act in accordance with the obligations and duties required of office-bearers (or indeed refuses to act), then she will get her hands dirty. Resignation from office,7 so that the decision is left to another person, is the only way to avoid getting dirty hands. Sartre in his play Dirty Hands dramatizes this problem by having Hoederer, a communist politican, argue with Hugo, a young idealist in his party:

Dirty Hands: Doing Wrong to do Right 5

Hugo: I never lie to our comrades. … Why should you fight for the liberation of men, if you think no more of them than to stuff their heads with falsehoods? Hoederer: I’ll lie when I must, and I have contempt for no one. I wasn’t the one who invented lying. It grew out of a society divided into classes, and each of us has inherited it from birth. We shall not abolish lying by refusing to tell lies, but by using every means at hand to abolish classes. … Hugo: And the best means you’ve found to fight that class is to ask it to share power with you? Hoederer: Right! Today it’s the best means. … How you cling to your purity, young man! How afraid you are to soil your hands! All right, stay pure! What good will it do? Why did you join us? Purity is an idea for a yogi or a monk. You intellectuals and bourgeois anarchists use it as a pretext for doing nothing. To do nothing, to remain motionless, arms at your sides, wearing kid gloves. Well, I have dirty hands. Right up to the elbows. I’ve plunged them in filth and blood. But what do you hope? Do you think you can govern innocently?8 Bertolt Brecht in his play The Measures Taken echoes the sentiment. The Control Chorus makes the case for dirty hands quite explicit: With whom would the just man not sit To help justice? What medicine is too bitter For the man who’s dying? What vileness should you not suffer to Annihilate vileness? If at last you could change the world, what Could make you too good to do so? Who are you? Sink in filth Embrace the butcher, but Change the world: it needs it!9 I agree with Sartre and Brecht that it is impossible to govern innocently. I contend that this has been something that those involved in realpolitik have always intuitively known. The political world is one characterized by what Stuart Hampshire calls ‘experience’ (as opposed to ‘innocence’), the ‘idea of guilty knowledge and the expectation of unavoidable squalor and imperfection, of necessary disappointments

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and mixed results, of half success and half failure. A person of experience has come to expect that her usual choice will be the lesser of two or more evils.’10 I take these views to be common intuitions about our social world which accord with our moral reality. Opponents of this view would probably argue that I have fallen too heavily for a medieval notion of politics with the dangerously romantic idea (the sentimentalization that Donagan refers to) that realpolitik requires one to flirt with evil and condone or partake in immoral activities. The dry bureaucratic governments, especially of modern democracies, are not appropriately described by what I have said. However, to discuss and defend the claims above is not the purpose of this chapter. My interest is to show that the descriptions of dirty hands situations I have given do not provide the necessary and sufficient conditions for a dirty hand scenario. They leave too many important questions unanswered. I think it is possible to offer a more rigorous analysis, one that includes an account of the agent’s role in causing evil (even though these actions were immorally coerced from an evil source), criteria to ascertain the possibility of reasonable success of reducing or minimising evil consequences, and an account of the betrayal of persons, cherished values and principles. Before embarking on an analysis of dirty hands, a last preliminary point. In assuming that one inevitably gets dirty hands (especially when involved in the political sphere), I am not claiming that goodness and virtue are always helpless in a pervasively evil world, or that there is no point trying to act morally under conditions where it is hard to do so. Neither am I suggesting that there are no serious dangers in accepting that at times one is morally required to do immoral or evil acts. ‘A man doesn’t lose his soul one day and find it the next.’11 Rather, by examining the problem of dirty hands, I am attempting to make clearer a phenomenon which I take to be a pervasive part of our moral experience which, until recently, has been largely unexamined by moral philosophers: the phenomenon of doing wrong to do right.

Dirty hands and conceptual confusion Is it possible to have an action which is 1) justified, even obligatory, but also 2) none the less somehow wrong? Prima facie this is a blatant contradiction. The contradiction arises since dirty hands involve what Stocker calls double-counted impossible oughts.12 When faced with a dirty hands problem, ‘the dirty feature is taken into account once in determining the overall value of the act and again on its own. It is thus

Dirty Hands: Doing Wrong to do Right 7

double-counted’. In addition, when evaluating the moral worth of an action, theorists tend to be interested in the overall evaluation of the act. Such evaluations are reached after considering the variety of reasons for and against a particular action. An overall evaluation results from a synthesis of particular considerations. The overall evaluation will inform us as to whether we ought to do, or ought not to do, a given act. However, in the case of dirty hands such overall evaluations do not negate or render impotent the partial evaluations which were required to arrive at the overall evaluation. What is overridden is the action-guiding significance of that dirty feature(s), not its wrongness. ‘It remains as a disvalue even within that justified, perhaps obligatory whole – a disvalue which is still there to be noted and regretted.’13 The non-action-guiding act evaluations leave the agent feeling polluted, remorseful or with what Bernard Williams refers to as ‘agent-regret’.14 Walzer, Nagel and Williams acknowledge these problems but maintain that despite this we need to recognize that dirty hands exist as a pervasive part of our moral reality. Stocker goes further and maintains that there is no conceptual confusion and that this can be seen by a careful analysis of some foundational features of choices, actions and costs. The charge of conceptual confusion arises due to the critics’ adherence to ‘strange theories of values’.15 Examples of such are where values are seen as so interdependent that it is held that whatever is incompatible with what is to be done cannot be good in any way, and whatever is necessary for what has to be done cannot be bad in any way. Or, from the point of view of evaluations, they are understood as simply and completely comparative (where we search for the better or top-ranked option) or concerned solely with finding the option most preferred, enabling the discarding the others. I endorse Stocker’s position. Those who maintain that the notion of dirty hands is a conceptual confusion would need to adhere to certain theories of values and it is not clear why those are the a priori correct or necessary theories of values to adopt. In short, instead of dismissing dirty hands as arising from primitive moral sensibilities, it would be better to re-examine (and if necessary reject) the moral theories that attempt to exclude a priori the possibility of moral dilemmas, moral conflict and dirty hands. Another argument can be used to show that double-counted impossible oughts and particular act evaluations are not conceptually confusing. If one takes moral values to be like cognitive beliefs, then indeed confusion arises. Given two beliefs, say that one’s car is parked at home and that one’s car is parked at work, it would be irrational to continue

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to hold the belief that one’s car is at home when you establish that it is parked at work. The belief that one’s car is parked at home falls away and to double-count it would be irrational. This would be a clear case of conceptual confusion. But if one understands moral imperatives to be like desires, then the conceptual confusion disappears. Consider the desire to eat a large jam doughnut and the mutually exclusive desire to lose weight. Deciding to eat the doughnut does not abolish the desire to lose weight. It simply overrides it and leaves one feeling ‘guilty’. There may be good reasons to eat the doughnut and in certain circumstances that may be the right thing to do – out of politeness to a host, for example – but the desire to diet does not disappear as a result. It is impossible to eat the doughnut and keep on a diet, so we have incompossible desires. As an overall evaluation it is right to eat the doughnut, but a particular desire to diet remains despite being overridden. Circumstances arise where two desires (or moral values) cannot be satisfied and deciding to act one way rather than another does not eradicate all the force of the other desire (or moral value). It may not serve to guide one’s action, but it still remains to exert an influence on how one feels and, importantly, on what one has become.16 This is a pervasive part of our experience of the world, and although it can make our lives morally and practically very difficult, there is nothing conceptually confusing about it.

Walzer’s definition of dirty hands – some erroneous criteria Michael Walzer maintains that the problem of dirty hands results when there is an effort ‘to refuse “absolutism” without denying the reality of the moral dilemma’.17 It is not clear what he means here. It is a misleading definition (if that is what it is), which immediately suggests two erroneous criteria as minimum requirements for dirty hands: 1) that dirty hands scenarios presuppose moral dilemmas; and 2) that dirty hands scenarios arise because in some roles (most starkly in political office) a tension arises between absolutist moral beliefs (located in our private lives) and a public duty to make moral decisions by applying consequentialist criteria. I think that both claims mislead us about what constitutes the core of getting one’s hands dirty. This becomes clear when we examine examples of dirty hands involving moral conflict. For example, in order to save lives you order the destruction of precious, irreplaceable works of art to satisfy the demands of a tyrant. In this example it is right to save the lives; there is no dilemma. What Walzer attempts to stress in his definition is that

Dirty Hands: Doing Wrong to do Right 9

in all dirty hands scenarios, the agent knows that by acting as she did, she did wrong, violating a moral principle, leaving her feeling remorse or ‘agent-regret’.18 In the search for necessary and sufficient conditions for dirty hands scenarios, the question of whether dirty hands involve moral conflict rather than moral dilemmas, or vice versa, is misleading. We can offer examples of dirty hands scenarios which probably involve moral dilemmas (Walzer’s politician) and those that only involve moral conflict (destruction of artworks to save lives). In the case of dirty hands moral conflict there are incompossible moral duties. The fulfilment of one duty, A, does not negate the other duty, B, even if there are in sum better reasons for doing A rather than B. All dirty hands scenarios require as a necessary condition moral conflict of this sort. Moral dilemmas are simply a type of moral conflict where there can be no right overall choice to be made between incompossible oughts. The vigorous dispute over whether there can be actual moral dilemmas or genuine moral conflict results from what seems to be an attempt to force our moral experience into ethical models. (Kant and Hare, obviously for different reasons, would have claimed that there are only prima facie moral conflicts.) Perhaps the existence of dirty hands highlights the fact that there are indeed moral dilemmas and genuine moral conflict. However, since dirty hands cases often acknowledge that there is a right choice to make even at great cost (where in a dilemma there can be no right moral choice), I shall argue, following Michael Stocker,19 that dirty hands cases are mainly a special sort of moral conflict where an action is ‘justified, even obligatory, but also none the less somehow wrong’. However, not every wrong action is a dirty action and not every moral conflict involves dirty hands. Furthermore there can be dirty hands cases which involve moral dilemmas, whereas many moral dilemma situations do not involve dirty hands. What of Walzer’s second point? Is the distinction between the public and private central to the notion of dirty hands? And is there a tension between absolute moral values in private life which conflict with a duty to use consequentialist calculations in public office? Walzer, Hampshire, Nagel and others have argued (I think persuasively) that public office requires one to accept duties and obligations that may conflict with one’s private moral beliefs.20 The oath of office, greater powers, the need to protect all citizens, the stress on having to make decisions with limited information and scarce resources impose additional duties which are not part of a person’s private life. However, to

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defend this position is beyond the scope of this chapter. Critics argue that public office requires no unique additional moral duties. Rather it simply extends the range of possible situations in which a person needs to make moral decisions. The difference is one of scope rather than of differing values. But for the purposes of this chapter it is not important for me to resolve this problem. It is sufficient to point out that whatever the difference between public and private spheres, this problem need not be solved to find a rigorous definition of dirty hands. The necessary conditions lie elsewhere and this can be seen by realising that one can dirty one’s hands in private life. Being forced by a Nazi-type oppressor to kill one person to save ten others leaves one with dirty hands even though one is not acting in a public capacity. A more trenchant claim is that the core of dirty hands results from a conflict between absolutist moral values (e.g. it is wrong to torture persons under any circumstances) and the moral duty (in both private and public life) to find action-guiding decisions based on consequentialist considerations (the need to find out information to prevent the deaths of innocent citizens). This position is taken by some opponents of dirty hands as its core, as a sufficient condition for identifying dirty hand scenarios. Further, they maintain that if this is indeed what generates dirty hands scenarios, then it is a bogus problem. It is bogus for two reasons: first, it misunderstands both consequentialist and deontological moral theory; and, second, this leads to conceptual confusion resulting in contradictory claims such as ‘it can sometimes be right to do wrong’. Both deontologists and consequentialists see the problem of dirty hands dissolve when the moral and conceptual confusion is cleared up. It is now easy to see where Anscombe’s comment about the corrupt minds comes from, and to understand the utilitarian reaction that dirty hands scenarios result from a primitive and uncritical understanding of moral theory. However, neither the deontologists nor the consequentialists provide adequate moral theories to account for our moral reality. The fact that we get our hands dirty is one reason to highlight their inadequacy. In all dirty hands scenarios there is a means/ends analysis. Doing wrong to do right (or to ensure the lesser of two evils) necessitates a careful consideration of the outcome of one’s actions. But this must not be confused with the claim that necessary and sufficient conditions for dirty hands require that there be a conflict between deontological values and the need for consequentialist action-guiding decision criteria. This may be the case in some dirty hands scenarios but it is not necessarily so. We can get dirty hands when confronted with choosing

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between two cherished moral principles. Sophocles’ Antigone, as I interpret the play, offers an example of such a situation. Antigone is not simply faced with a situation of moral conflict; she is forced to dirty her hands by betraying her city and disobeying its legitimate ruler, Creon. Antigone’s brother Polynices has been killed leading an attack on the city. Creon decrees that his body is to be left unburied outside the city walls. Not only is he an enemy of the city but he is also a traitor who has pitted brother against brother. Nevertheless this order is an immoral one. It violates Polynices’ family’s and Creon’s ‘deepest religious obligation to bury the corpse’.21 So Antigone is forced into a moral conflict. To fulfil her religious and family obligations, she must forgo her civic duties and accord honour to her city’s enemy by giving their dead leader a proper burial. For Antigone there is only one course of action which she reveals to her sister Ismene: Antigone: Is he not my brother, and yours, whether you like it Or not? I shall never desert him, never. Ismene: How could you dare, when Creon has expressly forbidden it? Antigone: He has no right to keep me from my own.22 She disobeys Creon and buries Polynices. So Antigone dirties her hands. The important point to note here is that the necessary and sufficient conditions for dirty hands scenarios do not lie in the conflict between absolutist values and a consequentialist (or other) need for an overall action-guiding criterion. Such a tension is found in many cases of moral conflict, but certainly not all. One can be faced with a conflict between two values where whatever one chooses to do will result in dirty hands.23 Other features are needed to account for the dirt on dirty hands.

The dirty features of dirty hands There are other features of dirty hands that distinguish them from moral conflict, dilemmas and simply bad actions. As pointed out above, dirty hands are certain kinds of special conflict, ones that involve dirty acts. Dirty hands can occur in the public as well as the private sphere and do not require a clash between absolute values and consequentialist action-guiding decision criteria. What, then, are these special features? What distinguishes dirty hands from a moral dilemma or moral conflict or ordinary immoral actions? Again, Stocker provides some criteria.24 Adopting and adding to his criteria, it

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seems to me that in all cases of dirty hands what is common is that actions involve the justified betrayal of persons, values or principles due to the immoral circumstances created by other persons (or organizations of persons) within which an agent finds herself. In such circumstances, a good person finds it impossible not to be moved by moral considerations to commit moral violations. In order to minimize further evil, arising from the unchecked evil of these immoral circumstances, the agent is forced to cooperate with evil, so furthering its immoral projects. In doing that there is an acknowledgement by the agent (and those that forced her to participate in dirty acts) that she is changed by doing evil and that her victims are changed by suffering evil. How is this situation different from ordinary cases of horrendous moral conflict or dilemma? The difference lies in who or what created the evil circumstances. Dirty hands occur when the evil circumstances are created by other human beings. The natural evil of the world, or the evil circumstances created by God (or gods), simply leave us in a moral dilemma. Evil human agency is crucial to the dirty hands scenario. Another necessary criterion for dirty hands needs to be outlined. Dirty hands occur only when an agent is moved by moral considerations to commit moral violations. These moral considerations must be made in good faith. A betrayal of persons, values or principles can be justified only if such actions bring about some good or the lesser of two evils. Almost any immoral practical choice, it seems, can be deemed to be a dirty hands scenario by an argument which claims that such an action was necessary to prevent a greater evil. How one calculates the evil prevented and the evil done is no small problem even in fairly simple scenarios. In complicated cases, typically found in the public sphere, to calculate the consequences of furthering or not furthering an immoral project can be well-nigh impossible, or so dubious that to argue for a dirty hands scenario is to act in bad faith – to be simply immoral. For a scenario to be one of dirty hands and not simply an irredeemably immoral and evil act, the costs of one’s actions must be reasonably calculable, and there must be a reasonable chance that one’s immoral actions will indeed prevent the greater evil. What is reasonable depends on the particular circumstances and, crucially, on whether one’s immoral actions will indeed bring about the lesser of two evils. Assassinating a political leader in the hope that her death will bring about wanted changes in the country is immoral with no redeeming features. Assassinating a leader who advocates and carries out genocide and whose death will bring about a prompt halt (or

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drastic reduction) to the genocide would be classified as an action which falls under the class of dirty hands scenarios. Consequently, the consideration of reasonably calculable costs and benefits provides one important criterion for distinguishing dirty hands situations from those where the agent simply acts immorally. Justified betrayal, furthering evil projects for moral reasons because one is reasonably sure that one’s actions will bring about the lesser of two evils and suffering remorse or agent-regret from so acting, constitute the essence of what is involved in getting dirty hands. These aspects combine ‘in a particularly vicious way’25 and constitute the core of what is involved in dirty acts. Consider the following cases: 1. A captain of a ship jettisoning goods in a storm to save the ship and its crew. 2. University authorities prevent a speaker from holding a meeting on campus as they fear that the presence of this person would seriously undermine the peace and security of the campus. They decide to opt for stability and security at the cost of freedom of speech. 3. A decision needs to be made by a doctor to save one person rather than another as there are insufficient medical supplies to save both.26 4. Carpet-bombing a city in the hope that by killing many civilians the war will be shortened, thereby saving many more lives in the long term. 5. Sophie’s dilemma in William Styron’s novel Sophie’s Choice. Sophie is forced by a Nazi guard to choose which of her two children to save from certain death. If she refuses to choose, then both children will be killed. 6. Voting in a referendum for a position which entrenches the power of an unjust government (e.g., voting for F. W. de Klerk to endorse a policy of negotiation and change in South Africa). 7. A politician knows that policy X is in the public interest. She also knows that the voting population do not believe that policy X is in the public interest. She deceives the public by claiming that she is or will be pursuing policy Y when in fact she pursues, and will continue to pursue, policy X.27 8. Deceiving a friend’s wife about her husband’s activities with other women so that the marriage (which is on shaky ground) can be salvaged.

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9. In order to save a number of villagers’ lives, you order the destruction of a holy place which contains many irreplaceable works of art. 10. In order to save hostages from being killed, you agree not to prosecute certain terrorists. Except for 1, 2 and 9, the above cases involve people being wronged, and their trust, integrity and status as ends violated, dishonoured and betrayed. Dirty hands can arise with the destruction of precious works of art or holy sites (case 9) and with the compromise of a valued principle (case 10). Betrayal and violation, benefiting and harming persons, are necessary, but not sufficient, reasons to indicate dirty hands. Cases 1, 2, 3 and 4 are not cases of dirty hands. They are either cases of moral conflicts (1 and 2), or a horrendous dilemma (3), or an immoral policy (4), but no dirty hands are involved. Case 2 represents a moral conflict, but no dirty act is committed. The university authorities must choose between two conflicting principles: the duty to ensure the safety of students and staff, and the duty to foster freedom of speech. Choosing between two cherished principles is the kind of problem most of us face at some point in our lives and fortunately the decision on how to act, although sometimes very difficult, does not involve getting our hands dirty. Case 3 is not an instance of dirty hands unless the selection of one person rather than another was done unfairly and arbitrarily, under the threat that otherwise greater evil (the killing of both, or of other innocent persons) will occur. Case 4 is one of plain immoral action attempting to masquerade as dirty hands. There is no possibility that military leaders can justify the killing of civilians on the basis that this may save more lives in the future. Similarly, the dropping of atomic bombs on Hiroshima and Nagasaki in 1945 were immoral acts and cannot fall under the rubric of dirty hands scenarios. Even if with hindsight it can be shown that the bombing reduced the number of casualties (on both the Allied and Japanese sides) in the long term, this cannot justify such actions as immorally coerced to bring about the lesser of two evils. Finally, cases 5–10 do involve dirty hands. Some examples are found in the public sphere (cases 5, 6, 7, 9 and 10), but this does not preclude dirty hands arising in the private sphere (case 8). Case 5 involves a moral dilemma, whereas cases 6–10 are those of moral conflict. Dirty acts go beyond simply harming someone. They involve justified betrayal and violation of a person, value or principle. And there is more. The costs of such actions must be moral costs. Put

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another way, the immorality of the circumstances in which one has to make the decision highlights one important difference between dirty hands and other cases. Take case 3, where the doctor has to decide who will live. Whichever person the doctor decides to save, she will thereby condemn the other, and the decision will leave a sense of profound regret. The doctor could try to save both, but then both will die – a worse scenario. Thus she is forced to play God and choose. No evil project is furthered by her actions, unless one considers our lack of omnipotence and certain natural conditions of the world to be evil. Such an all-encompassing account of evil is too broad and mystical. As noted above, I prefer to limit the notion of evil to malicious human activities which cause the unnecessary misery and suffering of others. Sophie, on the other hand, has to choose between her two children. If she doesn’t choose who is to live and who is to die, then the Nazi doctor will have both killed. Like the doctor in case 3, she is forced to play God and choose. The difference between these two cases is that Sophie is forced to implement an immoral project due to the evil designs of another person or group of persons. She is forced to betray and violate the autonomy and personhood of others (and herself) in a particularly vicious way. In attempting to mitigate the evil she confronts she is immorally coerced to become an active part of an unspeakably immoral and evil project. Finally, some important points mentioned above need to be stressed again. First, although the need to commit dirty acts can and does occur in private lives, the natural home of such acts is in the public sphere, especially politics. Political manoeuvring and the allocation of scarce resources among different individuals or groups provides fertile ground and much temptation for immorality and immoral coercion. This explains why authors such as Walzer, Hampshire and Nagel use political examples of dirty hands as paradigmatic cases. This leads to the second point. The phenomenon of dirty hands highlights that the world is a place where, due to the evil actions of others, we can be forced (for moral reasons) to be immoral and in so doing irredeemably stain our lives, changing how we see ourselves and our victims, and leaving us feeling polluted and dirty. Our actions are not the sole determinant of whether we are moral or not; what others do can affect our acts, and we have little or no control over other people’s actions. This point seems to be missed or strongly played down by consequentialist and absolutist moral theories. Dirty hands scenarios arise in cases where there is moral conflict and the agent is immorally coerced to further an evil project because of

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moral values she may hold. The dirt from such acts sticks because we know that we have intentionally furthered the aims of evil. To be a murderer, liar, betrayer, etc. and feel remorse is not simply to recognize that one has done what one ought not to have done. It is also to realize that in doing evil we discover what we have become and ‘what it is for another to be a fellow human being’28 who has suffered evil caused by us. Dirty hands scenarios indicate that work must be done to find (or adapt existing) moral theory which can account for the nonaction-guiding evaluations and double-counted impossible oughts. In addition to asking what is the moral course of action in a particular set of circumstances, such a moral theory should be able to characterize a particular situation and capture the evil in it, and the cost it exacts from those who perpetrate the evil and those who suffer from it. A significant part of our moral reality consists in examining such descriptions which are not exclusively concerned with the question of what we ought to do in certain circumstances. We make moral decisions which change our lives forever and face situations (often not of our own making) which are placed in contexts rich with historical and local associations. These associations weigh heavily in our moral decisions. Moral theories which systematically remove such associations in favour of an abstract principle, such as maximizing utility or abstract rationality, do violence to a part of our moral reality to which the phenomenon of dirty hands belongs.

Acknowledgements Thanks to Ian Macdonald, Seumas Miller and Jeremy Barris for comments on an earlier draft, and Marius Vermaak, Tony Fluxman and Francis Williamson for comments during a staff seminar at the Rhodes University Philosophy Department First published as Stephen de Wijze, ‘Dirty Hands – Doing Wrong to do Right’, South African Journal of Philosophy, vol. 13 (1994), no. 1, pp. 27–33. Reprinted by permission.

Notes 1 E. Anscombe, ‘Modern Moral Philosophy’, Collected Philosophical Papers, Oxford: Blackwell, 1981, vol. 3, p. 40. 2 A. Donagan, The Theory of Morality, Chicago: University of Chicago Press, 1977, p. 189. 3 A fairly comprehensive bibliography can be found in Michael Stoker, Plural and Conflicting Values, Oxford: Clarendon Press, 1990, pp. 9–10. Dennis

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4

5

6 7

8 9 10 11 12

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Thompson’s Political Ethics and Public Office, Cambridge, MA: Harvard University Press, 1987, p. 206 n. 7, offers a list of contemporary discussions of the problem of dirty hands. Michael Walzer explores three responses to dirty hands that are found in the literature – the neoclassical approach (Machiavelli); the Protestant approach (a view described by Max Weber); and the Catholic approach (found in the work of Albert Camus) – in M. Walzer, ‘Political Action: The Problem of Dirty Hands’, in M. Cohen, T. Nagel and T. Scanlon (eds.), War and Moral Responsibility, Princeton, NJ: Princeton University Press, 1974, pp. 76–82. However, I wish to leave the discussion of these responses for another occasion. I take moral dilemmas to be a species of moral conflict where there can be no overall right action. I believe that Walter Sinnott-Armstrong (Moral Dilemmas, Oxford: Blackwell, 1988) offers the best definition of a moral dilemma. It includes the following four criteria: 1) there is a moral requirement for an agent to adopt each of the two alternatives; 2) neither moral requirement is overridden in any morally relevant way; 3) the agent cannot adopt both alternatives together; and 4) the agent cannot adopt each alternative separately. I think a fifth criterion must be added to make explicit what is implicit in 1) and 3). 5) There can be no option whereby refusing to actively adopt either of the moral requirements serves as a means to avoid the dilemma. Walzer, ‘Political Action’, pp. 68–70. Resignation may not be a possible option. In Walzer’s scenario the politician cannot resign as the information on the possible bombing is needed urgently and leaves no time for resignation and the appointment of a successor. At any rate, whoever succeeds will be faced with the same dilemma and so to govern effectively necessitates getting dirty hands. J. P. Sartre, No Exit and Three Other Plays, trans. Stuart Gilbert and Lionel Abel, New York: Vintage Books, 1955, pp. 223–4. B. Brecht, The Measures Taken and Other Lehrstücke, trans. Carl L. Mueller, London: Methuen, 1977, p. 25. S. Hampshire, Innocence and Experience, Cambridge, MA: Harvard University Press, 1989, p. 170. Walzer, ‘Political Action’, p. 79. The discussion on double-counted impossible oughts and non-actionguiding act evaluations is taken from Stocker, Plural and Cinflicting Values, pp. 12–13. Stocker, Plural and Cinflicting Values, p. 13. ‘Agent-regret’ is to be distinguished from ‘regret’ and ‘remorse’. Regret is the feeling that results when one wishes that the state of affairs had been otherwise; for example, the feeling one gets when one is on vacation and it rains incessantly. Remorse is a feeling that results when one knows that one has committed an immoral act and feels the guilt and shame that attach to such an action. Agent-regret is a class of feelings that one can only feel towards one’s own past actions, voluntary or involuntary. When making a decision to act in a situation of moral conflict or dilemma, or when, due to bad luck, one’s actions result in an unintended harm to others, one feels causally responsible in some sense. In cases of conflict or dilemma, and

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15

16

17 18 19 20

21 22 23

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with events that occur due to misfortune, there is a strong feeling of moral remainder or residue: the feeling that somehow one has been morally polluted because of the personal relationship one has to the action performed. In short, this feeling results from the recognition that there is something special about being an agent, that one’s relation to an event or happening is ‘something that cannot merely be eliminated by the consideration that it was not [one’s] fault’. B. Williams, Moral Luck, Cambridge: Cambridge University Press, 1981, p. 28. See Stocker, Plural and Cinflicting Values, pp. 26–8. Stocker outlines the assumptions concerning values and evaluations which make the notion of dirty hands problematic. For illustrative purposes, I have mentioned just two, one concerning values and the other concerning evaluations. In the doughnut example it seems melodramatic, at best, to worry about what we have become by eating it. However, in cases of serious moral conflict, agents, with the best of intentions, become persons who find that their causal role in the evil done is intolerable, leaving them feeling polluted and irreversibly changed by having acted as they did. Greek tragedy excels in showing us how good people are changed and ruined because of the things that happen to them or because they find themselves forced to act in circumstances not of their own making. Oedipus unknowingly kills his father and marries his mother. On discovering that he has done these things, he puts out his own eyes and goes into exile. Oedipus cannot live with the fact that he is the causal agent who has brought about such evil (even though he did so unknowingly). His actions change him even though what he intended was not the evil that came about. He has become someone he loathes and detests. Similarly, Aeschylus tells the story of Agamemnon’s tragic conflict. Agamemnon must decide between sacrificing his daughter and disobeying the gods. Whichever way he chooses he will become morally polluted, someone who will change by having done evil. Martha Nussbaum, in The Fragility of Goodness, Cambridge: Cambridge University Press, 1986, sensitively and beautifully explores this issue in some depth. Walzer, ‘Political Action’, p. 64. See note 14. Stocker, Plural and Cinflicting Values, p. 10. See Walzer, ‘Political Action’; Stuart Hampshire, Morality and Conflict, Oxford: Blackwell, 1983, chapter 5; Thomas Nagel, Mortal Questions, Cambridge: Cambridge University Press, 1979, chapter 6; Williams, Moral Luck, chapter 4. Nussbaum, The Fragility of Goodness, p. 55. Sophocles, The Theban Plays, trans. E. F. Watling, Harmondsworth: Penguin Books, 1947, p. 128. I agree with philosophers such as Isaiah Berlin (Concepts and Categories, London: Oxford University Press, 1978) and Bernard Williams (Moral Luck, chapter 5), who argue for a plurality of values which can conflict with one another and for which there can be no rational resolution. However, this is a very difficult issue and a thorough examination of it is well beyond the scope of this chapter. Stocker, Plural and Conflicting Values, pp. 19–26.

Dirty Hands: Doing Wrong to do Right 19 25 Stocker, Plural and Conflicting Values, p. 25. 26 This example represents a type of moral thinking which Garret Hardin refers to as ‘lifeboat ethics’ (‘Living on a Lifeboat’, BioScience 24 (1974)). For millions of people, this is not an esoteric or academic problem. The desperately poor and destitute, living in slums throughout the world, face this kind of problem when trying to ensure the survival of their children. Nancy Scheper-Hughes, in Death without Weeping: The Violence of Everyday Life in Brazil, Berkeley: University of California Press, 1992, pp. 403–8, gives a moving example in an account of the lives of the poverty-stricken of northeast Brazil, where parents (especially mothers) are faced with such dilemmas on a daily basis. 27 I am indebted to Ian Macdonald for discussions concerning this example. 28 This quote is from Raimond Gaita, Good and Evil: An Absolute Conception, London: Macmillan, 1991, p. 34. Gaita has a fascinating chapter on ‘Evil Done and Evil Suffered’. Gaita’s work is an excellent attempt to understand moral theory in a new light.

2 There is No Dilemma of Dirty Hands Kai Nielsen

I I will examine here the moral and political problem of dirty hands. In doing so, I will deploy and further characterize the method of ethics – with its appeal to considered judgements, and with its distinctive kind of consequentialism – which I have elucidated and defended elsewhere.1 However, an acquaintance with those writings is not presupposed, though, of course, it would be useful. It is often argued that politicians, and others as well, must sometimes take horrible (at least, normally completely unacceptable) measures to avoid even worse evils. They must, that is, sometimes dirty their hands to do what is right. When, if ever, are they justified in doing that? And in doing that, are they guilty of committing moral crimes? I shall take an austere line about the problem of dirty hands. Treating it as a moral problem for political leaders and for other political and moral agents as well, I shall argue that what should be done, in the horrifying circumstances in which problems of dirty hands arise with the greatest urgency, is always to seek to do the lesser evil where that is possible. The choice here – where there is a choice – is not between good and evil, right and wrong, but between evil and evil, between wrong and wrong. It is a truism that we should avoid evil altogether if we can. Often we cannot. Where we cannot, and yet when we still have some lebensraum to act, we should choose what we have the best reason to believe is the lesser evil.2 Anyone in such a circumstance with an ounce of humanity will feel anguish in so acting and very deep regret for having so acted or for condoning such acts. It is not that he should feel merely saddened. That is hardly an appropriate response. Indeed, someone who did not 20

There is No Dilemma of Dirty Hands 21

feel anguish and regret in such situations would hardly count as a moral agent. But in so acting, or in condoning such acts, such an agent is not guilty of wrongdoing. He has (pace Michael Walzer) committed no moral crime, though, psychologically speaking, it is perhaps inevitable that he will feel guilty.3 But to feel guilty is not necessarily to be guilty. Plenty of people feel guilty without being guilty, and plenty of others are guilty without feeling guilty. The connection is a contingent one. Where our choice is inescapably a choice between evils – where there is no third possibility – we should, as responsible moral and political agents, batten down the hatches and try to do the lesser evil. Jean-Paul Sartre’s character Hoederer, in the play Dirty Hands, is exemplary: a paradigm of what a morally committed political agent should be in the world in which he finds himself. To try to wash one’s hands, Pontius Pilate-like, of a dirty hands situation – to say, ‘It is none of my business, my hands are clean’, where some choice on our part might make a difference – is impossible. We do not escape responsibility by so acting. Failing to act in such a circumstance is itself an action. By so refraining, we dirty our hands just as much as, and perhaps more than, a person who acts resolutely to achieve the lesser evil, though in doing so he does horrible things. It is a conceptual confusion with unfortunate moral residues to describe the problem of dirty hands as Nagel, Walzer and Williams do.4 They start out on what seems to me to be the right track by contending that even when our political ends are the noblest of ends, it is sometimes true that, to succeed in politics, political leaders, and frequently others as well, must get their hands dirty. That is, they will have to do things, or condone the doing of things, which in normal circumstances at least would be utterly morally impermissible. Moreover, it is sometimes right to try to succeed even in those circumstances and thus it must be right in those circumstances to get our hands dirty. Not to do so would be irresponsible and immoral, or at least a not inconsiderable moral failing, on the part of those political actors. Walzer et al. get off track, I shall argue, when they maintain that we are caught in a paradox here. This very paradox, they take it, is the problem of dirty hands. Walzer puts it thus: Sometimes it is right to try to succeed, and then it must be right to get one’s hands dirty. But one’s hands get dirty from doing what it is wrong to do. And how can it be wrong to do what is right? Or, how can we get our hands dirty by doing what we ought to do?5

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In certain circumstances – Hoederer-like circumstances – political agents, Walzer has it, must do wrong to do right. But that is, if not a contradiction, at least a paradox. It would seem that one cannot logically do what is right by doing what is wrong. However, this – or so at least I shall argue – is a mistaken way to conceptualize things. Where whatever we do or fail to do leads to the occurrence of evil or sustains it, we do not do wrong by doing the lesser evil. Indeed, we do what, everything considered, is the right thing to do: the thing we ought – through and through ought – in this circumstance to do. In doing what we ought to do, we cannot (pace Walzer et al.) do wrong. We may do things that in normal circumstances would be horribly wrong, but in these circumstances of dirty hands, they are not, everything considered, wrong. It is difficult enough in such situations to ascertain what the lesser evil is and to steel ourselves to do it without adding insult to injury by making, artificially and confusedly, a conceptual and moral dilemma out of it as well.

II It is a mistake to say that this is just the same old utilitarianism again and that, as we all know very well, utilitarianism is mistaken: a thoroughly inadequate moral and normative political theory. We cannot use that to dismiss the way I am arguing about dirty hands. In the contexts described, the above conception of always doing the lesser evil is, of course, compatible with utilitarianism, but does not require it. However, it may require, or at least its clear articulation will be facilitated by, what (following Brian Barry) I have characterized as weak consequentialism.6 But this view is compatible with accepting, as I do and as Barry does as well, a roughly Rawlsian conception of justice as fairness, where in addition to Pareto optimality an independent principle of just distribution is required for the structuring of our institutions, if they are to be morally acceptable institutions. Unlike Rawls, I am not saying that, morally speaking, considerations of justice always override considerations of utility.7 Normally they do, but again in certain extreme situations they do not. We should not – morally should not – Michael Kohlhaas-style, do justice though the heavens fall.8 However, what I am committed to denying, with such a conception, is that there are any absolute side-constraints that, where they apply, must always determine what we are to do, no matter what the consequences. The serious moral and political problem over dirty hands is not over some trumped-up moral dilemma rooted in conceptual confu-

There is No Dilemma of Dirty Hands 23

sion, and perhaps even in moral evasiveness as well. It is over whether moral agents acting in the political sphere, including sensitive and aware moral agents, who have taken Machiavelli’s lessons to heart, should always try to do the lesser evil in inescapably dirty hands situations, or whether instead they should follow Leszek Kolakowski, and a host of others, in believing that we must always stick with putatively absolute side-constraints, no matter what.9 I shall argue, against Kolakowskian absolutism, that that is not the way to have clean hands. It is, rather, a way of evasively and irresponsibly dirtying our hands even more than we would by resolutely and intelligently seeking, in such circumstances, to do or assent to the lesser evil. In many, perhaps most, circumstances, we cannot ascertain what the lesser evil is and, in such circumstances, we should be morally conservative. This is particularly evident where it is possible not to act in such a circumstance: where inaction is not itself a form of action. There, we should not do things which in normal circumstances would plainly be horrendous. Where doing nothing is possible (and not, in effect, taking a side on the issue in question), and where doing what we only have a hunch is the lesser evil would mean doing something horrendous, then we should do nothing. In such a circumstance, we should not risk doing something that normally is an unquestionably evil thing to do. In that respect, and in that context, moral conservatism is a good thing. Similarly, where the foreseen consequences of our proposed actions or policies are opaque, and careful reasoning and investigation will not make them tolerably clear, then we should, in most circumstances, stick with the normal moral verities, that is, our firmest considered convictions. But the probable consequences are not always that opaque. More crucially, even where they are, if it is also evident enough that we will do considerable evil no matter what we do or fail to do, then we should act on our best hunches about where the lesser evil lies, even when our best hunches are not very good. Where so acting is a moral necessity, moral action is traumatic. There is no escaping anxiety and anguish here. This, in some circumstances, is just what the moral life is like. But to try to do nothing – as understandable as it is – is, in most circumstances of this sort, deeply morally evasive. There is the problem of how much we can expect from human beings: it is not reasonable to expect people to be saints or heroes or to try to make this a requirement for the status of moral agency. But people who can and do so act are morally admirable. Their actions are often so supererogatory that we can hardly say of others that they ought to so act, let alone

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that they must so act. That is both morally sanctimonious and unreasonable. But that does not gainsay the fact that each of us, when we reflect on what we as individuals should do in such situations, will, if we are reasonably clear-headed, hold that this is what we should ideally do, if only we can summon up enough courage. Some of Sartre’s and Brecht’s moral heroes are persons who, though not without anguish and regret, act resolutely in dirty hands circumstances. I think, if we carefully reflect on what morality is, they will be our heroes and our exemplars too, even where we do not share their background politics.

III It might be thought that I am begging questions and sweeping things under the rug with my conception of the lesser evil. I am assuming implicitly, it might be argued, that the lesser evil is what results in the least harm (fewer deaths, less misery or pain, less undermining of selfrespect, autonomy, security, and the like). But, the objection will continue, the ‘lesser evil’ may not be that, but the not-doing of such plain moral evils as, for example, not violating someone’s rights, not administering unjust laws, not taking (let alone shooting) hostages, not refusing to take prisoners, not lying, and the like. Where any of the rights violations that go with the doing of these forbidden things occur, we have a greater evil than if they do not. Suffering and misery are bad, but rights violations are even worse. It seems to me that this is an implausible response. Sometimes violating someone’s rights may avert a catastrophe. In this case, it seems to me, these rights should be violated. There are other sorts of examples that drive home my point. Even when, under the Nazis, it became apparent that he would be required to administer abhorrent racial laws, a German judge, appointed during the Weimar Republic, might rightly have not resigned. He might have stayed because he realized that, by applying these vile laws in a discriminatory way, he might very well be able to save lives that would not have been saved if he had been replaced by a Nazi supporter. To move to a different example, shooting a hostage and threatening to shoot others might prevent the sacking and shooting of a whole village, or at least give the villagers time to flee. (Remember the comments of Brecht, as well as Marx, on the Paris Commune.) It seems to me that there is no serious question where the lesser evil lies in situations where one might violate someone’s rights to prevent a massacre. The violation of one person’s

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rights here is plainly a lesser evil. It is blind rights worship or rule worship not to see that.

IV The view I take here, as I remarked, is compatible with utilitarianism but does not require it, for it is also compatible with a pluralistic deontological view of the familiar and sophisticated sort set forth by W. D. Ross and C. D. Broad. For these thinkers we start with a collection of familiar prima facie duties. These duties are just that: prima facie. They not infrequently conflict with each other, and we must determine in the particular situation in question which of these conflicting prima facie duties is our actual duty. There is, for such deontologists, no overriding moral rule or moral principle – no categorical imperative, no lexical ordering prima facie duties – which will tell us in any situation what we must do. They, like utilitarians, do not appeal to any absolute moral prohibitions that we must always act in accordance with come what may. My account, however, is incompatible with Kant’s absolutism about particular moral principles, or Elizabeth Anscombe’s and Alan Donagan’s Christian absolutism, which maintains that there are some particular things that must never be done, no matter how much evil results from our not doing them.10 But in rejecting such absolutism, I am not saying anything that for us now is at all iconoclastic or even unusual. Williams, Walzer and Nagel no more accept such an absolutism than do I. But I am trying to think through such a nonabsolutism consistently, while still starting, as they do, with our considered convictions, and continuing to take them seriously – realizing that they are as close as we can get to a rock-bottom court of appeal in moral deliberation.

V In so reasoning, I utilize the justificatory method of an appeal to our considered judgements in wide reflective equilibrium (a thoroughly holistic form of coherentism), and I appeal consistently with that coherentism to consequences.11 But my consequentialism is, as I remarked, a weak consequentialism; it does not commit me to utilitananism. I shall now, expanding on what I have said elsewhere, briefly explain my consequentialism. As we have seen, absolutism has it that there are certain things that we must never do no matter what the consequences of not doing these

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things are. It will forbid certain kinds of actions, even if they produce less overall harm than the other alternatives. Torturing someone, for example, can never be justified on such an account. My weak consequentialism, by contrast, neither affirms nor denies that sometimes an individual may rightly refrain from doing that which will have, or may be reasonably expected to have, the best overall consequences, everything considered. I do not (pace G. E. Moore) argue that we have a duty to try to produce or secure the greatest overall good; I do not argue that we have a duty or an obligation to do our best to achieve either the greatest average utility in the world or the greatest total utility. I refrain, as contemporary utilitarians do not, from making such strong claims. Weak consequentialism is most usefully seen as a negative doctrine that denies (pace Anscombe and Donagan) that it is possible to specify a list of act-descriptions which, in terms of their very nature, can be recognized in all circumstances to be the wrong thing to do, where the wrong in question is an everything-considered wrong. My weak consequentialism rejects such absolutism and asserts, rather, that it all depends. Acts of a kind which we are inclined to believe would always be wrong (wrong everything considered) might very well not be if the circumstances were altered and the consequences were very different from how they usually are. There are no acts, such as consequentialism avows, that we can rightly say never should be done without taking into consideration their circumstances and consequences. And with such consideration of circumstances and consequences, our judgements concerning whether they can be rightly be done in some particular circumstances may shift. ‘Weak consequentialists’, as Barry puts it, ‘hold that there is no class of cases, definable in advance, such that the consequences are never relevant to the question of what is the right thing to do.’12 By contrast, strong consequentialism holds that there is at all times a duty to act so as to maximize the amount of good in the world. More generally, consequentialism, both weak and strong, should be conceptualized as follows: the morality of any action is to be judged by its consequences, or in part by its consequences, and not just, or perhaps not even at all, by what the action is apart from its consequences. Weak consequentialism takes the two weaker alternatives in the above characterization; strong consequentialism the stronger alternatives. Both deny that there are any actions that, simply by virtue of what they are, regardless of their consequences, their circumstances and their relations to other actions, must be done or avoided sans phrase.

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Pace absolutism, there can be no justified categorical denials of permission to act to avoid the lesser evil. There are no such categorical prescriptivities which are justified. My defence of doing the lesser evil in dirty hands situations even when that evil is very considerable indeed cannot be defeated by arguing that my consequentialism commits me to utilitarianism, as, it is argued, any consistent consequentialism does. There can be forms of consistent non-utilitarian consequentialism.13 We can reject the inflexibility of moral absolutism without ending up in the straitjacket of utilitarianism. Still, with the type of appeal to consequences that I have defended, we can attend to important factors of context, circumstance and situation without committing ourselves to utilitarianism. We need not go from one inflexibility to another.

VI Even where the government truly represents the people (if ever that obtains), there still may be dirty work for it to do, and in such a circumstance the dirty work is ours.14 When, if ever, is it morally justified, everything considered? My answer is that it is justified where the dirty work cannot be avoided without there remaining or resulting still greater evil, everything considered, than would obtain without the government so acting. In such circumstances its ‘dirty work’ is morally justified, and so we have the scare quotes. If that situation does not obtain, then the dirty work is not justified and should not be morally condoned. This doctrine is generally thought to be both too simple and too morally insensitive to be right. It is believed to smack too much of the spirit of utilitarian calculation even if it is not strictly utilitarian. In the gloss I have given it in the preceding sections, I have tried to show that it is neither too simple, nor morally insensitive, nor committed to utilitarianism or to simple reliance on utilitarian calculation. In so arguing I am running against a rather persistent orthodoxy over the problem of dirty hands articulated in sophisticated forms in some of the writings of Nagel, Walzer and Williams, previously cited. Walzer’s ‘Political Action: the Problem of Dirty Hands’ is a particularly developed and reflective statement of such a view. I want to argue in this final section that we are not caught in the dilemma in which Walzer and others think we are caught and that he has misconceptualized the problem. Walzer believes, as does Nagel, that sometimes we must choose between two courses of action, both of which it would be wrong for us to undertake. This obtains wherever we must choose between acting in

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accordance with an important moral principle and avoiding a looming disaster. Here we have the stuff of moral tragedy. Walzer remarks that ‘a particular act of government … may be exactly the right thing to do in utilitarian terms and yet leave the man who does it guilty of a moral wrong’.15 But it becomes clear from what he later says that Walzer, like Nagel, in effect drops the above ‘in utilitarian terms’ and claims, more generally, that a particular government act or policy could be exactly the right thing for it to do tout court and yet leave the people who carry out the act or policy guilty of a grave moral wrong. It is this claim that I am resisting. For me the dirty hands dilemma, psychological anguish notwithstanding, is unreal. There are indeed problems about when to take normally unacceptable means, but there is no resulting moral or conceptual dilemma. For Walzer, Nagel and Williams, the alleged dilemma is very real. As Walzer puts it, the very ‘notion of dirty hands derives from an effort to refuse “absolutism” without denying the reality of the moral dilemma’. I want to argue that this position, psychologically attractive as it is, is incoherent. It can, in Walzer’s phrase, only ‘pile confusion upon confusion’.16 To act politically, particularly if you are a political leader, is to put yourself into a position where you might be required to do terrible things.17 Walzer works carefully with a key example – indeed, a realistic and not a desert island example – which he believes will strikingly confirm his account of how a morally committed politician can be caught in a moral dilemma in which he must do wrong to do right. I think it is a key, indeed a perfect, example for the discussion of such issues, though I shall argue that his moral dilemma account is wrong and that, in his commentary, he misdescribes and misconceptualizes what is involved. I shall first quote his own statement of his paradigm case in full, then describe his discussion and finally try to make good my claim that he misconceptualizes the matter. Consider a politician who has seized upon a national crisis – a prolonged colonial war – to reach power. He and his friends win office pledged to decolonization and peace; they are honestly committed to both, though not without some sense of the advantages of the commitment. In any case, they have no responsibility for the war; they have steadfastly opposed it. Immediately the politician goes off to the colonial capital to open negotiations with the rebels. But the capital is in the grip of a terrorist campaign, and the first decision the leader faces is this: he is asked to authorize the torture of a cap-

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tured rebel leader who knows or probably knows the location of a number of bombs hidden in apartment buildings around the city, set to go off within the next twenty-four hours. He orders the man tortured, convinced that he must do so for the sake of the people who might otherwise die in the explosions – even though he believes that torture is wrong, indeed abominable, not just sometimes but always. He had expressed this belief often and angrily during his own campaign; the rest of us took it as a sign of his goodness. How should we regard him now? (How should he regard himself?)18 Let us assume, as I take it Walzer assumes, that there was no other way of defusing the bombs or otherwise effectively cancelling their effects, that there was no other way of extracting the information from the rebel leader in time or otherwise gaining the relevant information, that the torture ordered was no more severe or prolonged than was necessary to get the information in time, and that afterwards the rebel leader was promptly and humanely cared for. Given all this, and the case as described, both Walzer and I believe that the politician should order the torture. But Walzer believes that the politician does wrong, indeed commits a moral crime, in order to do right, while I do not. Walzer remarks: When he ordered the prisoner tortured, he committed a moral crime and he accepted a moral burden. Now he is a guilty man. His willingness to acknowledge and bear (and perhaps repent and do penance for) his guilt is evidence, and it is the only evidence he can offer us, both that he is not too good for politics and that he is good enough. Here is the moral politician: It is by his dirty hands that we know him. If he were a moral man and nothing else, his hands would not be dirty: if he were a politician and nothing else, he would pretend that they were clean.19 This seems to me the wrong way to think about the case and about the morally committed politician forced by circumstances to do such a terrible thing. Walzer will have it that our conscientious and morally committed politician, in ordering torture, has committed a moral crime. This politician, if he is morally serious, will know that, and ‘he will not merely feel, he will know that he is guilty (and we will know it too), though he may also believe (and we may agree) that he has good reasons’ for so acting.20

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Let me first clear the decks by pointing to where there are important areas of agreement between Walzer and myself. The belief that torture is wrong and always wrong is something we share. I view that belief as one of our firmest and most deeply embedded considered moral convictions. It is not a conviction we are about to, or even can, abandon, if we are moral agents. We also agree that that considered conviction, and indeed any considered conviction – any deeply embedded moral principle – can be rightly overridden ‘to avoid consequences that are both imminent and almost certainly disastrous’.21 The torture case is a good example of where that condition obtains. In addition, we both believe that where the rules or principles articulating these considered convictions are rightly overridden, that overriding should be a painful process. When, in the case in question, the conscientious politician, after soul-searching, orders the torture to avoid the loss of many lives, including the lives of children, his decision to do so will still leave ‘pain behind, and should do so, even after the decision has been made’.22 He will, if he is a decent human being, feel that acutely. About all these things we agree. Where we disagree is over his claim that the man knows he has done something wrong, that he has committed a moral crime, that he is guilty, and that perhaps he should repent and do penance, fully acknowledging his guilt. He should, I agree, feel pain, anguish and regret. He should do what he can to compensate the torture victim for the dreadful harm done to him (incommensurable as it must be), show that it is something he did not want to do and, if possible, give a clear account of his actions so that the victim, if he can be clearheaded about it, will recognize that he would have done the same if their roles had been reversed. If the politician is morally sensitive, his pain over this should be a pain that will be with him the rest of his life. It is not something he will set aside as he might do a bad dream. But guilty he is not, a moral or any other kind of criminal he is not, a person who has departed from the bounds of morality or failed to reason in accordance with the moral point of view he is not. It is, in fine, a mistake to say, as Walzer does, that he has done something wrong. He was not doing something which was both right and wrong; he did something which, everything considered, was the right thing to do in that circumstance. What he did would in almost all circumstances be an utterly impermissible, indeed a heinous and vile thing to do, but in this circumstance, as Walzer himself acknowledges, it was the right thing to do. So, contra Walzer, he could not have done wrong in doing it. The best succinct way of describing the situation is to say that the politician, in ordering the torture, did something

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which in almost all circumstances would plainly be a very wrong thing to do indeed, but that in that circumstance, which was very extraordinary but still generalizable (universalizable), it was not wrong to do it but right.23 (It is, of course, always at least prima facie wrong, but it may not always be actually the wrong thing to do. And thus when that obtains, it is not the wrong thing to do,) Where the only choice is between evil and evil, it can never be wrong, and it will always be right, to choose the lesser evil. The politician in the situation described, if he is clearheaded as well as morally sensitive, will not excuse his behaviour, either implicitly or explicitly acknowledging guilt, but will be prepared to publicly justify it. Whether it is politically expedient to do so at a given time is a tactical matter and as such is another thing altogether. But it can be publicly justified and, at least in the fullness of time, it must be publicly justified. (Remember that if something cannot be publicly justified it cannot be justified at all.) Since the choice is such a revolting, morally enervating choice between evils, he will not be proud of it, but if he is clearheaded, he will be able to accept himself, recognizing that he has soldiered on and has done what, morally speaking, was the best thing to do under the circumstances. Doing it, and the memory of doing it, will not make him happy, will not give him a sense of satisfaction and certainly will not make him proud; but he will be able to hold his head up, realizing that he did what he had to do and that others in similar situations should do so as well if they are able to act on the most compelling moral considerations. With such an understanding, he can accept himself. He did not, when he made his choice, depart from the moral point of view; quite to the contrary, he steadfastly stuck with it where it is very hard indeed to stick with it.

VII Walzer is aware that a response like the above could be made. But he thinks he can set it aside because he takes it to be tied up with the acceptance of utilitarianism. He argues, not implausibly, that utilitarianism has certain evident defects which make it a problematic morality. We have already seen that the lesser evil argument, while compatible with utilitarianism, is also compatible with a Rossian-type pluralist deontology, with a weak consequentialism that makes no commitment to utilitarianism, and with my own, largely coherentist account of morality, which is similar to the justice-as-fairness conception of Rawls. (The latter conception is also compatible with weak con-

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sequentialism and, on my account, they work together hand in glove.24) It seems to me that any coherent morality will be consequence-sensitive (something I do not think Walzer would deny) and in morality we can, in some contexts, use utilitarian calculations without being utilitarians. Moreover, sometimes we not only can do it, but we should. However, while I think that it is important (perhaps even unavoidable) to appeal to consequences in the way I specified, the core of my account about dirty hands does not even require that, unless all moral reasoning requires it in some contexts. But I can leave that open here. In deciding what is the lesser evil, we could perhaps treat rules such as ‘Torture is wrong’, ‘Suffering is bad’, ‘Life should be protected’ and ‘Security should be maintained’ as being rules that hold prima facie. Moreover, they are rules which always hold, prima facie. But any one of the things they say should always prima facie obtain, be done or be avoided, should also actually be done (or obtain, or be avoided) if, on reflection, we come to appreciate that of all the various principles or rules holding prima facie and applicable in the circumstances at hand, this is the rule or principle which has the most stringent claim on us. All of them always hold prima facie (not doing them, or avoiding them, is always prima facie wrong), but they sometimes conflict. When they do, we must simply try to ‘see’ (appreciate, apprehend, intuit) which moral rule or principle has, in that situation, the strongest claim. There is, on such a Rossian account, no higher rule or principle we can appeal to and there is no lexical ordering of rules; we must just reflect and come to appreciate which claim in that particular situation is the most stringent. Thus the Rossian deontologist, in acknowledging that torture is always wrong, does not say that torture is never permissible as a necessary evil to avoid a still greater evil. We have a duty (prima facie) not to torture, but we also have a duty (prima facie) to prevent harm to others. The person saying that torture is not wrong in that situation, everything considered, need not be a utilitarian, he could be as thoroughly deontological as Ross and Broad. My account here does not have to choose between utilitarianism or other teleological views on the one hand, and deontological views on the other. What my account is incompatible with, as I have already remarked, is an absolutism such as Kolakowski’s, Anscombe’s or Donagan’s which claims that there are some specific laws, rules or principles, such as ‘Torture is always impermissible’, which must be acted in accordance with, no matter what the circumstances, no matter what the consequences, no matter what

There is No Dilemma of Dirty Hands 33

human catastrophes follow. To be consistent, such an absolutism would have to say that the politician in Walzer’s example should never have ordered or condoned torture. Let the bombs go off, if they have to, and let many people be killed if there is no other way to prevent the bombs going off except by recourse to torture. That fierce absolutism is not Walzer’s, Williams’ or Nagel’s position any more than it is mine. But it would take the establishment of such an absolutism to undermine my argument that in this situation – and it is a good paradigm for the dirty hands problem – it is a mistake to say that our politician has done something wrong, committed a moral crime, in ordering torture to achieve what is plainly right. According to such an absolutism, his ordering torture is absolutely morally impermissible, and is thus a moral crime. Such a moralist might even describe it as morally monstrous. However, such an absolutist, to be consistent, must agree with me that there is no moral dilemma of dirty hands, for, unlike Walzer, he will not accept that we can do right by using such an absolutely and categorically forbidden means. The politician, on this view, cannot rightly so act. But there is nothing for him to be in a dilemma about, though he will not infrequently be anguished by the consequences of his absolutism. Indeed, to the extent that he has much in the way of moral awareness, he will have to be anguished. Such absolutists are often Christians and, as Kierkegaard stressed, it is not easy to be a Christian. There were very few Christians of this type in what was then Christian Denmark.

VIII Let me return to Walzer’s argument from a somewhat different perspective. Whatever may be true for utilitarians, I do not take moral rules or moral principles as mere rules of thumb or guidelines to be used in trying to calculate what we should do. Moral rules are very often, as Walzer observes and as we both believe, prohibitions on our acting which none the less may be overridden in the ways we have discussed. But we also agree that in their being overridden, ‘we do not talk or act as if they had been set aside, canceled, of annulled. They still stand …’25 However, in certain circumstances they can still be overridden by another rule or principle which takes precedent over them in that situation, or by the fact that the consequences of following the rule in that situation would be disastrous. However, this does not make moral rules mere guidelines, and some of the more deeply embedded ones in our moral life, such as prohibitions

34 Kai Nielsen

against killing or torture, are not annulled or cancelled even when they are rightly overridden. ‘Moral life,’ as Walzer says, is a social phenomenon and it is constituted at least in part by rules, the knowing of which (and perhaps the making of which) we share with our fellows. The experience of coming up against these rules, challenging their prohibitions, and then explaining ourselves to other men and women is so common and so obviously important that no account of moral decision-making can possibly fail to come to grips with it.26 We have these moral rules; they are social prohibitions which partly constitute our morality. There would be no morality without them. They are just part of what it is for something to be a morality. Still, there are good reasons not to treat these rules as absolute, exceptionless prohibitions. And when we do not, we can also see how, without paradox or inconsistency, they can be rightly overridden without being annulled or set aside. When a rule in a certain circumstance is rightly overridden, it is overridden by what, in those circumstances, are more demanding moral considerations. When this obtains, the moral political agent does not do wrong to do right. Such paradox-mongering is confused. Rather, he rightly and justifiably does what, but for these special circumstances, would be the wrong (indeed, in the cases we have been discussing, monstrously wrong) thing to do. This is not relativism, subjectivism or even historicism (though it is compatible with the latter), but a thorough contextualism.27 It all depends on the circumstances, and these will vary. But to say that is no more relativist, subjectivist or attitudinalist than it would be to say that in the Yukon people ought to have very warm clothes, but there is no good reason for people to have them in the Amazon. What determines the shift in judgement about what is appropriate or inappropriate, or about what is right or wrong, in these cases is the objective situation itself and not the feelings, attitudes, cultural set or perspective of the people involved. ‘It all depends’ and ‘All is relative’ are very different things. The importance of circumstance and context is vital. We are not likely to have very useful general rules for determining what is the lesser evil in any complicated case where there is a live moral issue. Philosophical generalizations are more or less useless here. But careful concrete attention to the situation will sometimes give us a good understanding of what is the lesser evil in particular cases, though at other times we simply have to act in the dark. Sometimes we should take hard means (including

There is No Dilemma of Dirty Hands 35

means that are normally morally impermissible) to achieve morally imperative ends, but we will have very little in the way of general formula telling us when this is so. The formula ‘Always do or support the lesser evil, when it is necessary to choose between evils’ does not tell us very much. It is important not to lose sight of the maxim ‘It all depends’, while also keeping in mind that there are repetitive patterns in the problems of human life. When we know that there are several evils, not all of which can be avoided, we should always go for the lesser evil, but what the lesser evil is can only be determined on the scene and contextually.28

IX What, in its most morally demanding form, is the problem of dirty hands? Dirty work goes on in the world (and not only in politics), and the ‘foundations of kindliness,’ to use Brecht’s phrase, do not seem to be anywhere in sight. Maybe such a notion is like ‘pie in the sky, by and by’. The problem of dirty hands in its most pressing form is this: when, if ever, are we justified in using what would in normal circumstances clearly be a morally impermissible means to achieve what is clearly a morally demanding end? The answer is that we are justified when 1) evil (e.g. killing, destruction, misery, oppression, suffering, and the like) is inescapable, and 2) we have good grounds for believing that in such circumstances using what are normally morally impermissible means will make for less evil in the world – and not taking those means would, most likely, plainly and immediately lead to greater evil (e.g. more deaths, destruction, misery, etc.) than would obtain from taking them. When these conditions obtain (something which may be very difficult to ascertain) we should use the otherwise impermissible means. It is in such circumstances that morality enjoins seizing the day and taking measures that otherwise would be totally unacceptable. This is not romanticism but moral non-evasiveness. There are no categorical prescriptions built into nature, including human nature, or substantive ones built into our choosing selves, whether our choices are rational, non-rational or irrational. In morality, it all depends.

Acknowledgement First published as Kai Nielsen, ‘There is No Dilemma of Dirty Hands’, South African Journal of Philosophy, vol. 15 (1996), no. 1, pp. 1–7. Reprinted by permission.

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Notes 1 See Kai Nielsen, ‘Rights and Consequences: It All Depends’, Canadian Journal of Law and Society 15 (1996), and ‘Philosophy within the Limits of Wide Reflective Equilibrium Alone’, Iyyun: The Jerusalem Philosophical Quarterly 43 (1994). 2 See Nielsen, ‘Rights and Consequences’. 3 Michael Walzer, ‘Political Action: The Problem of Dirty Hands’, Philosophy and Public Affairs 2 (1972/73), pp. 169–80. 4 Bernard Williams, ‘A Critique of Utilitarianism’, in J. J. C. Smart and Bernard Williams, Utilitarianism: For and Against, Cambridge: Cambridge University Press, 1973; Walzer, ‘Political Action’; and Thomas Nagel, Moral Questions, New York: Cambridge University Press, 1979, pp. 53–90, 128–41. 5 Walzer, ‘Political Action’, p. 164. 6 Brian Barry, Liberty and Justice, Oxford: Clarendon Press, 1991, pp. 40–77. 7 Kai Nielsen, Equality and Liberty: A Defense of Radical Egalitarianism, Totowa, NJ: Rowman & Allanheld, 1985, and ‘Rights and Consequences’. 8 See Heinrich von Kleist, Michael Kohlhaas, New York: The New American Library, 1960. 9 Kai Nielsen, ‘On the Ethics of Revolution’, Radical Philosophy 9 (1973), and ‘Violence and Terrorism: Its Uses and Abuses’, in Burton M. Leiser (ed.), Values in Conflict, New York: Macmillan, 1981. 10 G. E. M. Anscombe, Ethics, Religion and Politics, Minneapolis: University of Minnesota Press, 1981, and Alan Donagan, The Theory of Morality, Chicago: The University of Chicago Press, 1997. For a response, see Kai Nielsen, Ethics without God, rev. edn., Buffalo, NY: Prometheus Books, 1990, pp. 128–62. 11 See Nielsen, ‘Philosophy within the Limits’, and ‘Rights and Consequences’. 12 Barry, Liberty and Justice, p. 76. 13 R. Miller, ‘Marx and Aristotle: A Kind of Consequentialism’, in Kai Nielsen and S. C. Patton (eds.), Marx and Morality, Guelph, ON: Canadian Association for Publishing in Philosophy, 1981; Barry, Liberty and Justice, pp. 40–70. 14 Martin Hollis, ‘Dirty Hands’, British Journal of Political Science 12 (1982). 15 Walzer, ‘Politcial Action’, p. 161. 16 Walzer, Politcial Action’, p. 162. 17 Walzer, Politcial Action’, p. 165. 18 Walzer, Politcial Action’, pp. 166–7. 19 Walzer, Politcial Action’, pp. 167–8. 20 Walzer, Politcial Action’, p. 174. 21 Walzer, Politcial Action’, p. 171. 22 Walzer, Politcial Action’, p. 174. 23 Nielsen, ‘Universalizability and the Commitment to Impartiality’, in Kai Nielsen, Nelson Potter and Mark Timmons (eds.), Morality and Universality, Dordrecht: Reidel, 1985, and ‘Justice, Equality and Needs’, Dalhousie Review 69 (1989). 24 Nielsen, ‘Rights and Consequences’. 25 Walzer, Politcial Action’, p. 160. 26 Walzer, Politcial Action’, p. 160.

There is No Dilemma of Dirty Hands 37 27 Kai Nielsen, Naturalism without Foundations, Buffalo, NY: Prometheus Books, 1996, ch. 1. 28 It might be thought that I am in a pragmatic self-contradiction here. I deny that there are any unconditional categorical prescriptives, but is not ‘Choose the lesser evil’ just such an unconditional categorical prescriptive? It is not, because, like ‘Do good and avoid evil,’ it is an empty formal ‘principle’ that does not, by itself, guide conduct. Where we give ‘evil’ content so that the above maxim, so supplemented, can guide conduct, we get something that is neither unconditional nor certain. That such and such is evil can perhaps always be coherently challenged. At least there never will be a contradiction in denying that so and so is evil. Unconditionality and certainty are bought at the price of emptiness. I do not say that we can prove this must be so, but I do say that when we look at how things go, including how our language-games are played, that is what we find. There is no pragmatic self-contradiction here. I am not taking a transcendental stance to prove that nothing can be transcendental. For a useful collection of contemporary essays on absolutism and its consequentialist critics, see Joram Graf Haber (ed.), Absolutism and its Consequentialist Critics, Lanham, MD: Rowman & Littlefield, 1994.

3 Punishing the Dirty Neil Levy

In his famous paper on dirty hands, Michael Walzer makes a strange claim: when someone performs a dirty, but justified, action, ‘we must make sure he pays the price’.1 Interpreting this claim is, as we shall see, somewhat difficult. One natural interpretation, for which other elements of Walzer’s paper provide support, is that the dirty ought to be punished.2 If that is indeed the claim, it is false, as I will show. No one is blameworthy for genuine dirty-handed acts (unless they are blameworthy for bringing about the circumstances which necessitate such actions), and therefore no one deserves to be punished for performing them. Nor, I suggest, do they deserve even the milder form of punishment that consists in dishonouring them. Responsibility for dirtyhanded acts – which is a necessary, but far from sufficient, condition of blameworthiness for them – is widely distributed. In a well-functioning democracy, citizens share responsibility for such acts; whatever blame or praise is deserved on their basis should also be shared, and punishing the dirty, however mild the form it takes, prevents us acknowledging the extent to which responsibility for dirty actions is widespread. I begin with some terminology. First, I shall restrict my use of ‘dirty hands’ to cases in which agents perform actions which seem to them to be all-things-considered justified.3 Dirty hands actions are not corrupt or self-serving.4 Nevertheless, dirty hands actions are, somehow, very wrong and remain so despite the fact that they are justified. The wrongness in question is more than prima facie or pro tanto; it is not a defeasible wrongness that is defeated in the circumstances. Instead, it is a categorical wrongness, which retains its force even when it is outweighed or overridden. It leaves a ‘moral remainder’, as Bernard Williams puts it,5 even after it has been taken into account as a reason against performing an action and found 38

Punishing the Dirty 39

insufficient.6 Dirty hands cases are not moral dilemmas. They share with the latter the fact that agents confronting them cannot avoid wrongdoing, since both or all alternatives involve moral violations. But in a moral dilemma the conflicting considerations are more or less evenly weighted. In a dirty hands case, by contrast, the correct course of action is clear. Nevertheless, pursuing it remains somehow wrong. An example will help make this clearer. It is prima facie wrong to cause great pain to an innocent human being, but this prima facie wrongness is sometimes defeated. For instance, it is not a dirty act to perform emergency surgery on someone without anaesthetic in order to save their life (even, sometimes, against their clearly expressed will). The wrongness has not merely been outweighed, on this occasion and in these circumstances it simply disappears, even though the act retains many of its original wrong-making features, such as the suffering inflicted. Prima facie wrong is defeasible wrong; it vanishes when defeated. But categorical wrong remains wrong, even when outweighed. It is categorically wrong to torture an innocent person for the benefit of others. If the benefit is great enough, and the costs of refraining from the wrong acts catastrophic enough, then the torture might be justified. Nevertheless it remains wrong, and we get our hands dirty when we engage in it. Agents get their hands dirty, therefore, when they perform an action that is categorically wrong but justified. Paradigm dirty hands actions involve rights violations which are nevertheless justified on consequentialist grounds, though (depending on one’s account of rights) there may be categorical wrongness in violating certain duties which do not correlate with any rights (for instance, if a politician finds herself in a situation in which it is necessary to deceive the electorate on a matter of public importance, she violates her duty towards them, but plausibly does not violate any rights). In any case, paradigm dirty hands are the product of agents violating deontic constraints for consequentialist reasons. Whether this is a necessary condition for dirty hands is a difficult question. It may be that we can get dirty hands when we find ourselves violating one deontic constraint for the sake of another; for instance, when we tell a lie in order to save a life. Politics, however, is the natural home of the consequentialist consideration, since politics is almost by definition concerned with the good of the many. We can therefore confine our attention, in this context, to the deontic/consequentialist conflict.7 It may be seen that even if there are dirty hands actions which do not arise as a result of a conflict between rights and consequences,

40 Neil Levy

dirty hands are possible only on some accounts of the nature of morality. There are no dirty hands, for instance, if one or other of the more familiar forms of consequentialism turn out to be true: if the right action is the action that maximizes preference satisfaction or happiness, for instance. On these accounts, there are no dirty hands actions because the right action leaves no moral remainder, though the agent who violates a commonly accepted rule may feel as though she has done wrong. Nor are there any dirty hands actions if an absolutist kind of deontology is correct: if it is always absolutely impermissible to violate rights. On such a view, there are no dirty hands actions because such an action is simply wrong: not wrong and (somehow) right, as is required if there are to be dirty hands. Some forms of moral particularism seem to rule out dirty hands as well. However, most of us recognize the pull of deontological and consequentialist considerations, and other moral considerations besides; for us, dirty hands is not merely a theoretical possibility, but an all-too-real feature of everyday life. A second piece of terminology: we must distinguish between, on the one hand, first-person ascriptions of responsibility, and, on the other, second- and third-person ascriptions. As we shall see, the conditions for second- and third-person ascriptions of responsibility are much more stringent than those for first-person ascription. To ascribe responsibility to oneself or to another is to take the reactive attitudes towards them to be rationally justified.8 The reactive attitudes associated with first-person ascriptions of responsibility are guilt, shame and pride; those associated with second- and third-person judgements of responsibility are blame, indignation and resentment, on the one hand, and praise and gratitude (among others) on the other. With these distinctions in hand, we can finally make a start on interpreting Walzer’s claim. As we saw, Walzer claims we must ensure that those with dirty hands ‘pay the price’. What is the nature of the price? And why ought such agents to pay it?

Punishment As mentioned above, it is natural to interpret Walzer’s claim as the claim that the dirty ought to be punished. Supporting this interpretation is Walzer’s further claim that if the moral rules were ‘enforced’ against the dirty, ‘dirty hands would be no problem’.9 Why might we think that the dirty ought to be punished? Two possible reasons are suggested by a reading of Walzer’s text: because they deserve it, and because of the good consequences that might arise. Let us consider these in reverse order.

Punishing the Dirty 41

On some views, it is possible, and even sometimes desirable, to punish agents independently of whether they deserve it. Indeed, on some views agents never deserve punishment, because the very notion of desert is nonsensical. On these views, punishment does not entail blame. Instead, punishment should be understood behaviourally, as it were: X punishes Y if X treats Y in certain ways, ways that can be specified without reference to the mental states of X. To punish is to deprive freedom, or to inflict pain, or something similar. Some consequentialists advance accounts of punishment along these lines. Some go even further, and argue that the justification for punishment is independent of the causal responsibility of Y for illegal or immoral acts. Nothing in Walzer’s work suggests that he would go so far; only agents who are causally responsible for dirty-handed actions are in question here. Nevertheless, it may be that some kind of behaviouristic understanding of punishment is at issue in his text. There is some indirect evidence that this is what is intended, in the form of the reasons Walzer advances for the necessity of the punishment. In a fashion somewhat redolent of rule-utilitarianism, Walzer stresses the importance of ensuring that the rules that govern our behaviour are held to be inviolable, even though (as the dirty action itself proves) there are rare occasions when particular agents do better to break them. Since we want to ensure that rule violations are rare (on the hypothesis that the set of rules in place is the best available, and that in the actual circumstances in which we act, they almost always produce the best consequences) we need to take steps to strengthen them in the minds of citizens and the laws of society. Acknowledging that violations of these rules are sometimes justified would risk weakening them. In addition, Walzer argues, we ensure that politicians take the rules very seriously when we warn them that they will be punished for rule violations, no matter what the justification for the violation. Thus we minimize the number of rules violations, and ensure that such transgressions take place only when the agent is certain that the need is pressing and no other practicable means of avoiding disaster are available. We raise the moral stakes, for potential dirty hands agents, and thereby ‘ensure that the rules [are] rightly valued’.10 If the justification is consequentialist, however, then Walzer’s claim is vulnerable to attack upon the same consequentialist grounds. Suppose you are a politician confronting a difficult decision. Will the knowledge that you will be punished if you choose one of the options really help you choose it, if it is appropriate that you do so? Might it not rather cause you to shy away from it? Perhaps the very wisest leaders will

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choose the best option, even when they know they will be punished for it. But the wisest leaders do not need to concentrate their minds on the moral seriousness of what they do by the prospect of punishment (they are too wise to need such external promptings). It might be objected that we cannot realistically hope to be governed by the very wisest, and we do better to put in place systems which encourage lesser beings to do the right thing. Perhaps the second wisest leaders do, or might, need the mind-concentrating power of the prospect of punishment to help them make the right decision. But who is to say that the politicians faced with dirty hands choices are usually the second-best? They may often be much worse than that, and the third, or the fourth, or whatever it might be, wisest might be dissuaded from doing the right thing by fear of punishment. Indeed, fear of punishment for doing the right thing might deter the wiser from entering politics at all. I do not mean any of these points to be decisive. We are here on empirical ground, and the claims I make are themselves open to empirical rebuttal. The point, rather, is that if punishment is to be justified on consequentialist grounds, a great deal more argument, as well as a lot of empirical evidence, are required before we conclude that Walzer’s claim is right. Since Walzer makes no attempt to provide this kind of evidence, his claim that dirty hands actions should be punished – if it is indeed supposed to rest upon consequentialist grounds – is unjustified. In any case, if Walzer really intends to advance a consequentialist argument to the effect that agents who violate certain moral rules should be punished, independent of their desert, he seems, on pain of inconsistency, to commit himself to a wider consequentialism. If he believes that punishment is justified whenever failure to punish risks serious adverse consequences, then he has adopted such a wider consequentialism. But if he has adopted such a consequentialism, he has dissolved the problem of dirty hands. It is simply not the case that the dirty do wrong, if consequentialism of the kind canvassed is true. Since Walzer believes that dirty hands are a genuine problem, it is unlikely that he intends consequentialist considerations to carry the kind of weight needed to make sense of punishment as it is here understood.11 Perhaps, then, Walzer intends ‘punishment’ to be understood in a more retributivist manner, according to which punishment is, inter alia, an expression of the reactive attitudes, and its target are those who genuinely deserve it. On this view, agents with dirty hands are not (merely) appropriately punished; they are also appropriately blamed.

Punishing the Dirty 43

Much of Walzer’s text strongly suggests that punishment is deserved in dirty hands cases: the dirty hands agent has ‘committed a moral crime’ and ought, ideally, to be punished, not out of pity or for therapeutic reasons, but ‘for the same reasons we punish anyone else’.12 Walzer obviously believes that when we punish a dirty-handed agent, we express (some) of our complex attitudes towards him. In an ideal world, he says, ‘we would honor him for the good he has done and we would punish him for the bad he has done’.13 Passages like this suggest that he understands punishment in the retributivist manner: as the expression of justified reactive attitudes towards a wrongdoer. Thus, his claim that dirty hands agents should be punished is true only if they deserve such treatments. Unfortunately, the suggestion that we ought to punish dirty hands agents, where punishment is understood in this manner, is immoral as well as probably incoherent. I will take these claims in reverse order. The claim that we ought to punish the dirty hands agent is probably incoherent because (assuming that Walzer is right to say that we ought to blame her) our attitudes towards her are too complex to find expression in punishment. As Walzer says, we honour her as well as blame her. But what kind of treatment expresses this combination of attitudes? What punishment is also an expression of our honouring attitude? It is helpful to distinguish here between first-person and second- and third-person attitudes once more. An agent may feel that their honour is restored or affirmed when they undergo punishment. But we do not therefore express our approbation of the agent in punishing her, even if we do it in part to restore her honour. Retributivists, it is true, sometimes claim that punishment is owed to the guilty, because only by punishing her do we acknowledge that her crime was an expression of her autonomous will, and therefore recognize her as an agent. Moreover, only by punishing her do we offer her the chance of reintegrating into the moral community. So punishment is not incompatible with respect for its target. However, the respect expressed by punishment is the respect we owe to a moral agent who has violated a moral law without justification. I simply cannot see how to express the honour owed to the person who has justifiably and with deep regret violated a moral law by punishing her. If it is true that ordinary punishment always expresses our respect for the autonomy of the punished, then something more than ordinary punishment is needed here. We do not simply respect the dirty hands agent and hold out the hope that she is not irredeemable but can work toward re-entering the

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moral community. In addition to respecting her autonomy, as we do that of all ordinary criminals, we also honour her for her actions. We need, therefore, to find a method of punishing her which expresses this complex of attitudes: honour and gratitude, as well as blame and indignation. It is difficult, to say the least, to see how we can express this complex of attitudes through punishment. For punishment seems to sacrifice the expression of our positive attitudes in favour of our negative. But if we can only express one set of attitudes, then why not go the other way instead? If punishment is deserved, then so is praise; if we can do only one, and each is equally deserved, then we might just as well praise as punish. Punishing the dirty, if understood retributively, is probably incoherent. More importantly, it is also immoral. Punishment, understood as I have urged, ought to be meted out to those who deserve it. An agent deserves to be punished only when she has acted wrongly without excuse or justification. But the dirty-handed agent did not (by hypothesis) act wrongly without excuse or justification (unless certain additional complicating conditions are met).14 Instead, she found herself in a situation which required an extremely difficult choice, and she made the right choice in the circumstances. It seems that she deserves praise much more than blame. But that is just to say that negative secondand third-person reactive attitudes toward her, the attitudes that justify punishment, are not appropriate. Indeed, Walzer himself seems to acknowledge as much, at least implicitly. He concludes his article by urging us to make sure that the dirty-handed agent pays the price. But, he adds, we cannot do that ‘without getting our own hands dirty’.15 Now, agents get their hands dirty only when they perform actions which, though all-things-considered justified (usually, perhaps always, on consequentialist grounds) are nevertheless ordinarily very wrong, and which remain categorically wrong, even when they are necessary. If we get dirty hands in punishing the dirty-handed agent, then it must be the case that it is categorically wrong to punish her. But it is never categorically wrong to punish someone who is actually guilty of serious wrongdoing. It follows that the dirty-handed agent is not guilty of serious wrongdoing. Indeed, she is not blameworthy at all. But why is the dirty-handed agent not guilty of wrongdoing, so that we get dirty hands if we punish her? In general, agents are blameworthy for an action just in case there is some alternative act or omission available to them which would have allowed them to avoid blame.16 If

Punishing the Dirty 45

dirty-handed actors are blameworthy, then it must be the case that there is some act or omission available to them that would allow them to avoid blame. Now, suppose Walzer were right in thinking that the dirty-handed agent is blameworthy for performing the categorically wrong action nevertheless required of them, then it must be the case that they could have escaped blame by omitting that action or by performing an alternative. However, the distinctive feature of dirty hands cases is that this is false. Agents in these situations are justified in choosing the categorically wrong act because all alternatives would be worse. If they choose a worse alternative over a better, they would be more blameworthy, not less. They therefore cannot avoid blame; by the principle of the avoidability of blame, they are therefore blameless. Of course, if the dirty-handed agent found herself in this terrible dilemma due to actions of her own which are blameworthy, then she might bear some blame for the situation itself. We are assuming that this is not the case; she did not start the war or plant the bomb, or implement repressive policies which made the war or the bombing likely, and so on. She finds herself in a dilemma not of her own making, and it is ‘too late for clean hands’, as Martin Hollis says.17 Unless we are impressed by the doctrine of double-effect, or some act/omission distinction, we can clearly see that she can no longer avoid an action that is wrong, categorically wrong. It might be objected that if we absolve the dirty-handed of blame for their action, we thereby dissolve the dirty hands problem as well. If they are not blameworthy, because they have performed the allthings-considered right action, then they have kept their hands clean. But this is not so: we can distinguish between the bad and the blameworthy. If I perform the best action in the circumstances in which I find myself, but the best action is categorically wrong, then I perform a wrong action without being blameworthy for it (as long, once again, as I am not responsible for the fact that I face such a constricted range of options). Blameworthiness regularly comes apart from wrongness, in both directions. First, people are sometimes blameworthy for performing the right action: when, for example, they perform the action in the false belief that it will harm others. Second, people often escape justified blame for performing the wrong action, not only in dirty hands cases, but also when excusable ignorance explains their wrong action (many of the wrong actions performed by those in earlier periods of history should be understood in this way).

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Dishonouring Perhaps Walzer should not be interpreted as urging that we punish the dirty at all. Certainly, he says that punishment would lead to the end of the dirty hands problem. However, he also notes that, as a matter of fact, the dirty-handed politician is rarely punished, and that ‘there are no authorities to whom we might entrust the task’.18 Perhaps, then, he means us to find ways of making the dirty ‘pay the price’ which stop short of punishment. Perhaps it is sufficient, for Walzer, that we ‘deny power and glory’ to the dirty handed.19 Why should we do this? Once again, both consequentialist and retributivist reasons suggest themselves. First, we might worry that honouring the dirty would lead to a weakening of the moral constraints which they (justifiably) violated. Second, we might think that they ought to be dishonoured because they deserve it; because they have done the wrong thing. Third, we might dishonour in order to recommit ourselves to the moral principles that have been violated. We have already seen that the retributivist argument for any kind of punishment – and dishonouring is punishment, not necessarily the least bad kind of punishment either – is very weak. The dirty are not blameworthy, and we are only retributively justified in punishing the blameworthy. Nevertheless, it may be that Walzer believes that dishonouring is justified for some combination of the first and third reasons: because dishonouring the guilty affirms and strengthens the principles they have violated. Walzer’s discussion of the treatment of Arthur (Bomber) Harris, who headed the Bomber Command of the RAF during the Second World War, suggests this kind of view. Walzer asserts that Bomber Command’s use of terror bombing went far beyond what could be justified; to that extent, his actions were not strictly dirty-handed. Suppose, however, that the bombing was justified, all things considered, as indeed its use in the earlier stages of the war may have been. Even so, Walzer suggests, it would be inappropriate to honour Harris. Churchill ought instead to have adopted a complex policy, which expresses the complex attitudes we ought to have towards the dirty, of praising ‘the courage and endurance of the fliers of Bomber Command even while insisting that it was not possible to take pride in what they had done’.20 In fact, Walzer notes, Churchill did no so such thing. Instead, he took what Walzer regards as the second-best option of disowning these men and their actions. By so doing, Walzer suggests, Churchill ‘went

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some small distance to re-establishing a commitment to the rules of war and the rights they protect’.21 Perhaps, but he did so at the cost of some unfairness to Harris and his men (especially to the latter, since they had no part in the decision-making process which led to the continuation of bombing long after it was no longer militarily necessary). Honouring the dirty is perhaps inappropriate, but dishonouring them, especially when they act on our behalf, is equally inappropriate. When we punish, even in this relatively mild manner, we get our hands somewhat dirty. In effect we sweep some of our history under the rug. But as the bloody events of the twentieth century demonstrated repeatedly, history ignored has a way of making itself felt. Our failure to confront Second World War terror bombing may have played a small part in the recurrent waves of revisionism about the war, which often flies the standard of the crime of Dresden. It is also permissible to question Walzer’s claim that the dishonouring of Harris and his men helped to restore the rules and rights they had violated. We do not restore rights by pretending they were never violated. Instead, we need to acknowledge what was done, to interrogate the justifications advanced for it and admit errors, where they exist. The dishonouring of Harris was to make him a scapegoat; it piled the burdens of responsibility on his shoulders, and ignored the dirt on the hands of the other principal actors, and the people on whose behalf they acted. Let us turn, then, to the responsibility that other people bear for the dirty hands of politicians.

Spreading the dirt It will be instructive to approach the question of others’ responsibility for dirty hands by asking another question: How long has it been too late for the dirty-handed agent to keep her hands clean? That is, what was the latest point at which she might have avoided responsibility? Several philosophers, Walzer among them, suggest that she is unlucky to find herself in this situation. She might have found herself engaged in politics in less interesting times or places – Coady suggests Monaco22 – and might therefore have been able to avoid getting her hands dirty. Or perhaps dirty hands are unavoidable in politics, in which case our dirty-handed politician could have avoided the dilemma by refusing office. Walzer seems to suggest that this is the case. For him, dirty hands are plausibly taken to be ‘a central feature of political life’, not merely a rare or occasional hazard, but even if politicians cannot avoid dirty hands, this is at least not ‘clearly true of the rest of us’.23 Perhaps

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it is always too late for the politician, but – at least if we are lucky – we can keep our own hands clean. Dirty hands are not exclusive to politics. Nevertheless , they are especially urgent and especially awful in political life; if we are lucky, we can avoid getting our hands more than a little grubby in our private lives. But what of our political lives, those of us who are private citizens? We are, after all, political animals, as Aristotle noted, whether we enter politics or not. Do we, as political animals, have clean hands? The answer depends, at least in part, on the political system. Consider, first, a political system in which power is reserved for a minority. In that case, the majority who have no share in power or in shaping the laws which govern their lives ordinarily bear no responsibility. They are therefore not responsible for the dirty-handed actions of officials, even when those actions are aimed at benefiting them. They do not exercise control over the shape of these actions, nor over the circumstances that necessitate them. In a democratic system, however, things are different. Our politicians are our agents, authorized by us to carry out policies for our benefit. Moreover, it is common knowledge that these actions are often grubby, and sometimes downright dirty. We ask them to get their hands dirty on our behalf. As Dennis Thompson notes, the fact that dirty-handed agents act on our behalf makes a difference to their responsibility. What the official does, she does ‘not only for us, but with our consent – not only in our name but on our principles’.24 We all share responsibility for dirty actions, the politicians who perform them or order them performed, and we who mandate them to take up this burden on our behalf. Since we ask her to act on our behalf, we cannot accuse her of wrongdoing when she carries out her obligations. We all share responsibility for our politicians’ dirty actions. Nevertheless, even if responsibility is shared, it is the politicians who bear the greatest burden. It is worth asking whether we, as private citizens, have a right to ask them to take it up on our behalf. It is asking a lot. It asks that they place themselves in the excruciatingly difficult position of being forced to do what is categorically wrong. It may be that we wrong them when we ask them to do this for us, or at least when we require them to do it, by refusing to take the burden ourselves. Of course, we are justified in asking that someone take office and with it these burdens, justified on consequentialist grounds. As we have seen, however, the fact that an act is justified does not entail that the act is not dirty. Plausibly, we get our hands dirty when we ask others to do our dirty work for us.25

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If that is right, though, it is worth noting that it is too late for us, too, to avoid dirty hands. Our only alternative to asking others to take up the burden of office for us is to do it ourselves; that is, we avoid dirt only by getting dirty. It is not true, therefore, that the politician could have avoided dirty hands by refusing office. She would have had dirty hands in any case. It is always too late to avoid them. On the assumption that politics is inevitably dirty, no one can avoid dirty hands in a democracy.26 Dirty hands are an unavoidable fact of political life. The world has a tragic structure, we might say: given that rights conflict and resources are scarce, given that different agents and collectivities pursue goals in zero-sum games (and in other games they take, wrongly, to be zero-sum), dirty hands are, if not necessary, at least inevitable. Most of us have dirty hands, but few of us can plausibly be accused of being responsible for the fact that dirty hands are inevitable. Our hands are dirty, but we are not blameworthy for that fact. Why, then, is there a widespread tendency, on the part of philosophers and others, to think that dirty-hand agents are blameworthy? Perhaps it is as a result of a confusion of first-person reactive attitudes with second- and third-person. We have seen that the second- and third-person reactive attitudes of blame – indignation, resentment, and the like – are not justified. But what of the first-person reactive attitudes? How should the dirty-handed agent think of herself? Walzer is, I think, right to say that we expect such agents to feel guilt and shame over their actions. Indeed, we demand such first-person attitudes from our politicians; only by sincerely displaying them does she demonstrate a fitting appreciation of the significance of the wrong action she has nevertheless been required to perform. The politician who does not feel guilt takes the moral rules forbidding such wrongs too lightly. Such a person cannot be trusted not to override the rules on insufficient pretext. The good enough politician must feel guilt or shame; indeed, we expect that much of any halfway decent moral agent who has caused such a wrong. But we cannot infer, from the fact that such first-person judgments are appropriate, that second- and third-person reactive attitudes are justified. Bernard Williams has pointed out that certain sorts of first-person reactive attitudes, including guilt, are appropriate in cases of bad moral luck, in which an agent causes suffering or death through no fault of her own.27 I suggest the case of dirty hands is strictly analogous (indeed, dirty hands situations might profitably be thought of as involving bad moral luck, except for the fact that such bad luck is, I have argued, all but ubiquitous).28 Here

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too the first-person reactive attitudes are in place, but not the secondand third-person. In dirty hands cases, therefore, blame is not appropriate, and responsibility is widely distributed, at least in democracies. If our representatives employ dirty means for our benefit, and they truly have no better alternative, they are not blameworthy, any more than we are. It may even be that they are praiseworthy, not only for their dirty action, but also for having taken up the burden of political office in which such situations are all too common. In any case, we do not have the right to scapegoat them for performing the actions which we require of them. So doing prevents us from acknowledging our responsibility, and to that extent avoids a just consideration of the genuine wrongs done by us and in our name. Walzer is right to insist that we must seek a way to affirm the values that necessity forced us to ignore. We best do that by confronted the events, not by ignoring them. Society should compensate the wronged, if possible, and it should do so in the name of all those who bear responsibility for it. In the final analysis, that means all of us.

Acknowledgement This is a revised version of a paper first presented at the workshop on ‘Politics and Morality’, held in August 2004 at the Centre for Applied Philosophy and Public Ethics, University of Melbourne.

Notes 1 Michael Walzer, ‘Political Action: The Problem of Dirty Hands’, in Marshall Cohen, Thomas Nagel and Thomas Scanlon (eds), War and Moral Responsibility, Princeton, NJ: Princeton University Press, 1974, p. 82. 2 The eminent economist John Quiggin has defended precisely this claim: though urgent necessity could conceivably justify torture, nevertheless ‘it should be punished in all cases, and severely punished in nearly all cases, as a matter of public policy’. http://www.crookedtimber.org/archives/ 001841.html. 3 In this I follow most writers, including Walzer. Hollis seems to include actions which aim at legitimate ends but which are dirtier than necessary in the purview of the phrase (Martin Hollis, ‘Dirty Hands’, Reason in Action, Cambridge: Cambridge University Press, 1996). 4 At least, they are not simply self-serving; as Walzer emphasizes, those people who enter public life are often motivated, inter alia, by a concern for rewards such as honour and adulation. But if the actions in question are motivated primarily by these kinds of concerns, they will not count as dirty hands actions. Only if the actor seeks to perform the best action, as measured either by the role he or she is justifiably expected to play in the politi-

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5

6

7

8 9 10 11

12 13 14

cal process or by wider moral concerns, is the action a candidate for the status of ‘dirty’. Bernard Williams, ‘Politics and Moral Character’, in Stuart Hampshire (ed.), Public and Private Morality, Cambridge: Cambridge University Press, 1978, p. 63. Kai Nielsen (chapter 2 in this book) argues for the opposite view, holding that in dirty hands cases the wrong committed is only prima facie, and that therefore, on this occasion, is not wrong at all. According to him, this shows that there is no dilemma of dirty hands. But his argument proves too much: if it were true, then not only would there be no dilemma, there would be no dirty hands at all. One does not get one’s hands dirty by performing an act which is both justified and which leaves no remainder. Michael Ignatieff (The Lesser Evil: Political Ethics in an Age of Terror, Edinburgh: Edinburgh University Press, 2004) seems to waver between holding that dirty hands situations pit consequences against rights and holding that they pit rights against rights. His reason for occasionally suggesting the latter is that the value for the sake of which rights are currently widely curtailed in many democracies is security, but security is itself ‘a human right, and thus respect for one right might lead us to betray another’ (p. 21). I do not wish to quarrel with (or endorse) the view that security is a human right; nevertheless, the conflict here still seems to be between consequences and rights – on the one hand, we have a right to security, the respect for which we seek to maximize, and on the other a deontic constraint. In other words, Ignatieff seems to adopt here what Nozick calls a ‘utilitarianism of rights’ (Robert Nozick, Anarchy, State, and Utopia, New York: Basic Books, 1974, pp. 28–30). P. F. Strawson, ‘Freedom and Resentment’, Proceedings of the British Academy 48 (1962). Walzer, ‘Political Action’, p. 81. Walzer, ‘Political Action’, p. 82. Walzer’s occasional references to the soul of the dirty hands agent suggests a different rationale for punishment, still understood as directed against those who do not genuinely deserve it. The general idea I have in mind is this: the unfortunate politician who must get his or her hands very dirty afterwards requires that they be punished, in order for their soul to be washed of the stain upon it. Now, if this is what Walzer intends, then we could make some sense of his claim that dirty hands agents should be punished, where punishment is understood behaviourally. On this view, punishment is understood as a kind of therapeutic act. We ‘punish’ for the sake of the unfortunate agent; out of sympathy or pity, not blame or indignation. Nevertheless, since nothing less than punishment, or at least what seems to the recipient to be punishment, will wash the soul clean, we need to behave towards her as if she were really guilty. However, this interpretation makes sense only of some aspects of Walzer’s text, and leaves others inexplicable. Walzer, ‘Political Action’, pp. 69, 81. Walzer, ‘Political Action’, p. 81. For instance, if the agent is responsible for finding herself in a dirty hands situation – she funded the terrorist group that planted the bomb, for

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15 16

17 18 19 20 21 22 23 24

25

26

instance – then (ceteris paribus) she is blameworthy for something, and it may be that what she is blameworthy for includes the dirty handed act. But no such case is in question in Walzer’s article. Walzer, ‘Political Action’ p. 82. Otsuka calls this the ‘Principle of Avoidable Blame’ (Michael Otsuka, ‘Incompatibilism and the Avoidability of Blame’, Ethics 108 [1998]). Otsuka intends his principle to be a successor to the Principle of Alternative Possibilities, which, unlike the latter, would be invulnerable to arguments from Frankfurt-style cases, in which agents seem responsible for an act even though they lacked alternative possibilities due to the presence of a counterfactual intervener. See Harry Frankfurt, ‘Alternate Possibilities and Moral Responsibility’, Journal of Philosophy 66 (1969). I doubt that the Principle of Alternative Blame is Frankfurt-style counterexample proof; absent counterfactual interveners, however, the principle seems to be a necessary condition of blameworthiness. Hollis, ‘Dirty Hands’, p. 144. Walzer, ‘Political Action’, p. 81. Walzer, ‘Political Action’, p. 82. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York: Basic Books, 1977, p. 325. Walzer, Just and Unjust Wars. C. A. J. Coady, ‘Politics and the Problem of Dirty Hands’, in Peter Singer (ed.), A Companion to Ethics, Oxford: Blackwell, 1993, p. 376. Walzer, ‘Political Action’, pp. 64, 67. Dennis F. Thompson, Political Ethics and Public Office, Cambridge, MA: Harvard University Press, 1987, p. 18. Thompson nevertheless argues that for some dirty actions only their proximate agents are responsible. If an action is necessarily kept secret (like many military and some economic decisions), then though it is justified, the responsibility is the politician’s alone. This seems to me false. Clearly, if the action is simply dirty – wrong and unjustified – the politician bears the responsibility. However, if we mandate her to act in our interests, and that mandate includes an obligation to perform wrong actions when they are absolutely required, then we ought to assume consent on the part of the electorate to the dirty actions. With this implied consent comes some measure of responsibility Tom Sorrel, ‘Politics, Power and Partisanship’, in Paul Rynard and David P. Shugarman (eds.), Cruelty and Deception: The Controversy over Dirty Hands in Politics (Petersborough, Ontario: Broadview Press, 2000) seems to go further. He argues that it can be ‘morally suspect’ to refuse political office (pp. 80–1). If that is right, then those of us who delegate others to get their hands dirty may, sometimes at least, have chosen the greater evil over the lesser: we had no right to impose that burden on others when we were capable of taking it up ourselves. In that case, our hands are not merely dirty but positively filthy. Of course, the dramatic choices – to torture a terrorist to make him reveal a bomb or to imprison an innocent person to avoid terrible consequences – upon which philosophers have concentrated are very likely to arise only occasionally. However, as both Walzer and Williams point out, less dramatic but nevertheless dirty actions are part and parcel of ordinary political

Punishing the Dirty 53 life. Politicians must make deals, compromise with interests they abhor, distribute favours and neglect relationships, if they are to pursue the power to do good. If politics is not inevitably dirty, it is nevertheless always somewhat grubby. 27 Bernard Williams, ‘Moral Luck’, Moral Luck, Cambridge: Cambridge University Press, 1981. 28 Sorrell (‘Politics, Power and Partisanship’, p. 80) notes that ‘it may look as though it is bad moral luck to end up with political power’.

4 The Moral, the Personal and the Political Garrett Cullity

What is the relation between moral reasons and reasons of ‘political necessity’? Does the authority of morality extend across political decision-making; or are there ‘reasons of state’ which somehow either stand outside the reach of morality or override it, justifying actions that are morally wrong? Machiavelli’s answer to these questions was clear enough. He set it out, together with his main reason, in a famous passage: The gulf between how one should live and how one does live is so wide that a man who neglects what is actually done for what should be done learns the way to self-destruction rather than self-preservation. The fact is that a man who wants to act virtuously in every way necessarily comes to grief among many who are not virtuous.1 Machiavelli’s own brand of ‘political realism’ is one that allows that moral assessment does properly apply to political agents, but is overridden by reasons of political necessity. A politician’s actions may be morally wrong – contrary to virtue, contrary to ‘what should be done’ – and yet be justified. His view differs, therefore, from the view in political theory that moral assessment simply fails to apply to political action. In what follows, I shall maintain that such views are typically both overstated – ‘political action’ covers a broad enough range of cases that a ‘realist’ treatment of all of them does not stand a chance of being correct – and ultimately confused. Indeed, in this translation, Machiavelli’s view wears its confusion on its sleeve. If one action really is ‘what should be done’, all things considered, there is no space left for the claim that some alternative is, all things considered, justified. To be sure, we ought to consider subtler and more careful variants of 54

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the Machiavellian view.2 My claim will be that they, too, typically suffer from the same fundamental confusion – a confusion about the nature and expression of practical justification. I am not alone in thinking this.3 But the aim of this essay is to bring two new contributions to this old debate. First, I aim to show how light can be shed on the issue by examining a question that philosophers have discussed in isolation from it: the question of the relationship between moral reasons and reasons pertaining to personal well-being.4 This will give us a better appreciation of the range of available views about the relation of the moral to the political; and more importantly, it will help to explain the fundamental challenge to the idea that there could be contra-moral justification of political action. However, it will also provide us with guidance for thinking about the ways in which that challenge might be answered. We shall find that there is, after all, a case to be made for thinking that some political actions can be justified even though they remain morally wrong. And those actions are of great importance to national and international politics today.

I We need to begin with some distinctions. Discussions of the morally distinctive or problematic nature of political action have often proceeded as if ‘political action’ were a single thing and raised a single kind of moral problem. That seems incorrect. We ought to distinguish at least four kinds of moral challenge and four corresponding kinds of ‘political action’. First is the challenge brought about by the conflicting requirements and responsibilities attaching to political and personal roles. There may be a tension between fulfilling the responsibilities of political office and those of parenthood or friendship. More strongly, one might believe that the virtues associated with these roles are incompatible – a view it is tempting to formulate, with Machiavelli, as the claim that in order to be a successful politician one must be prepared to be a bad person. Second, and distinct from this, are the challenges created by role conflict within politics. A politician’s roles in representing the interests of different groups – a local constituency, to take an obvious example, as against the rest of the nation – may give rise to special moral problems in deciding how to respond to those competing claims.

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Third, we should distinguish issues of politicians’ professional ethics. What kinds of deception is it appropriate for politicians to resort to in dealing with each other and the public? What kinds of commitment is it appropriate for them to make to and demand from each other and us? What kinds of pressure is it appropriate for them to exert in order to achieve desired goals? Are there special justifications for setting the appropriate standards differently for politicians than for others? If standards of actual conduct are different, does that justify a different standard of expectation? Fourth are the challenges posed by actions of political statesmanship, in which decisions need to be taken about the present and future prosperity of a state and its relationship to others. It is here that questions arise concerning the use of violence to further such ends, or the use of other means that harm or restrict individuals for the sake of national interest. Why should we think that actions of these kinds are morally special? Why should the moral challenges they raise be thought different in kind from the sorts of moral challenges generated in other areas of life?5 Let us briefly survey some of the most prominent suggestions. Then we can examine whether any of them could make it plausible to say that political actions can be all-things-considered justified, but morally wrong. One idea is emphasized throughout the literature on this topic: in political action, individual agents are acting in a representative capacity. But why does that make political action morally special? From here, the reasons given by different writers diverge, and we ought to distinguish them. One view which has always been practically influential is that moral assessment applies solely to relationships between individual persons and not to entities such as states: morally assessing the actions of a state is a category error – an anthropomorphic fantasy – that clear thinking will avoid.6 However, there is little to be said for that view, and I shall simply set it aside here. Individuals can cooperate, in groups of different sizes, to perform collective actions with all of the characteristics that make them proper objects of moral assessment, as generous, loyal, cruel, dishonest, and so on; and that cooperation, on the largest scale, can amount to the agency of the state. So let us review some of the other suggestions. A first, straightforward line of thought is the one we saw in the quotation from Machiavelli. Successful political representatives7 tend to be unscrupulous (and successful because they are unscrupulous); so holding oneself to scruples about honesty in your dealings with them

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is merely naive. If political objectives are worth pursuing at all – and they are – then they must be pursued effectively. But that requires a level of unscrupulousness at least equal to that of your competitors. Any less would be not merely self-sacrificial but, in a political representative, other-sacrificial. This hints at a second, equally straightforward reason for thinking that the actions of political representatives are morally special: they can have weighty consequences, impinging on the welfare of many people. In particular, a point often emphasized is that our political representatives bear the responsibility for authorizing the socially sanctioned use of violence. There are some actions which no purely private objectives of mine could justify; but they have to be contemplated in order to protect the welfare and rights of many.8 Thomas Nagel interestingly subsumes this second suggestion under a third.9 He argues that what makes the actions of political representatives morally special is the different ways in which the principles of impartiality that are fundamental to morality are appropriately formulated to govern the different contexts of private and public action. In the private sphere, I am morally required to recognize that my interests should be pursued only in those ways that could impartially be permitted to anyone else. That means renouncing the use of violence in all but the most extreme circumstances, and ceding the authority to use it on my behalf to impartially established authorities. Its use by those public authorities is governed by requirements of impartiality too: but this time, these are requirements that impartial consideration be given to the rights and welfare of all of those individuals who are represented and on whose behalf this authority is being exercised. These requirements of impartiality apply principally to the political institutions established to constitute and regulate our society, and derivatively to the bearers of the offices contained in those institutions. In moving from the status of a private citizen to that of an office-bearer, impartiality now regulates my actions in a different way. The issue is no longer what entitlements I can impartially be given as one individual acting among others, but what impartiality requires of me in exercising those powers and privileges ceded to me by each of the individual members of my society. Martin Hollis makes a fourth and different suggestion.10 The special moral complexity of politics comes from the fact that no politician acts solely as the representative of one group. The role of any politician is to act in the face of competing interests, loyalties and obligations. Politics is ‘the art of compromise’. What is morally compromising about

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political life – inevitably so, since it is its essential feature – is that one set of commitments must be left at least partly unsatisfied in order to satisfy another. Skill in practising this art consists in finding the least unsatisfactory compromise between these competing demands. But even when skilfully practised, it always leaves some group with a legitimate complaint about the betrayal of trust. None of these lines of thought is in itself implausible. The question I wish to pursue, though, is what kind of conclusion they could establish about the morally special nature of political actions. It is one thing to conclude that the political context generates special moral requirements; quite another to maintain that morally wrong actions may be politically justified. There is a general challenge to thinking that the latter conclusion could ever be the right one. To appreciate that challenge, let us turn now to the parallel debate about whether morally wrong actions could be justified on grounds of personal well-being.

II How should we think of the relationship between judgements about what is morally right and what is personally best or most fulfilling? Four basic possibilities offer themselves for consideration. A first way to approach this is by thinking of the moral and the personal as offering us two separate fields of reasons – two distinct sets of features that actions can have, and which contribute separately to verdicts about moral rightness and personal flourishing, beyond which one is left with the further task of reaching an overall verdict about what there is most reason to do. However, this view has only to be described to realize that this would be an odd way to think of the relationship between the moral and the personal. It is hard to see any plausible view of moral judgement on which verdicts about the moral status of an action can be reached independently of considering the impact of the action on the agent’s well-being. For surely, whether an action is generous or fair, cruel or dishonest can be influenced by costs to the agent in performing it. So the idea that the moral and the personal offer two separate fields of reasons looks unattractive. Notice, however, that this still leaves open the possibility that verdicts about the moral status of an action fall short of overall verdicts about what there is most reason to do. Even if moral verdicts cannot be reached independently of the considerations that provide personal reasons, it might still be the case that personal reasons sometimes or always override those moral verdicts in

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determining what there is most reason to do. For an analogy: if I am determining my best strategy in a game, how tired I am might be a relevant factor. But once I have reached a conclusion about my best strategy, that still leaves open the question whether, all things considered, I have most reason to pursue that strategy. I might have most reason to abandon the game. And how tired I am might be part of what makes that true. When, in ‘Moral Saints’, Susan Wolf argues that ‘morality itself should not serve as a comprehensive guide to conduct’, it is natural to see her as putting forward a view of this kind.11 She is not committed to seeing the moral and the personal as constituting two separate fields of reasons, but does see moral verdicts as falling short of overall judgements about what there is most reason for a person to do. And (at least as I read her), she does think that such overall judgements can be made. In at least some cases, what there is most reason for a person to do is to act contrary to what is recommended by morality.12 Notice next another distinct but related possibility. Perhaps in some cases it is not possible to reach an overall judgement about what there is most reason to do. There is a compelling moral case to do one thing, a compelling personal case to do another; and the reasons favouring neither action prevail over those favouring the other. And perhaps, furthermore, this is not simply a case of an evaluative tie, in which the right thing to do is simply to make an arbitrary choice between two alternatives which are supported by equally strong reasons. Perhaps the two sets of reasons are incommensurable: there would be a moral loss in acting one way, a personal loss in acting the other way, but neither of these losses can be properly justified or compensated for by the reasons favouring the alternative.13 Add to these the further, straightforward view that moral reasons are always overriding – moral verdicts are always conclusive verdicts about what there is most reason to do – and this gives us four possibilities: separate fields of reasons; moral verdicts as subsidiary to overall verdicts about practical reasons; incommensurability (as a result of which no overall verdict is possible); and morality as overriding. No doubt this four alternatives classification could be refined. But it gives us what we need in order to pursue the task in hand. Let us now notice how it can be applied to thinking about the relationship between the moral and the political. The analogue of the first view is one on which the moral and the political offer separate fields of reasons. On this view, actions have two separate sets of features: those relevant to judgements about their

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moral merits and those to their political merits. Someone contemplating an action that possesses features of these two different kinds needs to assess the respective strengths of the reasons provided by these different features. And having done so one might judge that the action which, given the strength of the moral reasons against it, is morally wrong, is none the less more strongly supported by the political reasons in its favour. Machiavelli seems to be working with this picture. Morality, he seems to assume, peremptorily commands us to perform actions of certain kinds (kinds specified, apparently, in a list of virtues) and not to perform actions of certain other kinds. The political justifications one may be able to give for performing the latter actions will be irrelevant to whether those actions are morally wrong. But they may still be good justifications. Corresponding to the second view will be a position that denies Machiavelli’s apparent assumption that the moral and the political offer separate fields of reasons, but agrees with him that moral verdicts can fall short of overall verdicts about what there is most reason to do. Michael Walzer’s well-known discussion of the problem of ‘dirty hands’ in political action belongs to this category.14 Walzer does think that we can reach overall verdicts that morally compromising political action is all things considered justified. But it is not as if the moral and the political constitute two neatly separable fields of reasons. On the contrary: the justification for such actions – actions of dishonesty or secretly authorized violence, in Walzer’s examples – is a justification for thinking that they are morally required. However, they are also morally forbidden. It is not just that a good person should feel uncomfortable about doing such things: she will have done something wrong. Such situations constitute moral dilemmas in the strict sense: situations in which whatever you do you will be doing something morally wrong. And this can be true, Walzer holds, even when one action is the one which, all things considered, you ought to perform. Remove the last claim, and you would have a version of the third view. This holds that, at least sometimes, the reasons for and against a ‘politically necessary’ action cannot be set against each other in order to reach an overall verdict about what there is most reason to do. One version of this view, like Walzer, characterizes such situations as moral dilemmas. But notice that another version is possible, one that holds that a single moral verdict can be reached to the effect that an action is wrong, that the reasons in its favour show that it is politically necessary, and that no further, comprehensive verdict about what there is overall reason to do can be reached.

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Finally, to complete our taxonomy, there is the analogue of the fourth view, according to which morality is overriding. On the strongest, Jeffersonian version of this view, what public life calls for is the unwavering application of the virtues of private life – above all, transparent open dealing.15 To think that moral and political justifications conflict is simply a mark of moral corruption. In the previous section, we canvassed some of the reasons for thinking it naive, even irresponsible, to recommend the virtues of private life as a guide to political action. But the question is whether someone who thinks this should still advocate a version of the fourth view. Will any conclusive justification for a standard of political action count as a justification for thinking it morally right? Let me now set out the case for thinking so. Again, I shall approach it by way of its analogue in the relation of morality to personal life – the case for thinking that any allthings-considered justification for pursuing my own fulfilment will have to be a moral justification for doing so.

III Let us return to the first view, according to which the moral and the personal constitute separate fields of reasons; and let us start with a very simple version of this view. Suppose you conceive of morality as a set of exceptionless – morally exceptionless – prohibitions: never lie, never steal, and so on. Sensibly, you then add that considerations of personal well-being can provide good reasons for breaking such rules, and that can be what, all things considered, one should do. But you insist that this does not make such actions morally acceptable. You allow that if the only way for me to save my own life is to tell a not very serious lie, then I am justified in doing that; but you insist that this is a case in which there are good non-moral reasons (reasons that are unrelated to the contents of your moral rules) for doing what is morally wrong. There is a problem with this view. If I am given a set of rules for conduct and told that sometimes I am justified in adhering to them and sometimes I am justified in breaking them, then what is important is not whether I have broken the rules but whether I have justifiably broken the rules. The rules may have some heuristic value in helping me to decide what I am justified in doing – they may pick out important considerations for me to think about, or supply me with useful rules of thumb if exceptions to them are few – but they will not themselves express conclusions about what I am justified in doing. And

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these latter conclusions are the ones that are important. If there really is a good justification for breaking the rule, then that is a good justification for me to dismiss the criticism of anyone who criticizes me for breaking it, and a good justification for others not to criticize me for breaking it. The problem for this first way of conceiving of morality, then, is that ‘morality’ ceases to be something we ought to treat as important.16 What is important is ‘morality-when-it-is-justified’. The complaint that an action is ‘morally wrong’ – prohibited by the rules – is not itself something we ought to take seriously: what we ought to take seriously is the complaint that an action is ‘unjustifiably morally wrong’. Thus, if morality really is to constitute a subject-matter that is important, and talk of moral wrongness really is to express criticism, it will have to be equivalent to ‘morality-when-it-is-justified’. We need a vocabulary to express conclusions about this subject-matter – whether or not an action really is justified – so it makes sense to reserve ‘morality’ for that. There are further problems with the view that morality consists in a set of prohibitions. But they are beside our present purpose. The point that concerns us here is that the problem we have just identified can be generalized. It is easy to see how it generalizes to cover all versions of the view that there are separate moral and personal fields of reasons. If, given the actions that are recommended by moral reasons, we are sometimes justified by personal reasons in not performing them and sometimes not, then we will always have the distinction between ‘morality’ and ‘morality-when-it-is-justified’; and the latter, not the former, is what it makes sense for us to treat as important. What if we deny that the moral and the personal constitute separate fields of reasons? Recall the second of the four views set out above. This denies that moral verdicts can be reached independently of considering reasons of personal welfare, but still sees moral verdicts as falling short of overall judgements about the all-things-considered justification of action. To illustrate this, stay with the example of lying. A view of this second kind might allow that considerations of personal cost are relevant to the morality of telling a lie – so that the fact that it is necessary to save my own life means that lying is not morally wrong. But it might still insist that there are lies that it is morally wrong to tell which are none the less all-things-considered justified. A serious personal inconvenience may not be enough to make a lie morally acceptable, but it may be enough to give me most reason to tell it. Actually, it seems to me that many of us think of our convenient lies in this way. However, in doing so we run into the same problem. A view of this

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kind has to distinguish two different roles that reasons of personal welfare can carry in forming judgements about an action: there is the weight that those reasons carry for morality, and the weight that they carry in the overall justification of action. But once we have this distinction, we have once more turned morality into something unimportant, for the same reason as before. ‘Morality’ ought to be relegated in our concerns in favour of ‘morality-when-it-is-justified’. Given this problem with the first two views, it is tempting to turn to the third for a better expression of the idea that there may be good personal justifications for acting contrary to morality. This third view refuses (at least sometimes) to make an overall judgement about what there is most reason, all-things-considered, to do. Often, reasons of personal fulfilment will favour doing what is morally wrong. Sometimes, those personal reasons are not defeated by morality, but nor are the moral reasons against it defeated by the personal reasons. Each set of reasons carries a force that is not extinguished by the other, but nor do they balance each other: the two are incommensurable. To dramatize this view, take a different example. Suppose that, for reasons of personal fulfilment, I have decided to split up from my partner, despite the bad consequences for her and our young children. According to the third view, splitting up might be morally wrong and personally best, with no further judgement to be made about all-things-considered justification.17 The problem faced by the first two views is that if my action is allthings-considered justified, then declaring it to be ‘immoral’ is not something I should be concerned about. The third view avoids that problem. My action is neither all-things-considered justified nor allthings-considered unjustified. It is unjustified from a moral point of view, but justified from a personal point of view: no global verdict about the overall justification of the action can be reached. However, let us examine these claims more carefully. What could it mean to say that my action is unjustified from a moral point of view? One natural suggestion is this. Sometimes, reasons pertaining to my well-being are good enough to justify performing an action that is detrimental to someone else, as in the earlier example of lying to save my own life. But sometimes they are not, as when I lie to get out of an inconvenient appointment. An action is morally unjustified when my personal reasons for performing it are not good enough to justify its detrimental impact on others. But this cannot be how the third view understands morally unjustified action. For this suggestion concedes what the third view is

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trying to deny: the idea of the overall justification of action. Instead, saying that an action is justified from the personal but not the moral point of view will have to amount to this. The personal reasons favouring the action are good enough to justify it from my point of view; but not from other people’s point of view (in particular, the point of view of those affected by my actions). The assertion that an action could be ‘justified from my point of view’ is deeply problematic though. For there is no one for me to address such an assertion to. If I offer facts about my welfare to others as a justification for my action, they should be rejected. No one else should accept that my doing what I do is justified. For me to resort to saying that my action is ‘justified from my point of view’ cannot amount to more than simply saying that I will do it. There are aspects of it that cast it in a favourable light for me. But when the question is raised whether they are substantial enough to justify my action, the rest of you should answer, ‘No’. You can, of course, agree that my action is best for me and you can recognize that, from my point of view, it appears to be justified. But when I assert that it is justified, everyone else should reject what I say. Justification ‘from my point of view’ is no justification at all.18 So the idea that morally wrong actions can be justified on grounds of personal fulfilment faces a serious challenge. The core of this challenge is that it is hard to make sense of the idea of ‘moral justification’, as contrasted with ‘personal justification’, and somehow subsidiary to the overall justification of action. The important practical question is whether any reasons pertaining to my well-being are sufficient to justify my doing what is detrimental to others. If we answer ‘Yes’ to this question, then a lack of ‘moral justification’ is not something we should be concerned about. And if we try to avoid the question by talking about ‘justification from my point of view’, then we are resorting to something that is not a justification at all. Now let me explain how the same challenge applies to the idea that morally wrong action might be politically justified. Again, there are three views for us to consider as ways of filling out this idea: separate fields of moral and political reasons; moral verdicts as subsidiary to overall verdicts about practical reasons; and incommensurability. The first two differ over whether the moral and the political constitute separate fields of reasons; but they share the claim that moral verdicts fall short of overall verdicts about the justifiability of action. And since they share this claim, they will both invite the objection that ‘morality’ so conceived has been turned into something

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it does not make sense for us to care about. We ought to care about ‘acting morally’ when this is all-things-considered justified; but if sometimes it isn’t, we ought not to care about it. What we should care about is morality-when-it-is-justified. So we might as well reserve ‘morality’ for this latter subject-matter. If there are overall verdicts to be reached about the justification of action, then that is the proper object of our practical concern. It is only by thinking of ‘morality’ in a way in which there is good reason not to think of it that we can generate an apparent problem of contra-moral justification. This objection is avoided if, after all, there is sometimes no all-thingsconsidered verdict to be reached about the justification of an action such that the moral reasons speak in its favour while the political reasons speak against it. This is what the third view claims: reasons of political necessity might require me to torture you, morality might forbid it, and there might be no overall verdict to be reached about what there is most reason to do. But someone saying this runs into the other part of our challenge. What is it to say that the action is not morally justified? One natural suggestion is that it is to say that the political reasons for performing the action are not good enough to justify it, given the reasons not to torture people. But to say this is to concede the idea of overall justification of action, which the third view denies. Instead, the claim that an action is justified from the political but not from the moral point of view will have to come to this: the political reasons favouring the action are good enough from the point of view of the beneficiaries of the action, but they are not good enough from the point of view of those to whom it is detrimental. But now we arrive at the corresponding problem to the one reached earlier. Even if there are several of us performing a collective action, making claims about the justification of that action ‘from our point of view’ achieves nothing if no one else ought to accept that our actions are justified. To say that we are justified ‘from our point of view’ in doing something to you cannot amount to more than saying that we will do it. If there are features of the action that favour our doing it, independently of whether we will do it, then those features justify doing it. And if there are features which do justify doing it, then they justify doing it despite the fact that it will be bad for you. ‘Private justification’ is no justification at all. This view does not generate a conflict between two different kinds or sources of justification: moral and political. Rather, it abandons the idea of justification altogether. Thus, the idea that there can be contra-moral justifications for political action faces essentially the same challenge that confronts supposed

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contra-moral justifications of personally beneficial action. Either such views have simply turned ‘morality’ into something we ought not to care about (and have consequently made it uninteresting that there can be contra-moral justifications for political action) or they resort to an appeal to a kind of ‘private justification’ which is no justification at all.

IV I think there are two ways in which this challenge might be addressed. For the first, let us return to Walzer. On his view, politically necessary actions may be all things considered justified – because they are morally justified – yet at the same time morally wrong. They may be both morally required and morally forbidden: moral dilemmas in the strict sense. Walzer gives prominence to two examples: in the first a politician needs to bargain with a corrupt party official in order to get elected, and in the second a politician must authorize the torture of a terrorist suspect in order to save lives.19 Although the politician should in each case, all things considered, perform these actions, the grounds for thinking them immoral remain undefeated. Anyone performing such actions should not simply regret having to do it, but should regard their action as wrong – calling for guilt and atonement, and not merely sadness. Walzer is therefore giving what has come to be called a ‘moral residue’ argument for the existence of moral dilemmas.20 Although there can be circumstances in which one is justified in overriding a moral rule, the appropriate attitude to adopt in doing so is not to think of the rule as having been annulled. It remains in force, and breaking it calls for guilt and acts of atonement – the appropriate responses to wrongdoing. This view suggests one way of replying to our challenge. When it is objected that a distinction between ‘morality’ and ‘morality-when-it-isjustified’ makes the former unimportant, Walzer can reply as follows. It may be very important, in performing an action which is all-thingsconsidered justified, to acknowledge the ‘moral residue’ that the action leaves: the unaddressed reasons that remain in force for not performing the action. Insensitivity to those reasons is something for which criticism is appropriate. And a proper sensitivity to them may involve characteristic responses of apology and compensation. In these ways, then, moral requirements may remain important even when one is allthings-considered justified in not doing what they require.

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Opponents of moral dilemmas have a reply to Walzer’s view. We should certainly recognize a distinction between moral rules that are overridden and those that are annulled altogether. I might be justified in breaking my promise to meet you for lunch if there is something more important I am called on to do instead; but I should still apologize to you and offer to make amends. This is different from a situation in which you release me from the promise: now the promise has been annulled, not broken. However, accepting this, it might be insisted, does not force a distinction between what morality requires and what is all-things-considered justified. In the first case, I am all-thingsconsidered justified in 1) breaking the promise and 2) apologizing and offering to make amends. I am also justified, no doubt, in feeling bad about breaking my promise to you. But whether that bad feeling is properly a feeling of guilt depends on whether the action is appropriately thought of as wrong. And there are grounds to deny that. If I am all-things-considered justified in breaking a moral rule, then it might make sense for me to regret having been put into a situation where that was the right thing to do, but it becomes hard to see what further concern it could be sensible to express by saying that the action was wrong. The problem is essentially the earlier problem concerning a distinction between ‘morality’ and ‘morality-when-it-is-justified’. We had better not turn ‘wrongness’ into something unimportant. I think this debate – the debate over the merits of a ‘moral residue’ argument for moral dilemmas – has missed an important distinction. To appreciate this, we can stay with the example of promise-breaking. I could find myself in a situation where I am justified in breaking a promise through no fault of my own. I have promised to meet you for lunch, let us say, but confront an emergency on the way: an accident occurs, and I need to take someone to hospital. Alternatively, the situation might be my fault: I have promised to finish the paper by the end of the month, but have also taken on the responsibility of preparing a new course, and now I find I cannot do both. These two cases are similar in one respect, and different in another. The similarity is that, given the choice I have ended up facing, I am all-things-considered justified in breaking my promise. The difference is that in the second situation but not the first, I cannot give an adequate justification of the actions through which I ended up facing that choice. And this makes it misleading to say, without qualification, that I can justify breaking my promise in the second case. I can give what we might call a ‘proximate justification’ of the action, given the circumstances of the choice, but I

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am also answerable for those circumstances, and I cannot justify the actions that got me into those circumstances. This distinction seems important – indeed, it seems to have the kind of importance which it makes sense to mark using moral language. In the first case, the ‘residue’ left by the action includes apology and an offer to make amends; but it does not include the thought that I have treated you unjustifiably. In the second, it does include this further thought. And this thought – the thought that I cannot properly justify my actions to those whom they unfavourably affect – is clearly one it makes sense to frame in terms of wrongness. Even though I am justified in breaking my paper deadline given my teaching commitments, I can be blamed for getting myself into a situation in which I cannot discharge the responsibilities I have taken on. I cannot adequately justify to my editor my failure to finish the paper, since I could have finished it, had I done everything I should have done. So here, breaking the promise remains wrong. This suggests a first way to meet the challenge set out in section III: it shows how there might be all-things-considered justifications for morally wrong actions. However, when we apply it to the case of ‘politically necessary’ actions, notice that it fits poorly with the kinds of examples Walzer himself describes. Presented with his examples of the corrupt bargain and the authorized torture, we should ask a straightforward question: is the politically necessary action morally justified or not? If it is, then there may be a place for regret on the part of the agent at having to do something undesirable, but there is no place for criticism of the agent for doing something wrong. Instead, the actions which are appropriate candidates for Walzer’s treatment are the two kinds of role-conflicts we identified in section I: conflicts between political and personal roles, and conflicts within politics between the demands of representing the interests of different groups. There will be a range of such cases. In some – where the conflict is not my fault – the justified action will not be morally wrong, but in others, there will remain scope for moral criticism of me, even when I am justified in reconciling a role conflict by acting to fulfil one set of responsibilities in preference to another. For it may be my fault that I have taken on these different responsibilities. Given the conflict, I may be able to justify resolving it by acting in a way that lets one group down; but I may not be able to justify having got myself into the conflict situation, and if not, I cannot justify letting down the members of that group. I have wronged them.

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Role conflicts, therefore, offer us one way in which an action which is politically justified may still be morally wrong. And if it is true (as Martin Hollis claims) that the characteristic feature of political agency is the way it involves representing the conflicting interests of different groups, then that would explain why this kind of contra-moral justification is endemic in (if not unique to) political life.

V There is another way in which talk of contra-moral political justification might make sense. It comes from the way in which political action is responsive to what I shall call ‘reasons of allegiance’. You and I structure our lives, to differing degrees, around different activities which we think of as valuable: activities of philosophical enquiry, artistic endeavour and appreciation, personal relationships, the enjoyment of our environment, sports, and so on. Our allegiances differ in two basic ways. Some of our opinions about the value of different activities diverge; and even when we agree, no one can pursue everything that is valuable – there is not enough time in one life to fit it all in. So I find myself pursuing those activities in a society in which most members do not share my allegiances, and many members do not even see as valuable. In relation to such activities, there are two kinds of reason-giving practices to consider. First are the reasons I can give myself for pursuing those activities, which are also reasons I can give to those who share my allegiances. And second are the reasons I can give to those who do not share those allegiances to respect my ability to pursue them. The contents of these two kinds of reasons are different. My reason for devoting myself to X will have the form: (1) that X has great value whereas the reason I can give to others for respecting my ability to devote myself to X takes the form: (2) that X is an allegiance of mine. Even if you deny (1), you should still recognize (2) as a reason for allowing me (within limits) to pursue X. You have your allegiances; I have mine; and we ought to respect each other’s ability to pursue the

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allegiances we have. Even if you do not respect X, you should respect me. Respecting me does not require you to respect the objects of my allegiances, but it requires you to respect the fact that I have them. Reasons of respect, then, require others to provide me with the space in which to pursue my allegiances. However, they also place constraints on the extent to which, in pursuing my allegiances, I can properly impinge on the interests of others.21 Suppose that I am convinced that X has great value, convinced that you ought to think so too, and convinced that X is valuable enough to justify bearing personal hardship in its service. But suppose you disagree. That may be something I ought to respect too. For I ought to acknowledge that there can be reasonable differences of normative and evaluative opinion: reasonable differences of opinion about what is most worth doing and valuing. When you and I differ over which of a range of options is best, this might be because one or both of us is being unreasonable; but then again it might not. We might both be making a serious and unprejudiced effort to evaluate those options and to listen to each other, but might still end up disagreeing. Accepting that you are reasonable does not commit me to accepting that you are right. But it might have important moral implications. It might, for example, make a difference to whether it is morally acceptable for me to impose hardship on you through my pursuit of X.22 This suggests a view about what morality requires of us by way of respect for other people, which goes beyond what has been assumed so far. I have been asking whether the reasons favouring an action are good enough to justify its detrimental impact on others. However, it might be thought that treating others in a morally respectful way involves asking a different question. I should ask myself not simply whether there is a good justification for actions of mine that impose a cost on others: I should ask whether there is a justification that a reasonable person affected by my action would have to accept as adequate.23 What is at stake here is a stronger ideal of respect for others: an ideal of mutually respectful dealing that involves only imposing hardships on others for reasons that they can reasonably be required to recognize. I claim here simply that this is an appealing idea: I do not have the space to discuss its merits more fully. What I want to do in closing is to draw attention to its application to our question concerning political action. Let me approach this by asking a question. Don’t these two pictures of morally required respect – justifying my treatment of you versus jus-

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tifying it on grounds that you cannot reasonably reject – actually coincide? If there are good reasons for requiring me to treat you respectfully in the latter way, then I will have to do that in order for my treatment of you to be justified. Here is how they could fail to coincide. Suppose the following things are true. X itself is at stake. It does have great value, and I know that. You reasonably but incorrectly disagree. And it is up to me whether X is to be protected; but I can only protect it by imposing hardship on you. If these things are true, I cannot justify imposing that hardship on grounds that you cannot reasonably reject. So, if morality requires treating you in accordance with the ideal of mutually respectful dealing that has been described, imposing that hardship would be morally wrong. However, if X is valuable enough, I might be justified in protecting it despite the disrespectful treatment of others. My action could thus be justified, but morally wrong. For most of us, such a situation will rarely arise. My refraining from pursuing philosophical enquiry will not jeopardize philosophical enquiry itself. So I cannot cite that as a good reason for imposing hardship on you in my pursuit of philosophical enquiry. True, my fulfilment is also valuable (since I am valuable), and that is something that can justify my actions. But my fulfilment is no more valuable than yours, so there are strict limits on the extent to which this can justify me in imposing hardships on you. However, I think there are some agents for whom the situation I have described does arise, and acutely so. For a concrete and urgent example, we can return now to politics. In section I, we canvassed various ways in which it can be taken to be significant that politicians act in a representative capacity. There is a further important way in which this is true. Many of us think that a state itself can embody goods beyond the well-being of its individual citizens. It can have a history and a culture which embody ideals of civilization, achievement, respect and fellowship that are worth upholding and protecting. Consider a state of which this is true. The representative role of a politician may then amount to the custodianship of those values. And protecting such values might require actions of various troubling kinds. In extremity, it might involve declaring war. But it might also license a range of lesser impositions: restrictions on individual liberties in the cause of protecting a state against its enemies. The question I want to close with concerns what we should say about the imposition of hardships on individuals who do not share the

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ideals being defended. There is no special problem surrounding what we should say about defensive actions taken against, say, fundamentalist terrorists bent on destroying a Western liberal democracy. We can justify defending ourselves, and the larger ideals which our civilization embodies, against such attacks; and the fact that our justifications are not accepted by those against whom we are defending ourselves presents no moral problem. A terrorist fanatic cannot reasonably object to our efforts to defend ourselves against him. However, what about the innocent victims of our self-defensive efforts – the innocent victims of a self-defensive war; the people whose liberty is curtailed by intelligence-gathering activities? My closing suggestion is this. The justifications we – and, on our behalf, our political representatives – have for our self-defensive actions may be ones that those living according to other ideals may reasonably reject. If the values embodied in our society really are endangered, there may be powerful justifications of form (1) above for defending them. However, those justifications may reasonably be rejected by those who do not share our allegiances. Someone reared in a fundamentalist tradition emphasizing religious purity may be incorrect, but not unreasonably so. 24 And if so, our self-defensive actions may be incompatible with a morally appropriate respect for them. We may be unable both to treat them respectfully and to defend our own ideals. Our political representatives, on our behalf, may indeed be justified in defending the values of our society. They should certainly not do so in a way that imposes avoidable hardship on the innocent. But sometimes they must do so by imposing unavoidable hardship on the innocent. Some of those innocent people reasonably reject our ideals. Our treatment of them constitutes the other example of action which may be politically necessary but morally wrong. We do wrong them – but we are justified in doing so in the defence of ideals that must be protected. And there is a strong case for thinking that this is the situation we are in today in defending ideals of personal freedom and democracy in the West.

Acknowledgement I am grateful to Igor Primoratz for his editorial comments on an earlier draft of this chapter.

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Notes 1 Niccolò Machiavelli, The Prince, trans. George Bull, Harmondsworth: Penguin Books, 1975, chapter XV. It is possible that Machiavelli is exaggerating for effect in this passage. Shortly afterwards, he clearly reveals his attraction to the different view that someone who is naive enough to expose himself to destruction at the hands of the unscrupulous is not virtuous at all, but lacking in the virtue of prudence: ‘taking everything into account, he will find that some of the things that appear to be virtues will, if he practises them, ruin him, and some of the things that appear to be wicked will bring him security and prosperity’ (emphasis added). 2 The obvious confusion I point out can be removed by reading Machiavelli as distinguishing between what should be done morally speaking and what is justified all things considered. My topic in this essay is to which political actions it makes sense to apply that distinction. I am taking the question of whether an action is all things considered justified to be the question whether there is sufficient reason for it, and not whether a person who performed it would be rational. (I do think there is room to ask whether it would be rational for a given agent to do what should be done.) 3 See Gerald F. Gaus, ‘Dirty Hands’, in R. G. Frey and Christopher Heath Wellman (eds.), A Companion to Applied Ethics, Oxford: Blackwell, 2003, pp. 167–79. 4 In talking of ‘reasons pertaining to personal well-being’ I mean to allow for the observation, made by Scanlon and others, that my reason for performing the actions that contribute to my well-being is rarely that they contribute to my well-being. See T. M. Scanlon, What We Owe to Each Other, Cambridge, MA: Harvard University Press, 1998, pp. 128–33. 5 For the case against thinking that this question can be given a satisfactory answer, see C. A. J. Coady, ‘Politics and the Problem of Dirty Hands’, in Peter Singer (ed.), A Companion to Ethics, Oxford: Blackwell, 1991. 6 The American diplomat George Kennan was expressing this view when he wrote: ‘Moral principles have their place in the heart of the individual and in the shaping of his own conduct, whether as a citizen or as a government official. … But when the individual’s behaviour merges with that of millions of other individuals to find its expression in the actions of a government, then it undergoes a general transmutation, and the same moral concepts are no longer relevant to it.’ Realities of American Foreign Policy (New York: Norton, 1966), p. 48. However, the core theorists of political realism such as Morgenthau and Niebuhr are more careful to emphasize a distinction between the proper standards for the moral assessment of states and individuals. See Hans Morgenthau, Politics among Nations, 5th edition, New York: Knopf, 1973, and Reinhold Niebuhr, Moral Man and Immoral Society: A Study in Ethics and Politics, New York: Scribner, 1949. 7 Machiavelli, of course, is writing about self-authorized representatives rather than democratically authorized ones. 8 This is one of the main points emphasized by Michael Walzer, ‘Political Action: the Problem of Dirty Hands’, Philosophy and Public Affairs 2 (1973), pp. 163–4, 174.

74 Garrett Cullity 9 Thomas Nagel, ‘Ruthlessness in Public Life’, in Stuart Hampshire, Public and Private Morality, Cambridge: Cambridge University Press, 1978. Nagel is not claiming that what is politically right can be morally wrong. Rather, his claim is that public and private morality differ, and that the former cannot be derived from the latter, although they share a common source. 10 Martin Hollis, ‘Dirty Hands’, British Journal of Political Science 12 (1982). 11 Susan Wolf, ‘Moral Saints’, The Journal of Philosophy 79 (1982), p. 434. 12 Not everyone reads Wolf this way: see Catherine Wilson, ‘On Some Alleged Limitations to Moral Endeavor’, The Journal of Philosophy 90 (1993), p. 280. However, it seems to me that in passages such as the one quoted in the text, or when Wolf urges ‘that we have reason not to aspire to [the ideal of moral perfection] and that some of us would have reason to be sorry if our children aspired to and achieved it’ (p. 436), she is embracing the possibility of all-things-considered judgements about reasons for action. 13 This seems the best way to characterize the position set out by Wilson, ‘On Some Alleged Limitations to Moral Endeavor’, esp. pp. 284–9. 14 Walzer, ‘Political Action’, pp. 160–80. 15 ‘I never did or countenanced, in public life, a single act inconsistent with the strictest good faith; having never believed there was one code of morality for a public and another for a private man.’ Thomas Jefferson, letter to Don Valentine de Feronda, 1809, cited in Hollis, ‘Dirty Hands’, p. 390. An earlier locus classicus for this view is Kant, who held that ‘Right must never be accommodated to politics, but politics must always be accommodated to right.’ Immanuel Kant, ‘On a Supposed Right to Lie from Philanthropy’, Practical Philosophy, trans. Mary J. Gregor, Cambridge: Cambridge University Press, 1996, p. 614. 16 ‘But even if it is not all-things-considered important, it is still morally important.’ This kind of reply does not escape the challenge being raised here. The question simply becomes, Why should we treat what is ‘morally important’ as important? 17 A view of the third kind need not be saddled with the claim that such a situation will always lead to an incommensurability of moral and personal reasons. The decision might be irresponsible enough to mean that it is allthings-considered unjustified; the personal unhappiness involved, and the robust nature of the people involved might mean that it is all-thingsconsidered justified. 18 It is not being denied that there might be an action which I am justified in performing while others would not be. If that were true, we could all recognize its truth. 19 Walzer, ‘Political Action’, pp. 164–8. 20 See Terrance C. McConnell, ‘Moral Residue and Dilemmas’, in H. E. Mason (ed.), Moral Dilemmas and Moral Theory, New York: Oxford University Press, 1996. 21 As a limiting case, there are some allegiances which are themselves immoral and ought not to be pursued at all. 22 For important discussions of what reasonableness consists in, see Scanlon, What We Owe to Each Other, pp. 32–3, 191–7, and John Rawls, Political Liberalism, New York, Columbia University Press, 1993, pp. 48–54.

The Moral, the Personal and the Political 75 23 This makes a first small step in the direction of the contractualist account of moral wrongness advocated by Scanlon. But Scanlon goes much further when he claims that wrong actions are those ruled out by rules that no one could reasonably reject as a basis for informed, unforced, general cooperation. See his ‘Contractualism and Utilitarianism’, in Amartya Sen and Bernard Williams (eds.), Utilitarianism and Beyond, Cambridge: Cambridge University Press, 1982, esp. p. 110, and What We Owe to Each Other, esp. chapter 5. 24 Such attitudes do become unreasonable when they involve the view that everyone else should be forcibly converted.

5 Professional Ethics for Politicians? Andrew Alexandra

Introduction In The Prince Machiavelli famously claimed that a ruler ‘must learn how not to be virtuous’, adding that he should ‘make use of this or not according to need’.1 It seems natural to understand Machiavelli here as using ‘virtue’ in the sense of ‘conventional virtue’: clearly, Machiavelli considers that in certain situations some forms of behaviour that are, in general, praiseworthy merit condemnation in a prince, and conversely, action that ordinarily is vicious may count as virtuous for the prince. There is a morality that is appropriate to princes that can and, on occasion, does come into conflict with ordinary morality. When such a clash occurs, the good prince is precisely the one who acts according to the dictates of princely, rather than conventional, morality. Michael Walzer interprets Machiavelli’s advice as equivalent to the demand that political actors be prepared to get ‘dirty hands’. According to Walzer, ‘a particular act of government (in a political party or a state) may be exactly the right thing to do in utilitarian terms and yet leave the man who does it guilty of a moral wrong’.2 Despite the fact that this action will render him guilty of a moral wrong, the political actor should nevertheless do it – he should get his hands dirty. Roughly, someone faces a dirty hands situation (DHS) when they have to do evil in order to do good. More precisely, someone faces a DHS when the following four conditions hold: 1. They have the opportunity to achieve a morally good end, and they aim to do so. 2. There are means available to them to achieve this end that are normally considered morally wrong (they are ‘dirty’). 76

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3. The use of these means is the best, or perhaps the only practicable, way of ensuring that this good end is realized. 4. The good likely to be achieved by using the dirty means substantially outweighs the evil likely to follow from their use. The first two conditions often hold: we commonly find ourselves in situations where we could achieve good ends by using dirty means. Furthermore, sometimes such means are the only or best way to achieve these ends, satisfying the third condition. Normally, however, the fact that someone would have had to use dirty means to produce a good outcome discharges them from any obligation to do so; conversely, that a good outcome was aimed at or even achieved does not provide sufficient justification for the use of dirty means. That is, there is at least a strong presumption that good ends do not justify the use of dirty means. This presumption becomes moot, however, when the fourth conditions holds. If someone can save the lives of a number of innocent hostages by making false promises to the hostage-takers, for example, there seem to be powerful reasons in favour of them making such promises. A person who supports their refusal to do so by appeal to the presumption that the end does not justify the means leaves themselves open to a suspicion of ‘rule worship’, of being obsessed with maintaining their own moral purity regardless of the cost to others. Dirty hands situations thus appear to support the apparently paradoxical claim that there are some morally bad actions that we (morally) ought nevertheless to do. There are at least three kinds of responses to that claim. The first is simply to deny it – we ought not to engage in such actions, whatever the consequences. The second is to dissolve the appearance of paradox. These kinds of actions are, as claimed in the second condition above, normally morally wrong. When we face a DHS, however, they are no longer morally wrong, but rather morally permissible or even obligatory. This reasoning will appeal to a consequentialist, who sees moral rules as simply rules of thumb, deriving whatever normative force they have from their usefulness in helping limited beings like us to act in ways that will produce good consequences. The third response – Walzer’s – is to embrace the paradox. We ought to act in the normally morally wrong way, and that action remains wrong. While, as Walzer himself points out, DHS can arise in ordinary life, they are likely to arise for holders of certain kinds of roles, in virtue of their occupation of those roles. Recall the first of the conditions for the

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person facing a DHS: they have the opportunity to achieve some morally good end, and they aim to do so. Roles are typically individuated teleologically, in terms of the ends they are supposed to achieve. Morally justified roles are those which help us to achieve morally good ends (as the role of parent, for example, helps us to achieve the morally good end of caring for the young). Role morality, then, is a specification of the ways in which role holders should act to achieve those ends. Thus, role morality is already grounded in consequentialist (what Walzer calls utilitarian) reasoning, and it is given that the holder of a morally justified role aims to achieve a morally good end. Furthermore, in virtue of their specific expertise, powers and so on, often role holders will have opportunities to achieve that end that others do not. Walzer clearly feels that the problem of dirty hands is particularly pressing for those who occupy a political role. In part this is because the politician is in a position where the decisions they make can have enormously important consequences. But it also stems from the particular kind of moral environment that the political actor is likely to find themselves in. While the political role is, or can be, morally justified, since it can be used to bring about morally good outcomes, the political realm itself, as described by Walzer (taking himself to be following Machiavelli), is a cesspool of immorality, a ‘terrible competition for power and glory’.3 It seems that for Walzer the demand that the political actor be prepared to get her hands dirty is required by good faith. One of the obligations that one assumes in taking on a role in good faith is to be prepared to act effectively to realize the ends of the role. In politics effectiveness depends not only on how one acts oneself, but how others act, and often those others will be acting in ways that makes it necessary to act immorally to bring about the valued end. Though the demand that political actors should be prepared to get their hands dirty seems on the face of it to be shocking, in licensing or even requiring immorality in good people, Walzer’s account of political role morality is actually highly moralized. The political actor must make choices at every point according to whether they will bring him closer to the (moral) end for which he committed himself to political action in the first place. He cannot rest content, as many role-holders can, in the knowledge that even if this role-mandated action is not helping make the world a better place, or even if all his actions are not doing so, nevertheless overall the world is a better place for such action. This demand to judge each of their actions in the light of their animating moral end applies with equal force to every kind of political

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actor: to Cesare Borgia, Harry Truman, a candidate for municipal office and nineteenth-century Russian terrorists.4 In this chapter I argue that there are in fact important differences between different kinds of political actors and the moral standards that apply to them; differences that are already at least implicit in Machiavelli’s writings in the sixteenth century. In particular I focus on the role morality that applies to those who hold political office in modern states, so-called ‘professional politicians’.

What is professional ethics? The division of material labour in modern societies has led to the creation of a variety of distinct occupational roles, distinguished both by the specific ends they aim to achieve and the means used to achieve them. At its broadest, ‘professional ethics’ is a term that is used as a synonym for ‘occupational ethics’, the moral requirements that apply to people in virtue of their occupational role. Since such roles involve those who hold them receiving payment for services on which others depend, many of these requirements simply follow from general moral requirements: fairness demands that we work diligently and carefully, honesty that we render accurate account of work done, and so on. Given the teleological definition of occupational roles, however, some of these requirements are more particular to the various occupations. A good chef, for example, is not simply one who does an honest day’s work, but one who is able efficiently to produce food that the public finds appetizing. Occupational role morality, then, requires that occupational role-holders develop and exercise the skills required to do their work properly, skills that count as occupational virtues. It also requires that they develop an awareness of, and capacity to resist, the temptations to corrupt practice that inhere in particular roles (to bribery in police work; to using company resources for personal enrichment in the case of business executives, etc.). More narrowly ‘professional ethics’ refers to a subset of ‘occupational ethics’, which applies to people in virtue of their membership of what might be called the paradigmatic professions, such as medicine and law.5 There is a good deal of consensus in the sociological and philosophical literature as to the distinguishing marks of professional occupations.6 First, the work of its members is oriented to the provision of an important good. These goods – the defining ends of each profession – are, or involve, the satisfaction of fundamental needs.7 (Someone has a

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fundamental need if they suffer significant harm if they fail to obtain the object of that need.) The medical profession aims to satisfy the need for maintenance and restoration of health, the legal profession the need for justice, and so on. These needs are the grounds for a right to their satisfaction among members of the public, and correspondingly for the duty of professionals to satisfy them. The goods that the professional aims to provide, then, are public goods, at least in the sense of being goods that ought to be accessible to any member of the public who needs them (and in some cases in the more technical sense of public goods where such a good can be available to any member of the public only if it is available to all). Individual professionals can do their duty in part by attending to the needs of their own clients, but may also be required to act in concert with other members of the profession to provide the conditions where the needs of the community as a whole can be met. Of course, many occupational groups, from farmers to transport workers, satisfy needs. Professions are further distinguished from other needs-satisfying groups by the degree and kind of creative expertise that their members must be able to deploy. Aristotle’s distinction between what he calls the practical arts – which he identifies as politics, household management and ethics – and the productive arts – which include such things as shipbuilding and garment-making – can help illuminate the nature of this expertise.8 Both sorts of arts are directed towards bringing about valuable changes in the world, and both derive value from their conduciveness to the realization of such states of affairs. They differ, however, in that the goods that can be achieved through the exercise of productive arts are purely external to those arts – that is, they can be specified without reference to those arts, and it is at least conceivable that those goods might be gained independently of their exercise – so they are valuable only as a means to the end of, ultimately, the good life. Practical arts, on the other hand, are not valuable only as means to ends, since their exercise involves activity which is valuable in itself, and which is internal to that activity. Mastery of both sorts of arts may require the development of highly refined skills. However, the skills of the productive artist are essentially mechanical, in the sense that they can be exhaustively specified and when applied to similar circumstances will produce similar outcomes. We could – and, of course, increasingly do – program a machine to carry out such tasks. The skills of the practical artist, on the other hand, are not mechanical, but open-ended, both in their specification

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and in their application. There is, for example, often no mechanical procedure to determine the most appropriate means to achieving the desired end – even that end itself may not be fully fixed. It is characteristic of these kinds of arts that practitioners must exercise discretion and begin to develop idiosyncratic styles of practice in doing so. The mastery and exercise of practical arts is, then, (partly) constitutive of the good life. Hence, the skills that are required for the successful prosecution of the productive arts are more than technical virtues – they can be seen as moral virtues. The line between practical and productive arts may not be sharp – some arts may well straddle it, and there is room for disagreement about particular cases – but clearly much professional activity exemplifies the features of the practical arts, and people are attracted to it for this reason. The third salient distinguishing feature of professions is that their members are granted a high degree of autonomy in the exercise of their expertise. The need for this autonomy follows from the nature of the expertise professionals possess, outlined in the previous paragraphs. Since there is often no mechanical procedure for determining appropriate action, the professional must be free to decide how to act. Finally, professions are distinguished from other occupational groups by the ways in which they are collectively organized. Professionals must come together in what might be called a professional college. The characteristic skilled creativity and consequently necessary autonomy of the professional can only be developed within a group, and much professional work is collegial in nature, with individual practitioners drawing on the special skills and knowledge of colleagues. The paradigmatic professions, as well as being colleges in this sense, are also organized as corporate bodies. Any profession comprises persons who are not simply practitioners, but who also occupy specific positions and stand in authority relations to each other in structured professional organizations and pursue the collective ends of the professional through such activities as lobbying the government, accrediting individuals and institutions, disciplining or debarring miscreant members, and ensuring that sufficient practitioners are trained and licensed, and that remuneration for such practitioners is sufficiently attractive to make it likely that they will continue to exercise their skills, an so on. Professionals are not simply people who have the ability and willingness to exercise a practical skill to satisfy fundamental needs. They are also people who are entitled to do so. That is, professionals are not identified simply by the role they play, but also by the office they occupy. Someone occupies a role, in the sense in which it will be used

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here, when they actively pursue one of the practical arts. They hold an office, when the (full) exercise of that role is limited to those who have been granted the right to do so by an entity that that has the higher order right to grant that right (in Hohfeldian terms a power), and where, typically, the right is conditional on the putative office-holder conforming to certain explicit norms in their exercise of their role. Being a warrior is a role: a warrior is a person who is disposed to exercise his skill in the use of violence. Being a soldier, on the other hand, is an office: a soldier is a warrior who has been recruited into their national army, obeys the commands of their superior officer, and so on. Similarly, being a healer is a role, while being a doctor is an office. Two questions suggest themselves in respect of this power to determine the allocation of offices. Why is it needed? And, given that it is needed, to whom should it be granted? There are a number of reasons why roles should become offices. First, given the vulnerability of members of the public to the abuse of the role, allowing only those who are granted office to exercise their art, and issuing credible threats that this right will be cancelled if misused, gives office-holders incentives to act as they should. In some cases, such abuse is driven not by attempts to realize personal goals such as monetary gain without diligent exercise of skill, but rather by the very desire to exercise that skill. So, the office of soldier is arguably necessary, but we want soldiers to restrain the exercise of their war-making skills. Second, there may be problems in recognizing who actually does possess the skills distinctive of the role. Medical quackery, for instance, can cause great harm. One of the functions of requiring healers to possess institutional status is to certify to those who need their services that they do in fact possess the skills they claim, and that they have an incentive to use those skills properly, for fear of losing their licence to do so. Third, there may be good reason to limit the number of certain kinds of offices, for example to ensure that there are enough but not too many practitioners, for fear that competition among them will cause them to cut their fees to the point where satisfactory service cannot be provided. The potential for corruption in a system where access to a good is controlled by those who themselves stand to benefit from restriction of access is obvious. A good deal of the sociological literature on the professions has taken it that control of this access, and the benefits that come with it, is the animating aim of professionalizing groups. In effect, the professions have been seen as ‘rent-seekers’, where the rent in question is not only unearned economic advantage, but also social power and prestige.9 That professional groups have exploited their

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position for such ends can hardly be denied.10 At the same time, where there is a need for a system of allocation of offices, there are clearly good reasons why those who possess relevant expertise should play a central role in that system. On the account given here, then, the relation of the individual professional to the end definitive of their role is mediated through an institutional framework that both facilitates, but, importantly, constrains, their practice. They may thus be required to act in ways that do not directly contribute to the realization of the defining end, as when they contribute to professional education, participate in professional bodies, and so on. They may even be required to act in ways that conflict with the realization of that end, as when, for example, a nurse refrains from undertaking a medical procedure that he is competent to do and that would help a patient, because he is not licensed to do so. The rationale for such requirements, of course, is that, overall, the end of the profession is best served by general conformity to institutional rules, even if in particular cases it may not be.

Professional ethics for politicians? Can politicians be regarded as (like) professionals? There are some striking similarities, at least, between the two groups. Though they both have venerable historical provenance, the institutional structures that define their roles have developed relatively recently and are still in flux. The professions emerged in recognizable form no earlier than the midnineteenth century.11 Similarly, it is only in the past century or so that the political role has taken on the form it now has in liberal democracies, as a paid occupation, whose members typically belong to welldisciplined party groupings and are elected by popular suffrage. Like professionals, politicians act to provide fundamental goods, occupy wellpaid and prestigious positions and do interesting and creative work, and indeed are increasingly drawn from the ranks of professions. There is an obvious difficulty in trying to describe a role morality for politicians that does not typically apply to the attempt to do the same for professionals. Roles, as claimed above, are distinguished both by the specific ends they aim to achieve and the means used to achieve them; consequently role morality describes what conduces to (or hinders) the realization of the various ends. For most professions, the ends that define them are, broadly, clear enough. In the case of politics, on the other hand, there is wide and radical disagreement about both the ends of politics, and hence of politicians, and about the

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means that should be used to achieve those ends. Socialists, for example, will see the powers that legitimately belong to the political office very differently from market libertarians; even among democrats there is disagreement about the proper function of elected politicians. Despite these disagreements, I take it that there is at least fairly general consensus that in the modern world there is a need for (a system of) properly functioning states, which provide for the conditions necessary for the security and well-being of their inhabitants. Politicians should, at least, act in ways that help bring about and maintain that system. This requirement is, then, foundational to the role morality that applies to politicians. There are two related senses to the term ‘state’, in its modern usage. First, it can refer to a unified geographical region, within which a single sovereign power has the ability to determine how violence is to be used; a monopoly that is often taken to be definitive of the state. (A ‘failed state’ is a geographical area in which there is no effective monopoly control over violence.) Second, the term ‘state’ refers to the corporate entity that exercises political authority within that region; an entity consisting of a complex of institutions comprised of a structure of offices and tasks which are conceived as existing independently of the individuals who happen to occupy them, and as persisting beyond those individuals. Writing at the time of the emergence of the modern state, Machiavelli provides significant accounts of the nature of the political role and of the rationale for political office. The Prince instructs wouldbe rulers how to gain and retain power over ‘principalities’, which are clearly states in the first of the senses noted above. But they are not understood as states in the second of those senses. The principality is, in effect, the personal estate of the prince, albeit one he is only likely to retain with the acceptance of the people. As Quentin Skinner notes: ‘In all the discussions about the state and the government of princes in the first half of the sixteenth century, there will be found scarcely any instance in which the état, Staat or state in question is unequivocally separated from the status or standing of the prince himself.’12 The flourishing of this estate is the defining purpose of the prince, and the virtues of the prince are those qualities that are conducive to such flourishing. The ability of the prince to persuade the people of his possession of these qualities – of his ‘majesty’ – is an important element in gaining popular support. The demonstrated capacity and willingness to use violence effectively are essential to the effectiveness of the prince. Within the state, the ability to enforce law, raise taxes,

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and so on, ultimately depends on being able to make credible threats to exert irresistible coercive force. And the prince must be able to deter and resist potential usurpers, from within and without. The capacity to use violence effectively is not a princely virtue merely because of its direct effects, however. ‘Majesty’ is at least in part something that exists in the eye of the beholder. As Machiavelli tells the prince: ‘Men in general judge by their eyes rather than by their hands; because everyone is in a position to watch few are in a position to come in close touch with you.13 Everyone sees what you appear to be, few experience what you really are.’14 Machiavelli sees various implications arising for the prince from this distance that most of his subjects have from his motives. Notoriously, he sees it as licensing or even demanding that the prince use immoral methods such as deception, where this is likely to lead to outcomes that benefit him, while publicly professing the highest moral standards. More generally, it means that the appearance of majesty is in fact one of the component elements of majesty. The virtuous prince is, then, a kind of virtuoso – someone who not only has highly developed skills, but impresses others through their display. There are few ways of impressing the public more effective than the bold use of violent force. The monopolization of coercive force across a territory is a precondition for the existence of legal and commercial institutions within it.15 Any society that is dependent on such institutions, then, relies on such a monopoly being held. At the same time, the monopolization of force presents clear dangers to the members of such societies. Even though it is the interests of the prince that his subjects as a group thrive, and that the rule of law be generally respected, it is a purely contingent matter whether it is better for him to promote, or damage, the good of particular individuals or groups. And given the benefits that flow to the holder of a monopoly of coercive force in a state, there is a standing temptation to those who have, or believe they have, skills in the use of violence, to overthrow the current holder and make themselves prince – and in doing so demonstrate their greater fitness for the position. A system of princely states, then, is bound to be riven by war and sedition – exactly the picture of early modern Italy we find in the pages of The Prince. In The Discourses16 Machiavelli suggests that political stability can be achieved through the erection of well-formed republican institutions. In effect, he argues that political roles should be subsumed into political offices, in order to create a state qua corporate entity. This transformation applies to the rulers but also, importantly, to the citizens. The prince attains and retains his status through a personal

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relationship with the citizens of his state. When enough of them stop seeing him as the legitimate ruler, his reign is doomed. The subjective attitudes of the citizens, then, are constitutive of political authority. The erection of political institutions means that the relationship between governor and governed is no longer personal. Just as the ruler in the corporate state takes on an office that constrains their actions, so does the citizen. The citizen is bound, for example, to accept the authority of the person who occupies the ruler’s office, even where they judge that there are others who are better fitted to occupy it, and are permitted only to act in specified ways to attempt to change the identity of that person. The two major political offices of the corporate state, then, are those of politician/ruler on the one hand, and of citizen on the other. The citizens are the public to whom the goods which the politician aims to provide should be made available. The professional ethics of politicians (or perhaps more accurately the ethics of professional politicians) clearly must deal with issues of personal corruption, given the opportunities political life presents for such behaviour and the potential harm it causes. But the focus of such an ethics should be on the structure of the institutional framework within which their office fits, and their relation to that structure. In the previous section I pointed to three (non-exclusive) reasons for making a role into an office: the need to limit the number of (wouldbe) practitioners; the need to be able to deter role-holders from abusing their skills by the threat of expulsion from office if they do so; and the guarantee of expertise given by certification. All these reasons apply to the political role. The need to limit the number of would-be practitioners of the political art follows as a matter of logic as soon as the desirability of monopolization of coercive power is accepted. And the potential for abuse of such monopolization is obvious, as discussed above. The third condition, certification, is more complex and more contentious. Machiavelli’s prince is, as it were, self-certifying – the fact that he has achieved and maintained political power demonstrates his possession of the relevant practical skills. The person who gains political power by coming to hold an office, however, is not self-certifying in this way. There are obvious reasons to want assurances that political offices will only go to those who possess the skills and attitudes necessary to occupy them effectively. At the same time, there are also good reasons not to allow those who already hold such offices – even though, presumably, they possess the relevant expertise – to determine who that

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should be. In the case of the professions, the possibility of state withdrawal or qualification of their right to control the licensing of practitioners is a deterrent to too egregious abuse of that right and other privileges. But if the right to license itself is in the hands of state officials, no such deterrent exists. One thing that obviously distinguishes politicians (at least in representative democracies) from paradigmatic professionals is that politicians gain their paid position through popular election. Thus they do not have to possess proof of expertise, such as educational qualifications or prior relevant experience. On the other hand, at least in countries such as Australia, the US and the UK, where a candidate is highly unlikely to be elected unless endorsed by a party, members of parties have a good deal of de facto control over who has the opportunity to gain election, and over the distribution of offices to those who are elected. Parties have become an integral part of the political system in modern representative democracies, and they exercise many of the functions carried out by professional bodies, filtering potential candidates for political office and providing discipline and support for those who succeed. Ultimately, however, in such systems it is the people who decide who gains and retains political office. One justification of universal suffrage in a liberal democracy, then, is that it puts control of the appointment of political officials in the hands of those who have interests in ensuring that those officials are competent and non-corrupt. Even where they have such interests, however, problems of motivation and expertise remain.17 Why should voters care about informing themselves – and how can they find out what they need to know? Again, these are difficulties that lend themselves to solution, or at least amelioration, through institutional design. In a system of adversarial politics, politicians have incentives to present and publicize evidence of their achievements and of their opponents’ failings in areas that concern their electors.18 Thus the need for strong systems of public accountability for politicians, and those they control, and for effective ways of detecting and sanctioning breaches of that system. Even with the best designed political systems, politicians must be granted areas of discretionary power. While the legislative function may be constrained up to a point by, for example, constitutional restrictions, politicians must be granted a good deal of discretion to make laws that respond to changing contingencies. The need for discretionary power is even stronger in the case of politicians in positions of supreme authority, who must have the power to act expeditiously in

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times of war and other national emergencies. The temptation to abuse such power is particularly strong in a representative democracy. Machiavelli’s observation about the distance between the motivations of their rulers and their perception is relevant here. A political leader can, for example, often tap into or mobilize popular emotions, and present herself as strong, courageous and bold by taking or threatening military action, even when doing so is not in the long-term national interest. To resist these sorts of temptations, and to understand the ways in which they should act to support and strengthen the political system, requires a degree of what might be called moral self-consciousness on the part of professional politicians. That is, they must be able to stand aside from their narrowly partisan goals and reflect on the rationale for the political institutions within which they operate.

Conclusion In the first section I specified the conditions which must hold for someone to be facing a DHS – a situation where there are powerful, consequentialist reasons for them to take an action which, according to the moral rules that are basic to ordinary morality, they ought not to do. I also claimed that holders of certain kinds of morally justified roles are particularly likely to find themselves facing DHS: they have accepted the responsibility for acting in ways that are conducive to realizing the defining end of the role, and possess skills, expertise, and so on to take actions that will so conduce, even where those actions are normally morally wrong. On this account of the way in which the demands of a role can generate DHS, the consequences which the role-holder ought to consider are those which are relevant to the achievement of the defining ends of their role. Justifying an action that normally would be considered wrong by appeal to the requirement to be prepared to get one’s hands dirty in the course of discharging the duties of that role, then, presupposes an understanding of the nature of the role itself. In the second and third sections I sketched an outline of the role of ‘professional politicians’ which suggests that this role be seen as an office within the corporate state (and more broadly within a society of such states). While there is a good deal of openness in the goals that politicians can legitimately set out to achieve, those goals, and the means that they use to achieve them, must be at least compatible with the continued existence of the institutional structure which is the condition for the

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very existence of the role of the professional politician. This might in fact mean that, on occasion, professional politicians ought not to act in ways that are likely to lead to the realization of the moral goals, commitment to which was the motivation for political involvement in the first place. Consider, for example, Walzer’s morally motivated candidate for election who ‘in order to win … must make a deal with a dishonest ward boss, involving the granting of contracts for school construction over the next four years’.19 Walzer thinks that this person should be prepared to make such a deal, since ‘his decision to run was a commitment … to do within rational limits whatever is necessary to win’.20 The question is, what are the ‘rational limits’ here. Since willingness to make such a deal must be contrary to any sane system of role morality for professional politicians (it clearly could not be universalized, for example, or publicly professed), the deal cannot be justified by appeal to the demands of that morality. In the first section I suggested that for Walzer the demand that political actors be prepared to get their hands dirty is a requirement of good faith. The only justification for an individual becoming involved in the murky world of politics is to bring about a morally good outcome. Since achieving that outcome will often be possible only by committing a moral wrong, the political actor should be prepared to commit that wrong – to get their hands dirty – when it helps achieve their end. I think that the way that Walzer presents the choice facing professional politicians, at least, is misleading. Since the state (and the system of states) is a human contrivance, its justification (if it has one) is, broadly, consequentialist. But it does not follow that the reasoning appropriate to persons whose role it is to direct the affairs of that state should be directly consequentialist. In fact, as implied above, their reasoning in many cases ought to be constrained by the obligations of their office, even if that leads to a less than optimal outcome by the lights of their ultimate moral aim. This is not, in my opinion, bad faith. Quite the opposite. It is bad faith to seek or accept an office without being prepared to act within the bounds of its powers.

Acknowledgement This is a revised version of a paper first presented at the workshop on ‘Politics and Morality’, held in August 2004 at the Centre for Applied Philosophy and Public Ethics, University of Melbourne.

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Notes 1 Niccolò Machiavelli, The Prince, trans. G. Bull, Harmondsworth: Penguin Books, 1971, chapter XV, p. 91. 2 Michael Walzer, ‘Political Action: The Problem of Dirty Hands’, in M. Cohen, T. Nagel and T. Scanlon (eds.), War and Moral Responsibility Princeton, NJ: Princeton University Press, 1974, p. 63. 3 Walzer, ‘Political Action’, p. 66. 4 Walzer, ‘Political Action’. The discussion of the candidate occurs on pp. 66–8, and of the Russian terrorists on pp. 80–1. 5 The account of the professions and professional ethics here follows and develops that given in Andrew Alexandra and Seumas Miller, ‘Needs, Moral Self-consciousness and Professional Roles’, Professional Ethics l5 (1996). 6 See e.g. Michael D. Bayles, ‘Professional Power and Self-Regulation’, Business and Professional Ethics Journal 5 (1986), p. 27. 7 Bayles, ‘Professional Power and Self-Regulation’. 8 See e.g. The Nicomachean Ethics, VI. 2, 1139a26-8. 9 See e.g. Raymond Murphy, Social Closure: The Theory of Monopolization and Exclusion, Oxford: Clarendon Press, 1988; Frank Parkin, Marxism and Class Theory: A Bourgeois Critique, London: Routledge, 1979; Randall Collins, ‘Market Closure and the Conflict of Professions’, in M. Burrage and R. Torstendahl (eds.), Professions in Theory and History, London: Sage, 1990. 10 See Julian Lamont, ‘The Ethics of Doctor Supply Restriction in Australia’, Australian Journal of Professional and Applied Ethics 3 (2001); Evan Willis, Medical Dominance, Sydney: Allen and Unwin, 1990. 11 So M. J. Petersen, for example, argues in The Medical Profession in MidVictorian England (Berkeley: University of California Press, 1978) that it was impossible to speak of the medical profession in England at all before the Medical Act of 1858, and even then, of dubious value for some time after that. Cf. Willis, Medical Dominance; A. M. Carr-Saunders and P. A. Wilson, The Professions, Oxford: Clarendon Press, 1933. 12 Quentin Skinner, ‘The State’, in Robert E. Goodin and Phillip Pettit (eds.), Contemporary Political Philosophy: An Anthology, Oxford: Blackwell, 1997, p. 9. 13 More graphically in the Luigi Ricci translation: ‘everyone can see, but very few have to feel’ (Niccolò Machiavelli, The Prince, trans. Luigi Ricci, chapter XVIII, in The Prince and The Discourses, New York: Random House, 1950, p. 86). 14 The Prince, trans. George Bull, chapter XVIII, p. 101. 15 See Tyler Cowan, ‘Law as a Public Good: The Economics of Anarchy’, Economics and Philosophy 8 (1992). 16 Niccolò Machiavelli, Discourses on the First Ten Books of Titus Livy, ed. Bernard Crick, trans. Leslie Walker, Harmondsworth: Penguin Books, 1983. 17 For a pessimistic view, see Russell Hardin, ‘Representing Ignorance’, in Ellen Frankel Paul, Fred D. Miller, Jr and Jeffrey Paul (eds.), Morality and Politics, Cambridge: Cambridge University Press, 2004. In the spirit of the ‘economic theory of democracy’ (Anthony Downs, An Economic Theory of Democracy, New York: Harper, 1957), Hardin believes that, given the vanishingly small chance that the vote of any particular person will make a dif-

Professional Ethics for Politicians? 91 ference to the outcome of an election, there is no compelling reason for voters to determine how to vote intelligently, where ‘voting intelligently’ is understood to mean voting to further one’s own interests. Hardin points to a number of instances in which popular votes have exemplified spectacular failures of intelligence in this sense. Some countervailing evidence that would seem to indicate that substantial numbers of (Australian) voters take an interest in electoral politics and discriminate between candidates where they believe that their interests are likely to be affected is presented and discussed by Murray Goot in ‘Distrustful, Disenchanted and Disengaged? Polled Opinion on Politics, Politicians and the Parties: An Historical Perspective’, in Parliament and Public Opinion: Lectures in the Senate Occasional Lecture Series 2000–2001, Canberra: Department of the Senate, 2002. 18 Recent advances in electronic communication have vastly increased the ease of two-way communication between politicians and individual voters, and hence the potential influence of voters. For a discussion of these advances and some ethical issues raised by the ways they are being used, see Peter van Onselen, ‘Private Information and Public Accountability: Political Parties’ Constituent Databases’, Australian Journal of Professional and Applied Ethics 5 (2003). 19 Walzer, ‘Political Action’, p. 67. 20 Walzer, ‘Political Action’.

6 Noble Cause Corruption in Politics Seumas Miller

There are many forms of corruption, including many types of police corruption, judicial corruption, academic corruption, and so on. Indeed, there are at least as many forms of corruption as there are human institutions that might become corrupted. My concern in this chapter is with political corruption, and with a specific form of political corruption, namely noble cause corruption. In the first section I provide a conceptual analysis of corruption,1 in the second an account of noble cause corruption, and in the third and final section I relativize the latter account to political institutions.

Corruption Corruption is fundamentally a moral, as opposed to legal, phenomenon. While many corrupt acts are unlawful – or ought to be unlawful – this is not necessarily the case. Moreover, it is evident that not all acts of immorality are acts of corruption; corruption is only one species of immorality. Consider an otherwise gentle husband who in a fit of anger strikes his adulterous wife and accidentally kills her. The husband has committed an act that is morally wrong; he has committed murder, or perhaps culpable homicide, or at least manslaughter. But his action is not necessarily an act of corruption. Obviously, the person who is killed (the wife) is not corrupted in the process of being killed. Moreover, the act of killing does not necessarily corrupt the perpetrator (the husband). Perhaps the person who commits a wrongful killing (the husband) does so just once and in mitigating circumstances, and also suffers remorse. Revulsion at his act might cause such a person to embark thereafter on a life of moral rectitude. If so, the person has not been corrupted as a result of his wrongful act. 92

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An important distinction in this regard is the distinction between human rights violations and corruption. Genocide is a profound moral wrong; but it is not corruption. This is not to say that there is not an important relationship between human rights violations and corruption; on the contrary, there is often a close and mutually reinforcing nexus between corruption and human rights violations.2 Consider the endemic corruption and large-scale human rights abuse that have taken place in authoritarian regimes, such as that of Idi Amin in Uganda and that of Thojib Suharto in Indonesia. And there is increasing empirical evidence of an admittedly complex causal connection between corruption and the infringement of subsistence rights; there is evidence, that is, of a causal relation between corruption and poverty. Indeed, some human rights violations are also acts of corruption. For example, wrongfully and unlawfully incarcerating one’s political opponent is a human rights violation; but it is also corrupting the political process. If we are to provide a serviceable definition of the concept of a corrupt action – and specifically, one that does not collapse into the more general notion of an immoral action – we need first to focus our attention on the moral effects that some actions have on persons and institutions. If an action is corrupt, then it corrupts something or someone; in my view, then, corruption is not only a moral concept, it is also a causal concept. I take it that an action is corrupt only if it has a corrupting effect on a person’s moral character, or a corrupting effect on an institution. If an action has a corrupting effect on a person’s character, it will typically be corrosive of one or more of a person’s virtues. These virtues might be virtues that attach to the person qua human being, for example, the virtues of compassion and fairness in one’s dealings with other human beings. Alternatively – or perhaps, additionally – these virtues might attach to persons qua occupants of specific institutional roles, for example, impartiality in a judge or objectivity in a journalist. If an action has a corrupting effect on an institution, then it has a corrupting effect on institutional processes and purposes, and/or on persons qua occupants of institutional roles. My concern in this chapter is with the corruption of institutions, and specifically political institutions. Accordingly, I am interested only in the corruption of persons in so far as they are occupants of institutional roles. In relation to the concept of institutional corruption, my first claim or presupposition is that an action is corrupt only if it has a corrupting effect on an institutional process, role or purpose. Note here that an

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infringement of a specific law or institutional rule does not in and of itself constitute an act of corruption. In order to do so, any such infringement needs to have an institutional effect, for example, to defeat the institutional purpose of the rule, to subvert the institutional process governed by the rule, or to contribute to the despoiling of the moral character of the role occupant. My second claim is that if an action is corrupt, then the person who performed it either did so intentionally, or he or she performed it knowing the institutional harm it would cause – or, at the very least, the person could and should have foreseen the harm it would cause. So I want to distinguish acts of corruption from what might be termed acts of institutional corrosion. An act might undermine an institutional process or purpose without the person who performed it intending this effect, foreseeing this effect or indeed even being in a position such that they should have foreseen this effect. Such an act may well be an act of corrosion, but it would not be an act of corruption. A further point here is that because persons who perform corrupt actions do so intentionally or knowingly–or at least such persons should have known the corrupting effect that their actions would have – these persons are generally speaking blameworthy. However, these persons are not necessarily blameworthy. For there are cases in which someone knowingly performs a corrupt action but is (say) coerced into so doing, and is therefore not blameworthy. So on my account it is possible to perform an act of corruption and yet not be blameworthy. My third claim concerns persons – in the sense of institutional role occupants – who are corrupted. The contrast here is twofold. In the first place, persons are being contrasted with institutional processes and purposes that might be corrupted. In the second, those who are corrupted are being contrasted with those who corrupt (the corruptors). Those who are corrupted have to some extent, or in some sense, allowed themselves to be corrupted; they are participants in the process of their corruption. Specifically, they have chosen to perform, or to refrain from performing, the actions, or omissions, which ultimately had the corrupting effects in question on them, and they could have chosen otherwise.3 In this respect, the corrupted are no different from the corruptors.4 Nevertheless, those who are corrupted and those who corrupt are different in respect of their intentions and beliefs concerning the corrupting effect of their actions. Specifically, those who become corrupted did not necessarily intend their actions to have the effect of corrupting them; nor did they necessarily foresee that they would be corrupted by their actions. Indeed, it might be the case that

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they could not reasonably have been expected to foresee that they would become corrupted. For example, a very naïve but ambitious teenage girl from an impoverished background seeking fame as a film star might begin in a limited pragmatic spirit by doing a one-off sexual favour for a likeable but manipulative film director, and end up being dependent upon the ongoing provision of sexual favours to a large number of powerful industry figures whom she finds sexually repulsive. An analogous process might take place in the case of adults who are placed in environments in which there are (say) subtle and incremental, but more or less irresistible, inducements gradually and imperceptibly to become corrupted.5 Notice that a corruptor of other persons or things can in performing these corrupt actions also and simultaneously be producing corrupting effects on him- or herself. That is, acts of corruption can, and typically do, have a side-effect in relation to the corruptor. They not only corrupt the person and/or institutional process that they are intended to corrupt; they also corrupt the corruptor, albeit usually unintentionally. Consider bribery in relation to a tendering process. The bribe corrupts the tendering process; and it will probably have a corrupting effect on the moral character of the bribe-taker. However, in addition, it might well have a corrupting effect on the moral character of the bribe-giver. Here we need to distinguish between a corrupt action that has no external effect on an institutional process or on another person, but which contributes to the corruption of the character of the would-be corruptor; and a non-corrupt action which is a mere expression of a corrupt moral character but which has no corrupting effect, either on an external institutional process or other person, or on the would-be corruptor himself. In this connection consider two sorts of would-be bribe-givers whose bribes are rejected. Assume that in both cases their action has no external corrupting effect on an institutional process or other person. Now assume that in the first case the bribe-giver’s action of offering the bribe weakens his disposition not to offer bribes; so the offer has a corrupting effect on his character. However, assume that in the case of the second bribe-giver, his failed attempt to bribe generates in him a feeling of shame and strengthens his disposition not to offer bribes. So his action has no corrupting effect, either on himself or externally on an institutional process or other person. In both cases, the action is the expression of a partially corrupt moral character. However, in the first, but not the second, case the bribe-giver’s action is corrupt by virtue of having a corrupt effect on himself.

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On the assumption that my above-stated three claims or presuppositions are correct, let me now elaborate the resulting theoretical account of actions that corrupt institutions. The notion of such a corrupt action presupposes two prior notions: 1) the notion of an uncorrupted, and morally legitimate, institution, or institutional process, role or purpose, and; 2) the notion of an uncorrupted, morally worthy person who is the occupant of an institutional role. That is, the act of corruption brings about, or contributes to bringing about, a corrupt condition of some person and/or some institution. But this condition of corruption exists only relative to: a) an uncorrupted condition, which condition is b) the condition of being a morally legitimate institution or sub-element thereof, or the condition of being a morally worthy person or at least of being a person possessed of some worthy character trait. Consider the uncorrupted judicial process. It consists of the presentation of objective evidence that has been gathered lawfully, of testimony in court being presented truthfully, of the rights of the accused being respected, and so on. This otherwise morally legitimate judicial process is corrupted, if one or more of its constitutive actions are not performed in accordance with the process as it is rightly intended to be. Thus to present fabricated evidence, to lie on oath, and so on, are all corrupt actions. In relation to moral character, consider an honest accountant who begins to ‘doctor the books’ under the twin pressures of a corrupt senior management and a desire to maintain a lifestyle that is only possible if he is funded by the very high salary he receives for doctoring the books. By engaging in such a practice he risks the erosion of his moral character; he is undermining his disposition to act honestly. On the view I am putting forward, actions are acts of corruption because they corrupt a person (or element of moral character) and/or an institution (or sub-element thereof). Moreover, the corrupt condition of the person or institution corrupted exists only relative to some moral standards, which are definitional of the uncorrupted condition of that institution, or of the moral character of persons in institutional roles. The moral standards in question might be minimum moral standards, or they might be moral ideals. Corruption in relation to a tendering process is a matter of a failure in relation to minimum moral standards enshrined in laws or regulations. On the other hand, gradual loss of innocence might be regarded as a process of corruption in relation to an ideal moral state. If the process of corruption proceeds far enough, then we no longer have a corrupt official or corruption of an institutional process or insti-

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tution; we cease to have a person who can properly be described as, say, a judge, or a process that can properly be described as, say, a judicial process – as opposed to proceedings in a kangaroo court. Like a coin that has been bent and defaced beyond recognition, it is no longer a coin; rather it is a piece of scrap metal that can no longer be exchanged for goods. An institutionally corrupt action is an action, or an element of a pattern of actions, that contributes to the despoiling of the moral character of a person qua role occupant, or to the undermining of a morally legitimate institutional process, role or purpose.6 Further, a corrupt person is a person whose moral character has been despoiled by his or her actions, and/or by interactions with others; and a corrupt institution is a morally legitimate institution, the constitutive roles, processes or purposes of which have been undermined by the actions of members of that institution, and/or by virtue of interactions with persons outside the institution. In this connection I need to make the following four points. First, I reiterate that (in general) morally responsible persons who perform corrupt actions are to some degree blameworthy for so acting. So, in the paradigm case, a person who corrupts others does so intentionally and without a good and decisive reason for so doing. Moreover, among such instances of corruption there are ones in which corruptors are culpably negligent; they do, or allow to be done, what they reasonably ought to have known should not be done, or should not have been allowed to be done. For example, a safety inspector at an industrial plant who is negligent with respect to his duty to ensure that safety protocols are being complied with might be guilty of corruption by virtue of contributing to the undermining of those safety protocols.7 There are complexities in relation to corruption involving culpable negligence that are not necessarily to be found in other forms of corruption. Consider a company official who habitually allows industrial waste products to be discharged into a river because this is the cheapest way to dispose of the unwanted products. But now assume that the official does so prior to the availability of any relevant scientific knowledge concerning the pollution which results from such discharges, and prior to the existence of any institutional arrangement for monitoring and controlling pollution. By my lights, the official is not necessarily acting in a corrupt manner. However, the same action might well be a case of corporate corruption in a contemporary setting in which this sort of pollution is well and widely understood, and anti-pollution

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arrangements are known to be in place in many organizations. While those who actively corrupt institutional processes, roles and purposes are not necessarily themselves the occupants of institutional roles, those who are culpably negligent tend to be the occupants of institutional roles who have failed to discharge their institutional obligations. Second, the corruption of an institution – as opposed to a person – does not assume that the institution in fact existed at some time in the past in a pristine or uncorrupted condition. Rather, an action, or set of actions, is corruptive of an institution in so far as the action, or actions, have a negative moral effect on the institution. This notion of a negative moral effect is determined by recourse to the moral standards constitutive of the processes, roles and purposes of the institution as that institution morally ought to be in the socio-historical context in question. Consider a police officer who fabricates evidence, but who is a member of a police service whose members have always fabricated evidence. It remains true that the officer is performing a corrupt action. His action is corrupt by virtue of the negative moral effect it has on the institutional process of evidence-gathering and evidence presentation. To be sure this process is not what it ought to be, given the corrupt actions of the other police in that particular police force. But the point is that his action contributes to the further undermining of the institutional process; it has a negative moral effect as judged by the yardstick of what that process ought to be in that institution at that time. Third, the despoiling of the moral character of a role occupant, or the undermining of institutional processes and purposes, would typically require a pattern of actions, and not merely a single one-off action. So a single hamburger provided to a police officer on one occasion does not corrupt, and is not therefore an act of corruption. Nevertheless, a series of such gifts to a number of police officers might corrupt. They might corrupt, for example, if the hamburger outlet in question ended up with (in effect) exclusive, round-the-clock police protection, and if the owner intended that this be the case. Note here the pivotal role of habits. We have just seen that the corruption of persons and institutions typically requires a pattern of corrupt actions. More specifically, corrupt actions are typically habitual. Yet, as noted by Aristotle, one’s habits are in large part constitutive of one’s moral character; habits maketh the man (and the woman). The coward is someone who habitually takes flight in the face of danger; by contrast, the courageous person has a habit of standing his or her ground. Accordingly, morally bad habits – including corrupt

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actions – are extremely corrosive of moral character, and therefore of institutional roles and ultimately institutions. However, there are some cases in which a single, one-off action would be sufficient to corrupt an instance of an institutional process. Consider a specific tender. Suppose that one bribe is offered and accepted, and the tendering process is thereby undermined. Suppose that this is the first and only time that the person offering the bribe and the person receiving the bribe are involved in bribery. Is this oneoff bribe an instance of corruption? Surely it is, since it corrupts that particular instance of a tendering process. Fourth, note that in relation to institutions, and institutional processes, roles and purposes, I have insisted that if they are to have the potential to be corrupted, then they must be morally legitimate, and not merely legitimate in some weaker sense, e.g. lawful. Perhaps there are non-moral senses of the term ‘corruption’. For example, it is sometimes said that some term in use in a linguistic community is a corrupted form of a given word, or that some modern art is a corruption of traditional aesthetic forms. However, the central meaning of the term ‘corruption’ has a strong moral connotation; to describe someone as a corrupt person, or an action as corrupt, is to ascribe a moral deficiency and to express moral disapproval. Accordingly, if an institutional process is to be corrupted, it must suffer some form of moral diminution, and therefore in its uncorrupted state it must be at least morally legitimate. So although marriage across the colour bar was unlawful in apartheid South Africa, a priest, Priest A, who married a black man and a white woman was not engaged in an act of corruption. On the other hand, if another priest, Priest B, married a man and a woman knowing the man to be already married, the priest may well be engaged in an act of corruption. Why was Priest B’s act corrupt? Because it served to undermine a lawful, and morally legitimate, institutional process, viz. marriage between two consenting adults who are not already married. But Priest A’s act was not corrupt. Why? Because a legally required, but morally unacceptable, institutional procedure – refusing to marry two consenting adults because they are from different racial groups – cannot be corrupted. It cannot be corrupted because it was not morally legitimate. Indeed, the legal prohibition on marriage between different races is in itself a corruption of the institution of marriage. So Priest A’s act of marrying the black man and the white woman was not only not corrupt; it was a refusal to engage in corruption. In the light of the diverse range of corrupt actions, and the generic nature of the concept of corruption, it is unlikely that any precise

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definition of corruption is possible. Nor is it likely that the field of corrupt actions can be neatly circumscribed by recourse to a set of selfevident criteria. Rather, we should content ourselves with the somewhat vague and highly generic definition of corruption that we have provided above; and then proceed in a relatively informal and piecemeal manner to try to identify a range of moral and/or legal offences that are known to contribute under certain conditions to the despoiling of the moral character of persons and/or to the undermining of morally legitimate institutions. Such offences obviously include bribery, fraud, nepotism, and the like. But under certain circumstances they might also include breaches of confidentiality that compromise investigations, the making of false statements that undermines court proceedings or selection committee processes or the earned reputations of public figures, selective enforcement of laws or rules by those in authority, and so on. The wide diversity of corrupt actions has at least two further implications. First, it implies that acts of corruption have a correspondingly large set of moral deficiencies. Certainly, all corrupt actions will be morally wrong, and morally wrong at least in part because they despoil moral character or undermine morally legitimate institutions. However, since there are many and diverse offences at the core of corrupt actions, there will also be many and diverse moral deficiencies associated with different forms of corruption. Some acts of corruption will be morally deficient by virtue of involving deception, others by virtue of infringing a moral right to property, still others by virtue of infringing a principle of impartiality, and so on. Second, the wide diversity of corrupt actions implies that there may well need to be a correspondingly wide and diverse range of anticorruption measures to combat corruption in its different forms, and indeed in its possibly very different contexts.

Noble cause corruption As we saw earlier, in the paradigm cases corrupt actions are a species of morally wrong, habitual actions. What of the motive for corrupt actions? We saw above that there are many motives for corrupt actions, including desires for wealth, status and power. However, there is apparently at least one motive that we might think ought not to be associated with corruption, namely, acting for the sake of good. Here we need to be careful. Sometimes actions that are done for the sake of good are, nevertheless, morally wrong. Indeed, some actions that are

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done out of a desire to achieve good are corrupt actions, namely, acts of so-called noble cause corruption. Elsewhere, I have provided a detailed treatment of the phenomenon of noble cause corruption.8 Here I simply note that even in cases of noble cause corruption – contrary to what the person who performs the action thinks – the ‘corrupt’ action morally ought not to be performed; or at least paradigmatically the ‘corrupt’ action morally ought not to be performed. Accordingly, the person who performs it is either deceiving him- or herself, or is simply mistaken when they judge that the action morally ought to be performed. So their motive, namely, to act for the sake of what is right, has a blemish. They are only acting for the sake of what they believe is morally right, but in fact it is not morally right; their belief is a false one. That is, it is not true that they are acting for the sake of what is in fact morally right. So we can conclude that corrupt actions are, at least in the paradigm case, habitual actions that are morally wrong, and therefore not motivated by the true belief that they are morally right. Here there are more complex excuses and justifications available for what might first appear to be an act of noble cause corruption. Perhaps a police officer did not know that some form of evidence was not admissible. Here the police officer’s false belief that an action is right (putting forward the evidence in a court of law) was rationally dependent on some false non-moral belief (that the evidence was admissible); and the police officer came to hold that non-moral belief as a result of a rational process (he was informed, or at least misinformed, by a senior officer that the evidence was admissible). This would incline us to say that the putative act of noble cause corruption was not really an act of corruption – although it might serve to undermine a morally legitimate institutional process – and therefore not an act of noble cause corruption. This intuition is consistent with my account of corruption. The police officer in question did perform an action that undermined a legitimate criminal justice process. However, his action was not corrupt because he did not intend to undermine the process, he did not foresee that the process would be undermined, and he could not reasonably have been expected to foresee that it would be undermined. Earlier, I suggested that acts of noble cause corruption are paradigmatically actions that morally ought not to be performed, contrary to what the actor believes. However, it is conceivable that some acts of noble cause corruption are morally justified. Perhaps the act of noble cause corruption while wrong in itself, nevertheless was morally

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justified from an all-things-considered standpoint. If so, we might conclude either that the action was not an act of corruption (and therefore not an act of noble cause corruption), or that it was an act of corruption, but one of those few acts of corruption that was justified in the circumstances. I suggest that both options are possibilities. Suppose an undercover police officer offers a ‘bribe’ to a judge for the purpose, supposedly, of getting the judge to pass a lenient sentence on a known mafia crime boss. The police officer is actually engaged in a so-called sting operation as part of an anti-corruption strategy. The judge accepts the bribe and is duly convicted of a criminal offence and jailed. The police officer offers the bribe for the purpose of achieving a moral good, convicting a corrupt official. However, I take it that we are disinclined to call this a case of corruption. On my account the reason for this is that in this context the ‘bribe’ does not have a corrupting effect; in particular, it does not succeed in undermining the judicial process of sentencing the crime boss. So this is a case in which a putative act of noble cause corruption turns out not be an act of corruption, and therefore not an act of noble cause corruption. On the other hand, suppose I bribe an immigration official in order to ensure that my friend – who is ineligible to enter Australia – can in fact enter Australia, and thereby have access to life-saving hospital treatment. This act of bribery is evidently an act of institutional corruption; a legitimate institutional process has been subverted. However, I acted for the sake of doing what I believed to be morally right; my action was an instance of noble cause corruption. Moreover, from an all-things-considered standpoint – and in particular, in the light of the strength of the moral obligations owed to close friends when their lives are at risk – my action may well be morally justified. Accordingly, my act of corruption may well not have a corrupting effect on myself. Plausibly, this explains any tendency we might have not to describe my action as an action of corruption. But from the fact that the agent was not corrupted it does not follow that the act did not corrupt. Moreover, it does not even follow that some person or other was not corrupted. Clearly, in our example, the immigration official was corrupted. Now consider a police officer in India whose meagre wages are insufficient to enable him to feed, clothe and educate his family, and who is prohibited by law from taking a second job. Accordingly, he supplements his income by accepting bribes from certain households in a wealthy area in return for providing additional surveillance and thus greater protection from theft; and this has the consequence that

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other wealthy households tend to suffer a somewhat higher level of theft than otherwise would be the case. The police officer is engaged in corruption, and his corruption has a noble cause, viz. to provide for the minimal well-being of his family. Moreover, arguably his noble cause corruption is morally justified by virtue of the moral obligations he has to provide for the basic needs of his family In this section I have argued that: a) the phenomenon of noble cause corruption is a species of corruption, and is seen to be so by the lights of my account of corruption; and b) conceivably, some acts of noble cause corruption are morally justified.

Noble cause corruption in politics From the perspective presented in this chapter, acts of noble cause corruption in politics are actions that corrupt morally legitimate political institutions, but actions that are nevertheless motivated by good ends. Such actions may be one-off actions or consist of a pattern of actions. On this account, the Watergate break-in was an act of corruption, and – assuming Richard Nixon, Gordon Liddy et al. were motivated by a desire to further the national interest – perhaps an act of noble cause corruption. Moreover, since on my general account of noble cause corruption there is room for morally justified acts of noble cause corruption, so there will be room for morally justified acts of noble cause corruption in politics. Notice that my account of political corruption presupposes that the political institution thus corrupted is in some sense and to some extent morally legitimate. As is well known, the question of what counts as a morally legitimate state is inherently problematic. For example, different political theories will deliver different verdicts on the question of the moral legitimacy of a given government. Notice also that in some states, agreed on all hands to be illegitimate, e.g. totalitarian states such as the Soviet Union under Stalin, acts that might otherwise count as acts of corruption, such as destroying voting slips cast in favour of Stalin, might not count as acts of corruption. However, when it comes to political institutions, moral legitimacy admits of degrees and in some cases slides into indeterminacy. Moreover, in a given state, some political institutions or sub-elements thereof might have a degree of moral legitimacy and others not. Within China, perhaps the sub-national government of Hong Kong has a degree of legitimacy that the Chinese-installed government of Tibet does not have.

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Some theorists of political corruption, such as Joseph Nye, claim that all corruption, including political corruption, involves the abuse of public office for private gain.9 Obviously, I reject this claim, and do so in part because it is inconsistent with the possibility of noble cause corruption. A more plausible variant of this view is that political corruption involves at least the abuse of public office, though not necessarily for private gain. Dennis Thompson is a proponent.10 Contrary to this view, acts of political corruption might be actions performed by noninstitutional actors, for example, citizens who do not hold a public office, as opposed to (say) politicians. Consider a well-intentioned, fundamentalist Christian from Florida, who breaks into the council chambers and falsifies the electoral roll in Wagga Wagga to facilitate the election of the National Party candidate, but who does so without the knowledge of the candidate, or indeed of anyone else. Dennis Thompson further argues that institutional corruption, at least in the case of political corruption, involves a political gain (as opposed to private gain), an impropriety in the provision of a service (as opposed to an undeserved service) and a link between the gain and the service that is an institutional tendency.11 I do not dispute that when these three conditions obtain there is institutional corruption. However, by my lights, the existence of all three of these conditions is not necessary for institutional corruption. Contra Thompson, and as argued above, there can be a one-off corruption of an institutional process. Moreover, I do not accept that in the case of institutional corruption the gain for which a service is provided (the motive) is necessarily a political, as opposed to a private, gain. The institutional process can be undermined (corrupted) in cases where there is a tendency for the service to be provided for private gain; so why not regard these as cases of institutional corruption? This view of the matter comports with definitions of corruption, such as mine, that do not require there to be any particular motive in order for an institutional process to be corrupted. Thus, on my definition of corruption, neither of these motives (private gain or political gain) is a necessary condition for institutional corruption. On the other hand, I do agree with Thompson that the appearance of corruption in, say, the case of a conflict of interest might be sufficient for institutional corruption, in that 1) damage has been done to a political institution by virtue of a diminution in public confidence in that institution, and 2) politicians, or other political actors in ques-

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tion, ought to known when their actions might have this effect, and therefore they ought not to perform such actions.12 A form of corruption in government involves the improper extension of a political role. Consider, in this connection, a case of alleged corruption involving the Italian Prime Minister, Silvio Berlusconi. It appears that his government used its political power to introduce a controversial law that would allow defendants to seek the transfer of their trial from one court to another, if they felt the first court was likely to be biased against them. Berlusconi’s lawyers indicated that they would avail themselves of the ‘legitimate suspicion’ law to have their client’s trial on charges of bribing Roman judges to be moved from Milan (where it is felt that the court would be biased against Berlusconi) to Brescia (where Berlusconi enjoys widespread political support). There was a suspicion that the new law was introduced by Berlusconi’s government deliberately in order to assist his defence against charges of corruption, and thereby enable him to escape prosecution. The attempt by the Italian government to introduce the legitimate suspicion law can be seen as a case where the legislative role has been used improperly to interfere with the judicial function. If so, this amounts to political corruption of a judicial process, viz. the process of determining what matters should be heard in what courts. Thus far I have been promoting the view that political corruption can be accommodated within my overall theory, or quasi-theory, of corruption and of noble cause corruption. In what remains of this chapter I want to address the claim associated with Machiavelli,13 Max Weber,14 Michael Walzer15 and others that there is something special about the role of political leaders such that engaging in noble cause corruption is somehow a defining feature of their role. Here I am assuming that these theorists are making a stronger claim than the one that I am committed to – namely, the claim that in politics, as elsewhere, there may well be morally justified acts of noble cause corruption. However, I reject the claim that engaging in noble cause corruption is a defining feature of the political role.16 This kind of claim is sometimes made in the context of a discussion of the so-called problem of dirty hands. Here it is important to note first some conceptual differences between the concept of dirty hands and the concept of noble cause corruption. The idea of dirty hands is that political leaders, and perhaps the members of some other occupations such as soldiers and police officers, necessarily perform actions that infringe central or important principles of common morality, and

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that this is because of some inherent feature of these occupations. Such ‘dirty’ actions include lying, betrayal and especially the use of violence. The first point to be made here is that by my lights it is far from clear that such acts are necessarily acts of corruption, and hence necessarily acts of noble cause corruption. In particular, it is not clear that all such acts undermine to any degree institutional processes, roles or ends. (This is compatible with such acts having a corrupting effect on the moral character of the persons who perform them, albeit not on those traits of their moral character necessary for the discharging of their institutional role responsibilities as, say, politicians, police or soldiers.) The second and related point is that some putatively ‘dirty’ actions are indeed definitive of political roles, as they are of police and military roles. For example, elsewhere I have argued that a defining feature of police work is its use of harmful and normally immoral methods, such as deceit and violence, in the service of the protection of (among other things) human rights.17 Clearly, a similar definition is required for the role of soldier. And since political leaders necessarily exercise power and – among other things – lead and direct police and soldiers, they too will participate in ‘dirty’ actions in this sense. However, such use of deceit, violence, and so on, can be, and typically is, morally justified in terms of the publicly sanctioned, legally enshrined, ethical principles underlying police and military use of harmful and normally immoral methods, including the use of deadly force. In short, some putatively ‘dirty’ actions are publicly endorsed, morally legitimate, defining practices of what I, and most people, take to be morally legitimate institutions, viz. government, and police and military institutions. I take it that the advocates of ‘dirty hands’ intend to draw our attention to a phenomenon above and beyond such publicly endorsed, legally enshrined and morally legitimate practices. But what is this alleged phenomenon?18 According to Walzer, politicians necessarily get their hands dirty. In his influential article he offers two examples.19 The first is of a politician who, in order to get re-elected, must make a crooked deal and award contracts to a ward boss. The second is of a political leader who must order the torture of a terrorist leader if he is to discover the whereabouts of bombs planted by the leader and set to go off, killing innocent people. I take it that these examples consist of scenarios in which politicians are not acting in accordance with publicly endorsed, legally enshrined, morally legitimate practices; indeed, they are infringing moral and legal requirements.

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The first example presupposes a corrupt political environment of a kind that in a liberal democracy ought to be opposed and extinguished rather than complied with. Moreover, it is far from clear why the politician’s re-election is an overriding moral imperative. The second example is hardly an example of what politicians in liberal democracies routinely face; indeed, it is evident that even in the context of the so-called war on terror such cases arise only very occasionally, if at all. I conclude that Walzer’s examples go nowhere close to demonstrating the necessity for politicians to ‘dirty’ their hands in the sense of infringing central or important moral principles. At best, the second illustrates the requirement to infringe moral principles for the sake of the greater good in some highly unusual emergencies. There might in fact be some political contexts in which central or important moral principles do need to be infringed on a routine basis, albeit for a limited time period. Such contexts might include ones in which fundamental political institutions had themselves collapsed or were under threat of collapse. Consider the following case study concerning the Colombian drug baron Pablo Escobar.20 Case study: Pablo Escobar After one of the biggest manhunts in recent history, Pablo Escobar, the notorious Colombian drugs baron, was shot dead on the roof of his hideout in his home town of Medellin, on 2 December 1993. There is some evidence to suggest that the precision shot to the head that killed him was delivered from close range after Escobar’s escape was thwarted by a debilitating initial shot to the leg.21 In short, he was very possibly executed. He was a man who from the time of his rise to power in the early 1980s had terrorized the whole nation.The hunt which lasted over four years and cost the US and Colombian governments hundreds of millions of dollars and several hundred lives, involved members of the Colombian Search Bloc, a special police unit set up to capture Escobar, and special intelligence and anti-terrorist units from the US, including elite units of the CIA, Centra Spike, Delta Force, as well as the Drug Enforecement Agency, the FBI and the Bureau of Alcohol, Tobacco and Firearms (ATF). This was not merely a hunt for the capture of a criminal – albeit an international criminal who headed the largest cocaine cartel in Colombia accounting for up to 80 per cent of the multi-billion dollar export of Colombian cocaine to the US – but all-out war. Indeed, the Colombian state, with the technical, military

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and intelligence support of the US, was fighting this war for the sake of its very survival. Declared by the Colombian government to be ‘public enemy number one’, Escobar proved to be a formidable challenge.22 For Colombia it was a challenge by virtue of the threat Escobar posed to the survival of its democratic institutions, including the government and the judiciary, and its economic infrastructure; for the US by virtue of the threat to the US’s ‘war on drugs’ posed by Escobar’s ‘export’ to the US of large quantities of cocaine and other drugs. Escobar had to be stopped by any means possible, or so it was argued. The means included the ‘dirty means’ of an unofficial alliance of the Colombian special police unit, Search Bloc, with a vigilante group or ‘civilian militia’, Los Pepes (People Persecuted by Pablo Escobar), which comprised known criminals from other drug cartels and some disaffected former associates of Escobar. In their willingness to use the same unlawful and violent means to destroy Escobar as those used by Escobar himself against his enemies, Los Pepes wreaked havoc on Escobar’s operations, killing many of his associates and members of his family, and destroying many of his estates. Arguably the richest (Forbes Magazine in 1989 listed him as the seventh-richest man in the world) and most violent criminal of recent times, Escobar rose from humble beginnings (he was the son of a teacher and a peasant) as a small-time gangster and car thief in Medellin to become the most powerful and feared drugs baron in Colombia, controlling a world-wide billion-dollar drug trade that gave him a life-style of unimaginable wealth and luxury comprising planes, helicopters, boats, vintage cars, vast estates and properties, banks and luxury residences in Colombia and throughout the world. Hacienda Los Napoles, his 7,400-acre ranch on the Magdalena river near Medellin, had its own airport, heliport, six swimming pools, several lakes and a zoo which housed elephants, buffaloes, lions, rhinoceroses, gazelles, zebras, hippos, camels and ostriches. He could sleep 100 guests at a time, and entertained them lavishly with food, music, games and extravagant parties.23 When he voluntarily and temporarily gave himself up to the authorities in 1991, he and his associates ensconced themselves in La Catedral, a luxury prison atop a mountain which Escobar had purposely built for that purpose. As it turned out, La Catedral was no prison, but a state within a state from which Estobar continued to run his drug empire and criminal activities. During his criminal reign, Colombia became a war zone of daily kidnappings, car bombs that killed and maimed indiscriminately, murders

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often preceded by torture, and bribery of the police, politicians and the judiciary. Though prevented by other politicians from taking up his office in parliament as an elected member of Congress, Escobar nevertheless had the Colombian government bribed and bombed into acceding to his demands of banning the extradition treaty with the US which would have seen him tried and imprisoned in the US for drug trafficking. His method of dealing with the authorities, or anyone who dared challenge him, came to be known as plata o plomo (silver or lead). If he couldn’t bribe those who opposed him, he had them killed. Two of the worst crimes which he was suspected of orchestrating, and which marked the beginning of his fall, were the murder of the Liberal Party candidate for the presidency, Luis Galan, a popular and charismatic politician who had vowed to rid Colombia of drug traffickers; and on the false assumption that it was carrying Galan’s successor, the downing of an Avianca airliner, killing 110 people, including two American citizens. These were fatal mistakes. Killing Galan made Escobar enemy number one in Colombia. Bringing down the Avianca airliner turned him into an international terrorist, and a legitimate terrorist target for the US. By the time of Escobar’s death, hundreds of people had been killed, including many innocent civilians, foreign citizens, police officers, judges, lawyers, government ministers, presidential candidates and newspaper editors. In the first two months of 1991 there was an average of 20 murders a day in Colombia.24 Assassinations included those of the Justice Minister, Rodrigo Lara, more than 30 judges killed after Lara’s assassination, the editor of El Espectador, for speaking out against Escobar and his drug trafficking operations, Luis Galan (the Liberal Party candidate for the presidency) and at least 457 police officers during the manhunt for Escobar (1989–93). During this period Escobar was offering 5 million pesos to each young man in Medellin who killed a police officer. When he could not stop the manhunt – and in keeping with plata o polo – Escobar offered $6 million to Colonel Hugo Martinez, the leader of Search Bloc, to bring it to an end. Martinez flatly refused. As Mark Bowden pointedly remarked, ‘sometimes the fate of a nation can hinge on the integrity of one man’.25 The above situation is one of emergency, albeit institutional emergency. So even if one wanted to support all or some of the methods used by the Colombian authorities, one would not be entitled to generalize to other non-emergency political contexts. Moreover, there are reasons to think that many of the dirty methods, for example,

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execution and the use of criminals to combat criminals – or at least the extent of their usage – were in fact counter-productive. For example, employing other criminal groups against Escobar tended to empower them. Further, such methods, although ‘dirty’, are not as dirty as they can be. In particular, methods such as execution of drug barons are directed at morally culpable persons, as opposed to innocent persons. I take it that at the dirty end of the spectrum of dirty methods that might be used in politics are those methods that involve the intentional harming of innocent persons. However, the main point to be made here is that even if such dirty methods are morally justified it is in the context of an argument to the effect that their use was necessary in order to re-establish political and other institutions in which the use of such dirty methods would presumably not be permitted. Accordingly, such scenarios do not demonstrate that the use of dirty methods is a necessary feature of political leadership.

Acknowledgement This is a revised version of a paper first presented at the workshop on ‘Politics and Morality’, held in August 2004 at the Centre for Applied Philosophy and Public Ethics, University of Melbourne.

Notes 1 This section is a modified version of Seumas Miller, Peter Roberts and Edward Spence, Corruption and Anti-Corruption: An Applied Philosophical Approach, Saddle River, NJ: Prentice-Hall, 2004, chapter 1. 2 See Zoe Pearson, ‘An International Human Rights Approach to Corruption’, in P. Larmour and N. Wolanin (eds.), Corruption and Anti-Corruption, Canberra: Asia-Pacific Press, 2001. 3 I am assuming here that in at least many cases of coercion the coerced have a choice: they could have chosen not to perform the action that they were coerced into doing. On the other hand, if the action they performed was (say) drug-induced or otherwise not under their control, then they cannot be said to have chosen to perform it in my sense. 4 Note that I have reserved the notion of corrosion for institutions, as opposed to persons. However, there are presumably processes of moral corrosion, but not corruption in my sense, for example, in the case of very young children. Such processes are entirely unable to be resisted by those subjected to them. Accordingly, it makes no sense to say that they could have chosen otherwise. The distinction between being corrupted and being the subject of corrosion is that in the former, but not the latter, one could have done otherwise. There is a further distinction between being

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5

6

7

8 9

10 11 12 13 14 15 16

17 18

19 20 21

the subject of moral corrosion and not being blameworthy for the fact that one has become corrupted. In the latter case one could have done otherwise, but it would have been unreasonable to expect one to have done otherwise. Since it is possible to be corrupted without intending or foreseeing this – indeed, without the existence of any reasonable expectation that one would foresee it – one can be blameless for being corrupted in a way that one cannot be blameless for an act of corruption. This is because a putative act of corruption would not be, according to my account, an act of corruption, if the putative corruptor did not intend or foresee, and could not reasonably have been expected to foresee, the corrupting effect of his actions. This kind of definition has ancient origins. See Barry Hindess, ‘Good Government and Corruption’, in Larmour and Wolanin (eds.), Corruption and Anti-Corruption, for a recent discussion. There is a further and related point to be made here. In general, corruptors corrupt and the corrupted allow themselves to be corrupted, without adequate moral justification for so doing or allowing to be done. I say more about this in the section on noble cause corruption. Miller, Roberts and Spence, Corruption and Anti-Corruption, chapter 5. For one of the most influential statements of the abuse of public office for private gain definitions, see Joseph Nye, ‘Corruption and Political Development: A Cost–Benefit Analysis’, American Political Science Review 61 (1967). Dennis F. Thompson, Ethics in Congress: From Individual to Institutional Corruption, Washington, DC: Brookings Institute, 1995, p. 29. Thompson, Ethics in Congress, p. 31. Thompson, Ethics in Congress, pp. 42–3. Niccolò Machiavelli, The Prince (any edition). Max Weber, ‘Politics as a Vocation’, in H. Gerth and C. Wright Mills (eds.), From Max Weber: Essays in Sociology, London: Routledge, 1991. Michael Walzer, ‘Political Action: The Problem of Dirty Hands’, Philosophy and Public Affairs 2 (1972/73). This view in relation to dirty hands is espoused by C. A. J. Coady in ‘Dirty Hands’, Encyclopedia of Ethics, 2nd edition, London: Routledge, 2001, vol. 1, pp. 407f. On the other hand, Coady seems to be endorsing a version of moral absolutism, and if so, he would not want to accept a range of what I would regard as morally justified acts of noble cause corruption. Seumas Miller and John Blackler, Ethical Issues in Policing, Aldershot: Ashgate, 2004, chapter 1. Max Weber seems to want to avoid the whole problem by defining political leadership purely in terms of one of its distinctive means, namely the exercise of physical force. Weber, ‘Politics as a Vocation’, pp. 77–8. This seems to me to be an unjustifiably narrow and negative view of political leadership and politics more generally. Walzer, ‘Political Action’, pp.164–7. This case study is taken from Miller, Roberts and Spence, Corruption and Anti-Corruption, pp. 27f. See Mark Bowden, Killing Pablo, London: Atlantic Books, 2001.

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Bowden, Killing Pablo, p. 234. Bowden, Killing Pablo, p. 29. Bowden, Killing Pablo, p. 127. Bowden, Killing Pablo, p. 91.

7 The Moral Reality in Realism C. A. J. (Tony) Coady

Despite some attempts to announce its demise, the doctrine of realism still looms large in the field of international studies and political science more generally. For some its presence is like a huge black cloud, for others it illuminates the field like a great sun. But either way (and for other less extreme metaphorical descriptions) there is a good deal of obscurity about just what realism asserts. Realists often complain that their critics distort, even caricature, their position, but this is at least in part a function of the diversity of the things affirmed as basic to their outlook by different (or even the same) realists and of the consequent opacity created by the uncertain relation between these things. Lest it seem that the difficulty is wholly in the eye of an unrealistic philosophical beholder of the landscape of political science, it may be worth noting the agreement of so eminent a political scientist as Stanley Hoffmann. ‘The first problem’, Hoffmann said recently of realism, ‘is its essential elasticity and indeterminateness’.1

Unravelling the realist critique of morality Indeed, the indications are that realism is not so much a specific doctrine but more like an outlook, or even an intellectual mood. There are certain respects in which what it most resembles is a religion, that is, a combination of an often loosely related set of beliefs, a way of thinking and responding, a sometimes desperate desire to preach to the uncomprehending heathen, and a pantheon of canonical exemplars or saints whose very diverse intellectual and practical lives are seen to embody the virtues of the religion. Like many religions it has its sects (‘neorealism’, ‘structural realism’, etc.) and its schools of doctrinal interpretation, and just as the rival Christian theological schools can 113

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sometimes seem further apart from one another than from atheists, so too with contending interpreters of realism and its demands as evidenced by the dramatic oppositions of George Kennan and Henry Kissinger on Vietnam, or Morgenthau and Nitze on nuclear weapons, or the gulf between Niebhur and Waltz on theoretical matters like the foundations of the ‘science’ of international relations. Hoffmann notes this sort of difference as ‘striking’ and ‘a little disturbing’. Again, in spite of their fulminations against various appeals to morality in foreign affairs, there is a moral passion about much realist writing that tends to reinforce the religious analogy I have suggested. Indeed, one author who has written a sympathetic account of several key realist thinkers called his book Righteous Realists.2 I make this religious analogy in no spirit of disparagement, and certainly with no suggestion that the doctrines and spirit of realism should not be taken seriously. In fact, there are certain insights in realism that seem to me to be essentially right, but they are often obscured by the rhetorical, polemical and interpretive processes within realism itself. One thing I hope to do here is to make them more transparent, and in the course of doing so move the debates about ethics in foreign affairs beyond some of the sterility that often surrounds the stark oppositions of realism and idealism. The realists’ litany of saints is a long and venerable one, dating back at least to Thucydides and St Augustine, and including along the way Niccolò Machiavelli, Thomas Hobbes, Max Weber, E. H. Carr, Reinhold Niebuhr, Hans Morgenthau, George Kennan, Dean Acheson and Henry Kissinger. Indeed, some realists, like some religious, have a very expansive, ecumenical sense of their saintly antecedents; one list includes as well as St Augustine, ‘John Calvin, Edmund Burke, James Madison, and most other classical Western thinkers’.3 When we survey the rich diversity of thought and attitude encompassed by even those figures on the more restricted list and scores of lesser lights, it is tempting to despair of the prospect of discovering any unity of belief and stance among them. But I think it is worth spelling out some strands that might bind this diverse group together even if the strands do criss-cross in the way Wittgenstein had in mind when he spoke of concepts that were united by overlapping strands of family resemblance. Here are five such elements: 1 a certain opposition to idealism and morality in foreign affairs; 2 an opposition to moral self-inflation; 3 a concern for the national interest as a focal value for foreign policy;

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4 a concern for stability in the international order; 5 a concern for close attention to the realities of power. All of these can be abundantly illustrated from realist writings. So can a certain amount of confusion about what each of them means or entails. Arthur Schlesinger Jr’s brilliant and provocative paper ‘The Necessary Amorality of Foreign Affairs’ is instructive here, especially about 1 and 2 above.4 (I shall have more to say about 3, 4 and 5 later, but how they are understood and supported must hinge on our interpretation of 1 and 2.) His article is principally a stinging indictment of the Vietnam War, but it also objects to the moral stances of some opponents of the war. Schlesinger thinks that foreign relations are actually somehow beyond morality (hence his title), but concedes rather nervously that morality cannot be banished entirely from the subject. Hence his strongest denunciations of the intrusion of morality are often followed by qualifications. So we find him posing and answering a question about the matter as follows: ‘Should – as both supporters and critics of the Indochina war have asserted – overt moral principles decide issues of foreign policy? Required to give a succinct answer, I am obliged to say: as little as possible.’ But then he adds, ‘moral values in international politics … should be decisive only in questions of last resort. One must add that questions of last resort do exist’.5 Later he says: ‘The raw material of foreign affairs is, most of the time, morally neutral or ambiguous. In consequence, for the great majority of foreign policy transactions, moral principles cannot be decisive.’6 Later, he allows none the less that ‘an irrepressible propensity to moral judgement in the field of foreign affairs exists. Nor despite the perils of moral absolutism, is it without value’.7 Similar uncertainties can be culled from other notable realists. For example, E. H. Carr, one of the few non-American writers in the modern realist canon, furiously denounces various dangers of resort to morality in foreign affairs, and characterizes a basic conflict therein as that between realism and utopianism. None the less, he is unequivocal in his belief that there is a place for morality and idealism in foreign policy, saying, ‘Utopia and reality are thus the two facets of political science. Sound political thought and sound political life will be found where both have their place’.8 Later, he states as ‘the realist view’ that ‘no ethical standards are applicable to relations between states’.9 Later still, he refers to ‘that uneasy compromise between power and morality which is the foundation of all political life’.10 What are we to make of this? Is the realist position on the place of morality just a tissue of confusions?

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Not just, though there are confusions. What I want to suggest is that realism is misunderstood, and sometimes misunderstands itself, as involving any sort of opposition to morality or ethics in international affairs. The realist target is, or should be, not morality but certain distortions of morality, distortions that deserve the name moralism. This is a name that they are sometimes given in realist writings, though often the word ‘moralism’ is used by realists as virtually synonymous with ‘morality’. Indeed, it is the failure consistently to distinguish morality from moralism, and the associated absence of any sort of theory of moralism, that largely explains the curious convolutions about the role of morality that we have already noticed in the authors cited.11 But that it is moralism and not morality that they attempt to exorcise is indicated by some of the specific targets that concern Schlesinger in his article. During his critique, he condemns not morality but a variety of what are surely distortions of it: ‘moral absolutism’, ‘moral self-aggrandizement’, ‘superior righteousness’, ‘fanaticism’ and ‘excessive righteousness’.12 Several of these are clearly vices, even if a precise account of their viciousness would need some spelling out. For instance, even the slightest sympathy with the Aristotelian theory of virtue as a mean between opposite excesses would count excessive righteousness and moral self-aggrandizement as vicious, and no person who regards him- or herself as moral would accept cheerfully the description ‘fanatic’. The epithets ‘superior righteousness’ and ‘moral absolutism’ need more discussion, but it is surely open to us to treat them as indicating ways in which morality is distorted rather than standard features of it. The same conclusion is suggested by perusal of other realist arguments. Raymond Aron, for instance, says, ‘the criticism of idealist illusion is not only pragmatic, it is also moral. Idealist diplomacy slips too often into fanaticism’.13 Clearly, this is a moral critique of a false use of morality. In Aron’s case, he associates the distortion of morality with a certain kind of idealism. It would, I am confident, be possible to bring in evidence vastly more citations from contemporary realist writers and classical ‘saints’ to support my contention that it is moralism rather than morality that is most plausibly viewed as the target of realist critique. But the more urgent task is to spell out the outlines of a concept of moralism that will make sense of realism as a critical apparatus directed at certain sorts of misguided appeals to morality. This should directly illuminate strands 1 and 2 listed above and indirectly cast light upon 3, 4 and 5.

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The varieties of moralism Our task is complicated by the fact that the topic of moralism is radically under-explored in moral philosophy, though several recent developments have made inroads on what seems to be the same or a similar project without use of the term ‘moralism’, so I can do no more than begin work on an adequate account here; none the less, the sketch that follows should be sufficient for the purpose of discerning what is true and what is not in realism. Moralism is a kind of vice involved in certain ways of practising morality or exercising moral judgement, or thinking that you are doing so. It is a vice that seems to have been unknown to the ancients. One finds nothing like it in Aristotle’s close and subtle discussion of virtues and vices, and in some respects this is rather surprising. But perhaps we need something like the circumstances of the post-Christian world that has emerged since the late eighteenth century to appreciate fully the phenomenon to which the word ‘moralism’ points. By characterizing our world as ‘post-Christian’ I do not mean to suggest that Christianity is no longer relevant to our world, nor that Christian faith is no longer a genuine option for contemporary life, but rather that the removal of Christianity from the openly dominant position it had exercised in Western social and political life for so many centuries has major implications for the nature of civil and political life, for moral and political discourse, and for the understanding of such terms as secular, profane, holy and religious. Indeed, there seems to me to be a sense in which Christianity provides some of the materials for the very understanding of moralism as a vice, for instance, in Christ’s injunction to ‘judge not that ye be not judged’ and in the advice to attend to obstructions in one’s own eye before pointing to those in the eyes of others.14 Yet it is also true that the deep divisions of belief and unbelief characteristic of so many modern societies provide a fresh challenge to the role of moral judgement in political and social life.15 In broad terms, we can say that the vice of moralism often involves an inappropriate set of emotions or attitudes in acting upon moral judgements, or in judging others in the light of moral considerations. The moralizer is typically thought to lack self-awareness and a breadth of understanding of others and of the situations in which he and they find themselves. In addition, or in consequence, the moralizer is subject to an often delusional sense of moral superiority over those coming under his or her judgement. Though these character traits are commonly associated with moralism, the vice needs to be specified in

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terms of its typical ways of working and so needs to be distinguished, for instance, from the related vice of hypocrisy. None the less, it seems unlikely that moralism will take one simple form. The following typology is offered as a suitable beginning for analysis, though a fully developed theory may require its modification, and there is, in any event, a degree of overlap between the categories. In spelling it out, I will indicate the ways in which the preoccupations of realist thinkers bear upon each category. Moralism of scope This involves seeing things as moral issues that are not, and thereby over-moralizing the universe. I once had a colleague who made staff meetings almost impossible by the tendency to detect deep moral issues in every item of business. Even the simplest question of efficient practice was transformed into an issue of justice and rights. Most of us have experienced some version of this phenomenon. Someone who views too many issues and decisions as richly moral ones may well merit the description (in the OED definition of moralism) ‘addicted to moralizing’ where ‘moralizing’ is given its old, non-pejorative sense of the bringing of a moral dimension to bear upon events, actions or works of art. In true Aristotelian fashion the vice consists of an excess on a mean. (The contrary vice would be an insufficient inclination to make such judgements, though I am not sure that we have a word for it.) This kind of criticism raises acutely questions about the boundaries of morality and morality’s claims to dominance and comprehensiveness. There is a clear connection here with some of the concerns of realists, and an echo of Machiavelli’s strictures on the inappropriateness of some moral judgements and virtues to much of the conduct required of a prince, both in his dealings with subjects and with other princes. (I do not want to endorse the specifics of Machiavelli’s critique since I think that a good deal of it is mistaken; the form of his objections, however, illustrates my point about this type of moralism.) A weak version of the scope restriction is the view that there are many matters that are too trivial for direct moral concern: whether to go to this movie or that, whether to exercise by swimming or walking – these are the sorts of things that it would usually be foolish to bring within the purview of morality (though there may be contexts in which they could have moral significance). An excessive concern for the sway of morality can bring with it crippling psychological attitudes that themselves damage the operation of moral judgement. This has

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been recognized in the tradition of Christian moral theology (and I dare say in other traditions) by the use of the term ‘scrupulosity’ to refer to the condition where someone is given to damaging self-doubt as a result of excessive worry about whether various, basically minor and harmless pursuits are morally wrong. Such people have ‘scruples’ in a theologically (and morally) pejorative sense because their worry and concern inhibit their moral growth and paralyse healthy action. (The word ‘scruple’ in ordinary language is interestingly two-faced since it has something of this negative sense, but also has a positive sense in which it is, for example, a criticism to say that someone has no scruples.) It is sometimes said that moralism is a vice that only arises in the delivery of moral judgements upon others, and this is certainly a common arena for its appearance. But the example of scrupulosity shows that moralism of scope can be self-directed: the scrupulous are moralistic about themselves. A stronger version of the restriction of the scope of morality’s claims is the thesis that morality neither exhausts nor dominates the realm of rationality even in matters of significance. In particular, so it is claimed, there may be rational demands that not only conflict with morality but override it. This brings us into some very deep waters that are, for my purposes here, best avoided; in particular, it touches on the debate about ‘dirty hands’ which is clearly relevant to realism (and to Machiavelli), and on which I have written elsewhere, but a detailed discussion of which would be beyond the scope of this chapter.16 In any case, I think it best to construe the dirty hands debate as a controversy about conditions of extremity (the politician ‘must’ order the torture of a terrorist’s child to find out the whereabouts of a bomb that threatens other innocent lives) and the realist concerns about politics and morality are as much related to significant but quotidian policy as to such dramatic emergencies.17 A further point of difference is that dirty hands decisions are usually characterized as those that involve a violation of morality that still remains pertinent to the decision and to the agent’s consciousness of what she has done and what she has become. Realists are inclined to dismiss the relevance of morality in a way that dirty hands theorists are not. Of more direct relevance to the standard realist picture is the idea that some moral concerns are rationally excluded by the dictates of prudence. This makes a point of connection with the realist theme that morality sometimes (or commonly) demands the impossible of international policy and ignores the realities of power; it also connects with the common realist opposition between concern for national self-interest and morality. It is plausible

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to suppose that one restriction on the scope of morality is that imposed by the acknowledgement that what morality apparently demands is impossible. As Stanley Hoffmann puts it: ‘a deontological ethic in which the definition of what is right is not derived from a calculation of what is possible condemns itself to irrelevance if its commands cannot be carried out in the world as it is’.18 Building on this sort of insight, realists link it to the advocacy of national interest as the primary rationale for international relations. Expecting nations to put morality ahead of national interest is, in some sense, expecting the impossible. Morality should certainly be attentive to circumstance and the way it conditions what is possible. The slogan ‘ought implies can’, though open to a number of interpretations and exceptions, certainly reminds us of the futility of demanding what is totally impossible in the circumstances, however fine it may be elsewhere. It is usually no good urging us to reason with a homicidal maniac; flight or forceful defence make much more sense. The imperative of prudence is overwhelming. Yet, for many of the situations envisaged by the realists, as indeed in the example of flight or defence, it is wrong to oppose morality and prudence. Any such opposition is complicated by different understandings of prudence. It is common in contemporary writings to treat prudence as something essentially to do with self-interest and thereby inherently hostile to the spirit of morality. But this stark contrast obscures too much. For one thing, a long tradition in moral philosophy and in ordinary thought views prudence as a part of morality, a moral virtue in its own right. In this light, prudence is not specifically concerned with the promotion and protection of self-interest, though it may encompass that. It is more a matter of moderation and of realistic appreciation in the exercise of practical judgement; indeed, on some accounts, it provides the very form of practical judgement. But we do not have to settle its exact delineation here. What is clear is that one may show imprudence, not only in dealing with one’s own affairs, but in helping and advising others, and generally in dealing with their welfare. The tendency to misjudge consequences and circumstances which characterizes imprudence is wider than mere misjudgement of one’s own interest. Adequate judging of the feasibility of action in these circumstances with these consequences, comprehending what is possible and what is not, should be part of any serious ethic, deontological or otherwise. Hoffman is right to insist upon this sort of prudence, but wrong to suggest that an ethic of rights and duties must ignore it.

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Moreover, as we have seen, the realistic appreciation of circumstances, empirical limitations and consequences need give no particular pre-eminence to self-interest, in either its individual or national forms. Indeed, a sensible appreciation of the role of power in international affairs, an appreciation insisted on by realists, may require the prudent trimming of one’s own interests. But even if prudence did have the narrow scope of concern for self-interest, it would not necessarily be opposed to morality. This is because, on some common ways of thinking about morality, an appropriate concern for one’s own wellbeing is a legitimate part of it. As such, this concern may come into conflict with other moral demands, and needs to be seen as one thing among others conditioning what is possible in the circumstances of decision and policy. But this is not peculiar to it, since various otherdirected moral concerns can equally come into conflict. Nor is there any reason to believe that even a legitimate concern for personal wellbeing must always trump other moral concerns. Sometimes it will be right to sacrifice our own advantage for that of others, notably, of course, though not exclusively, when the benefit to ourselves so sacrificed is slight and the benefit accruing to others is great. For all these reasons, the idea that it is somehow impossible to act against interest, either individual or national, must be rejected, even as we respect the relevance of possibility and demands of prudence. Nor should we neglect the fact that there are often intimate connections between self-interest and a concern for the well-being of others. Certainly these concerns can conflict, but they are often in harmony. Those philosophers who thought that the general good and individual well-being were always at some deep level in agreement were probably too optimistic about the unity of morality and of rationality.19 None the less, the coincidence of such interests is a common enough fact, even when it needs some hard thinking to discover it. And the same is true of national and supranational interests. Just as an individual can have good, self-centred reasons for promoting a general peace that benefits others (as Hobbes saw) so it will often be in the long-run interest of particular nations to promote international peace, prosperity and the reduction of world poverty. Realists are often tempted to a particularly short-sighted and narrow construal of the national interest.20 Moralism of imposition or interference Like moralism of scope, that of imposition involves an inappropriate resort to morality. The issue is not, however, the legitimacy of moral judgement in certain areas or subject matters, but rather the legitimacy

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of insisting that others conform to what may well be valid moral judgements. This is related to the liberal outlook on non-interference and recent debates about the neutrality of the state.21 But the problems raised by the idea of imposition cut much deeper than the role of the state, since there is a set of issues about what the virtue of tolerance requires that views those requirements as social and moral as well as political. This has been little addressed directly in mainstream philosophical literature, though there have been many confused approaches to it in popular debates about ‘multiculturalism’ and in some cultural studies literature. It is, however, beginning to receive serious philosophical attention. Important features needing scrutiny are: 1) the degree of certainty that can attach to one’s moral judgements and the relation of this to responses to the moral judgements of others; 2) the moral importance of respecting other people’s moral judgements as a tribute to their dignity as moral agents, and the limits to this; 3) the degree to which making moral judgements about the behaviour of others has any significance beyond the aim of improving one’s own character and behaviour (and protecting oneself and others from their harm-causing); 4) the extent to which certain expressions of moral judgement betray faulty estimates of one’s own self-importance and role in the lives of others, and a connected incapacity for moral selfcriticism; and 5) the degree to which acting on moral judgements about the behaviour of people from other cultures shows a culpable disrespect for their culture. A full discussion of moralism of imposition will, of course, have to scrutinize more carefully the idea of ‘imposition’ itself since its employment in popular and theoretical contexts is riddled with confusions.22 One of the major confusions here is that engendered by the stance of moral relativism in its various forms. One of the least attractive, but highly influential forms is that of simple cultural relativism (SCR) which makes it seem as though the only route to tolerance is by denial of the validity of any cross-cultural or supracultural moral judgements. In fact, support for tolerance, in any of its five aspects mentioned above, is unlikely to come from imprisoning moral validity within cultures since most cultures have embodied deeply intolerant norms, and advocacy of tolerance requires resort to subtle and complex reasoning and insight that goes beyond parochial standards. Nor is it persuasive to claim that relativism somehow leads to tolerance, even if it does not logically support it, since the idea that my moral values have no need to answer to independent criteria of reason may simply unleash my will to power, a point that the late, unlamented Benito Mussolini saw clearly.23 Robustly tolerant practices

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spring from a vigorous human virtue that can be recommended to all people, not from some supposed incapacity to think beyond the boundaries of one’s own social conditioning. In addition to this, SCR is prone to many intellectual difficulties. It is, I believe, ill supported by the principal arguments adduced on its behalf – notably the arguments from divergence and from the need for a framework – but I have no space to show that now. (It has, in any case, been argued decisively by others.) SCR also involves a simplistic treatment of cultures as wholly unified entities, ignoring the diversity of moral outlooks within even the simplest cultures, and makes the possibility of moral advance and reform incoherent. In its anxiety to avoid the condemnation of other cultures’ values, it also makes it impossible to praise or learn from them. More sophisticated versions of relativism have been developed in response to these difficulties, and they allow that some moral beliefs are better than others, that reason has a place in developing moral views and that there are ways of legitimately criticizing at least some moral views of other cultures in a fashion that is not parochial.24 But such sophistication makes cultural relativism and other forms of relativism irrelevant to the broad view of imposition that we are considering and that has influenced many realists. These more elaborate theories offer no support to such dramatic views as Morgenthau’s, for instance, who triumphantly quotes Edmund Burke as saying: ‘Nothing universal can be rationally affirmed on any moral or any political subject.’25 If this is itself, as it seems, an affirmation on a moral or political subject, then its lack of rationality hardly commends it to anyone, least of all realists who tend to put a premium on rationality. In particular, it undermines the realist obsession with the rationality of the concern for the national interest.26 Hence I will take it that imposition is a narrower notion which involves some degree of force, coercion or disrespect for autonomy, though the operation of that force, coercion or disrespect may be subtle. It is thus itself to be condemned where appropriate on moral grounds. There need therefore be no imposition involved in forming the judgement that some other person or group’s behaviour is immoral, nor need there be in telling them that it is. This is especially true if the verdict is requested, for it is surely absurd to see ordinary examples of moral advice as impositions. Even where advice is not sought and is unwelcome, the giving of it need not be impositional; there is a world of difference between writing a private letter of protest at another’s bad behaviour and sending in the Marines. Of course, speech acts, including those with moral content, can be improperly

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coercive or disrespectful, but they are nor necessarily so – it all depends on the way they are done. The idea that any communication of a moral judgement to another party, especially where the judgement is adverse, must be impositional, seems dependent on some version of simple cultural relativism.

Moralism of abstraction In both common discourse, and, increasingly, in academic writings, people are often criticized for operating morally at too abstract or lofty a level to achieve realistic engagement with the world of action. Sometimes the objection to the lofty principles or ideals is that they are too universal for the diversity of the world and of agents, sometimes it is that they are too rationalistic for the emotional, intuitive, concretely responsive agents that we are, sometimes that they are too simplistic in their formulation, or sometimes that they are incapable of realization, but the general drift is that the abstract apparatus of morality (or sometimes, moral theory) essentially cannot satisfactorily fit the world it is supposedly made for. Machiavelli’s advice to the prince to ‘learn how not to be good’ and to shun various virtues (in certain contexts) because they will lead to ruin is based partly upon a profound challenge to certain underlying assumptions inherent in most moral outlooks, and partly upon a confusion of morality with simplistic moralistic distortions of it of the kind here considered. The latter can be seen in some of Machiavelli’s complaints about the inappropriateness of virtues like generosity in a prince. He claims that the generous prince lavishes gifts and bounty, thereby emptying his coffers and encouraging insurrection. But the lesson to be drawn is not that virtue is inappropriate for a prince, or even that this virtue has no place, but that the proper exercise of virtue is highly sensitive to circumstance. Generosity will display different features in different contexts. Instead of requiring miserliness, as Machiavelli suggests, what is appropriate to the prince is a proper frugality (without which generosity makes little sense). Machiavelli’s criticism also raises the important question of roles. Much realist criticism of the employment of morality emphasizes the distinctive tasks of rulers or politicians, and the ways in which the sphere of operations in which they are involved differs so much from that of other roles. The moralizing that realists object to is precisely that which covers reality with an undifferentiated moral blanket, instead of cutting the moral cloth to fit the different roles that agents play. So Dean Acheson writes:

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As one probes further into the moral aspects of relations between states, additional causes for treading warily appear. A little reflection will convince us that the same conduct is not moral under all circumstances. Its moral propriety seems to depend, certainly in many cases, upon the relationship of those concerned with the conduct. For instance, parents have the moral right, indeed duty, to instil moral and religious ideas in their children and punish error. Ministers, priests, rabbis, and mullahs have much the same duties to their flocks, including that of correcting heresy, when they can make up their minds what it is. But these same acts on the part of public officials in the United States would be both immoral and a denial of the fundamental rights of the citizen.27 This concern for the difference that roles make is sometimes itself generalized to mark a distinction between the public and the private. Private morality is all very well in its place, but its dictates and inhibitions are quite out of place in politics. Sometimes, the thesis is the more restrictive one that they are out of place in foreign affairs. The attention to roles required, however, is more sensitive to moral realities than the crude contrast of public and private. This contrast is useful for some purposes, but in the present context it is too artificial and blunt for the issues that need to be confronted. The usual points about how the role of statesman makes a difference to what one is obliged and entitled to do can also be made about such roles as parent or friend which are clearly on the private side of the divide, or about the role of teacher which straddles the distinction. Of course, the arguments will point to different obligations and entitlements in the different cases. Here I am merely interested in structural similarities in the argument for roles in both the private and public domains. There is an obvious truth in the idea that roles make a moral difference, even if Acheson’s contrasts are too simplistic. But that truth is not something that somehow negates broad moral assessments since we need an overarching moral rationale for the existence of roles and the special permissions and duties that they involve. This is obviously true of conventional or ‘socially constructed’, roles but it is also true in more complex ways of natural roles, like mother or friend. If the imperatives and permissions associated with roles were not under moral control, then those related to embezzler and burglar would have the same status as those of doctor and lawyer. By contrast with crime, medicine and the place it occupies in our lives is morally supported by the significance of healing, and the surgeon’s entitlements to cut people

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up and her duty to maintain the confidentiality of patients’ personal details arise from that value (as well as from complex matters of consent). Similar considerations clearly apply to the law and policing. The detailed operation of role moralities can be challenged by criticizing the connection of the duties and permissions with the broader moral purposes of the role (as some lawyer privileges might be rejected as failing to serve justice or the rights of the accused) and they may be overruled by other moral considerations, as when confidentiality is outweighed by the need to prevent a disaster. Acheson is right to point to role differentiation, but wrong to imply (as he seems to) that there is no room for general moral critique of the operation of roles, especially political roles. Some lofty moral criticism (and some abstract moral theorizing) may fail to take full account of the differentiation and its significance, but this cannot imply that the norms that operate in a role (including the role of international diplomat or foreign secretary) are immune to criticism that draws its resources from fully informed general moral perspectives or, for that matter, from suitably nuanced moral theory. Absolutist moralism This is closely related to the moralism of abstraction, and might have been treated under that head, but it has certain distinctive features that license separate discussion. As we saw above, the charge of ‘moral absolutism’ is brought by Schlesinger, and it is a charge echoed by other realists. The term ‘absolutism’ needs to be handled carefully. Where it is opposed to ‘relativism’ then anyone who rejects various forms of moral relativism will be an absolutist, but this is not usually what people like Schlesinger mean by the term, and, if they do, then they are likely to inherit some of the problems discussed earlier in connection with cultural relativism. It is better to oppose ‘relativism’ to ‘objectivism’ and reserve ‘absolutism’ for the view that some moral prohibitions hold, come what may. We can then see the realist objection to absolutism as an objection to a certain sort of moral inflexibility. Now it may be that there are some moral prohibitions that are absolute, but it is important to note that any plausible version of this outlook holds that there are very few of them. So, it may be that the intentional killing of the innocent or even the infliction of torture is absolutely wrong, in this sense, while it remains that many other serious prohibitions, such as those against lying, promise-breaking and confidentiality, are open to exception. With these qualifications, the charge of moralism in this form amounts to an objection to inflexibil-

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ity or rigorism in the application of moral categories and it is akin to the moralism of abstraction discussed earlier. Moralism of deluded power This is less a distorted form of moral judgement or understanding than a distorted belief in the power of moral utterances and moral stands, often accompanied by a sense of self-righteousness. Moralism of this sort is the mistaken, or at least overconfident, belief that appeals to moral standards, ideals and principles will have by themselves powerful effects in altering behaviour. Realists oppose this belief and phenomena associated with it because they think that it ignores the realities of international behaviour, and in particular the realities of power and self-interest. It can also far too often provide a camouflage, wittingly or unwittingly, for the promotion of interests that have little to do with morality. This can be seen vividly in George Kennan’s denunciations of the politics of moral rhetoric. The following is taken from Kennan’s ‘Morality and Foreign Policy’, in which he calls for ‘the avoidance of what might be called the histrionics of moralism at the expense of its substance.’ He continues: By that is meant the projection of attitudes, poses and rhetoric that cause us to appear noble and altruistic in the mirror of our own vanity but lack substance when related to the realities of international life. It is a sad feature of the human predicament, in personal as in public life, that whenever one has the agreeable sensation of being impressively moral, one probably is not.28 This catches both the delusional belief in the efficacy of mere highsounding words and the self-deceptive element involved in the selfimportance so often characteristic of moralism. Again, this realist emphasis is instructive and might usefully be brought to the attention of many of the world’s leaders today when overblown moral (and sometimes religious) rhetoric is so prominent. But Kennan is not denouncing sober moral talk or sensible moral judgement on world affairs, as is clear from his final point that the agreeable sensation of being moral is a bad indicator of the presence of true morality. His strictures are against a form of moralism not morality. There is an element of morality that is often a specific target of realist complaints but that I have not treated explicitly so far. This is reliance upon ideals. Here, as elsewhere, realists tend to shoot pretty indiscriminately, and from the hip, seldom pausing to distinguish ideals from

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other moral categories. In this, they are seduced perhaps by the idea that all morality is somehow idealistic, especially in the context of power politics. But ideals form only a part of morality, and a puzzling and philosophically ill-explored part at that. Ideals appear special in several ways. First, they seem to contain an essential ingredient of the remote, possibly unachievable; certainly they stand in opposition to the strong tendencies of the present state of things. There is even a philosophical tradition that they are essentially unrealizable. Given this sort of emphasis, it is not surprising that realists would regard them as falling prey to moralism of abstraction. Second, they can appear to belong to a part of morality that is more easily viewed with a relativist eye. Your ideal of asceticism need not be mine, for I may live the life of a (moderate) bon vivant, but we are neither of us immoral in our divergent attitudes. Or so it may seem. I do not want to defend or criticize such relativism (or perhaps it would be better called pluralism) here; it is enough to note the initial plausibility of such pluralism, because it helps us think of the promotion of ideals as falling under the heading of morality of imposition. If the binding nature of ideals is up to the individual or group that accepts them, then policies driven by ideals will more readily come under the strictures of moralism of imposition. If insistence upon ideals can be categorized as moralistic in these two ways then it is not surprising that it is widely viewed as harmful, even by non-realists like Isaiah Berlin.29 Whether ideals must inevitably be categorized in this fashion is another matter and my own view is that ideals need not be moralistic. Some ideals, perhaps many, have a universal remit and their ‘unrealizability’ need not be at odds with feasible implementation of policies inspired by them. The pursuit of ideals need be neither fanatical nor imprudent, though all too often it is. But support for my position on ideals must await another occasion. It should suffice here to show that the realist critique of ideals fits into the framework of objections to moralism that I have sketched. Any wholesale rejection of ideals for international relations in a realist spirit seems to me mistaken, but exhibition of that mistake would require a full account of the nature of ideals, for which we have no space.

Conclusion I hope to have shown that, properly understood, the doctrine of realism has something to teach about the role of morality in international affairs. Broadly that lesson is: beware of moralism. It is a salutary

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lesson, not of course restricted to foreign relations, but particularly significant there, because the stakes are often so high. I have tried to show none the less that some of the typical realist claims about what are actually moralistic policies and in what their moralism consists are highly debatable. Realist prescriptions for avoiding moralism are sometimes useful, sometimes not. It is folly, and sadly a folly to which realists are prone to succumb, to see the only alternative to moralism to lie in some form of national egoism. Recognition of the dangers of moralism in the international (or national) arena is itself morally driven and needs the response of a healthy, prudent, moral understanding. A proper concern for national well-being will have a place in such a response, but only one place amongst others. The right replacement for moralism is not national self-interest, but a suitably nuanced and attentive international morality.

Acknowledgement My thanks to the participants in the Centre for Applied Philosophy and Public Ethics workshop on ‘Moralism and Casuistry’, held at the University of Melbourne, August 2001, from which this chapter emerged, and also to Ned Dobos for research assistance and help with the editing. A longer version of this chapter was first published as C. A. J. Coady, ‘The Moral Reality in Realism’, Journal of Applied Philosophy, vol. 22 (2005), no. 2, pp. 121–36. Copyright © 2005 Society for Applied Philosophy. Published by Blackwell Publishing. Reprinted by permission.

Notes 1 S. Hoffmann, World Disorders: Troubled Peace in the Post-Cold War Era, Lanham, MD: Rowman & Littlefield, 1998, p. 59. 2 J. H. Rosenthal, Righteous Realists: Political Realism, Responsible Power, and American Culture in the Nuclear Age, Baton Rouge and London: Louisiana State University Press, 1991. 3 E. W. Lefever, Moralism and US Foreign Policy, Washington, DC: The Brookings Institution, 1973, p. 397. 4 A. Schlesinger, ‘The Necessary Amorality of Foreign Affairs’, Harper’s Magazine, August 1971. 5 Schlesinger, ‘The Necessary Amorality of Foreign Affairs’, p. 72. 6 Schlesinger, ‘The Necessary Amorality of Foreign Affairs’, p. 73. 7 Schlesinger, ‘The Necessary Amorality of Foreign Affairs’, p. 75. 8 E. H. Carr, The Twenty Years Crisis 1919–1939: An Introduction to the Study of International Relations, London: Macmillan, 1962, p.10. 9 Carr, The Twenty Years Crisis, p. 153.

130 C. A. J. (Tony) Coady 10 Carr, The Twenty Years Crisis, p. 220. Although Carr is often taken to be a realist, he is perhaps better seen as a ‘fellow traveller of realism’. He is sympathetic to what he takes realism to assert, but thinks it goes a little too far in leaving no place for ‘utopian’ ethics. 11 Kenneth W. Thompson is one of the few who makes an explicit distinction between morality and moralism and gives a brief account of what the distinction might be. Citing Morgenthau and Kennan, he defines ‘moralism’ as ‘the tendency to make one moral value supreme and to apply it indiscriminately without regard to time and place’. See K. W. Thompson, Moralism and Morality in Politics and Diplomacy, Lanham, MD: University Press of America, 1985, p. 5. As we shall see, this is far too simple, and possibly misleading, an account of moralism. 12 Schlesinger, ‘The Necessary Amorality of Foreign Affairs’, pp. 73–5. 13 R. Aron, Peace and War: A Theory of International Relations, trans. Richard Howard and Annette Baker Fox, Garden City, NY: Doubleday, 1966, p. 307. 14 Robert K. Fullinwider, ‘On Moralism’, in C. A. J. Coady (ed.), What’s Wrong with Moralism? Oxford: Blackwell, 2006, may be seen as informed by these Christian insights. 15 This challenge is explored more directly in Arthur Kuflik, ‘Liberalism, Legal Moralism and Moral Disagreement’, and Duncan Iverson, ‘The Moralism of Multiculturalism’, both in Coady (ed.), What’s Wrong with Moralism? 16 See C. A. J. Coady, ‘Dirty Hands and Politics’, in Robert Goodin and Philip Pettit (eds.), Companion to Contemporary Political Philosophy, Oxford: Blackwell, 1993; ‘Dirty Hands’, in Lawrence C. Becker and Charlotte C. Becker (eds.), Encyclopedia of Ethics, 2nd edition, London: Routledge, 2001, vol. 1. 17 It should be noted, however, that there are those that dissent from the view that ‘dirty hands’ problems arise only in extreme situations. See, for instance, Michael Stocker, Plural and Conflicting Values, Oxford: Oxford University Press, 1990, chapter 1. 18 Hoffmann, World Disorders, p. 152. Hoffmann’s statement of the point, however, tends to elide two different issues: the way in which moral injunctions are grounded or derived and the feasibility of applying them in current circumstances. 19 I am thinking here particularly of Plato in the Republic and rather differently of Hobbes in the Leviathan. 20 A particularly good example of this narrowness can be found in Felix E. Oppenheim, The Place of Morality in Foreign Policy, Lexington, MA, Lexington Books, 1991. Oppenheim restricts national interests entirely to what he calls ‘material benefits’ such as territorial integrity (or political sovereignty), military security, and economic well-being. 21 See Kuflik ‘Liberalism, Legal Moralism and Moral Disagreement’, and Iverson, ‘The Moralism of Multiculturalism’. 22 For recent work on tolerance and its complexities, see, for instance, Julia Driver, ‘Hyperactive Ethics’, The Philosophical Quarterly 44 (1994); David Heyd (ed.), Toleration: An Elusive Virtue, Princeton, NJ: Princeton University Press, 1996; and Michael Walzer, On Toleration, New Haven, CT: Yale University Press, 1997. For the most influential modern statement on state tolerance of divergent ‘conceptions of the good’ see John Rawls, Political

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27 28

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Liberalism, New York: Columbia University Press, 1993. For a classical statement of early liberal defences of political tolerance, see John Locke, Letters on Toleration, Byculla: Education Society’s Press, 1867. Mussolini’s words are worth quoting in full: ‘Everything that I have said and done in these last years is relativism by intuition. If relativism signifies contempt for fixed categories and men who claim to be the bearers of an objective, immortal truth, then there is nothing more relativistic than fascist attitudes and activity … From the fact that all ideologies are of equal value, that all ideologies are mere fictions, the relativist infers that everybody has the right to create for himself his own ideology and to attempt to enforce it with all the energy of which he is capable.’ Quoted in H. Veatch, ‘A Critique of Benedict’, in Julius R. Weinberg and Keith Yandell (eds.), Problems in Philosophical Inquiry, New York: Holt, Rinehart and Winston, 1971, p. 27. See, for instance, Simon Blackburn, ‘Relativism’, in Hugh LaFollette (ed.), The Blackwell Guide to Ethical Theory, Malden, MA: Blackwell, 2001; David Wong, Moral Relativity, Berkeley, CA: University of California Press, 1984; and Neil Levy, ‘Descriptive Relativism: Assessing the Evidence’, Journal of Value Inquiry 37 (2003). Quoted by Michael Joseph Smith, Realist Thought from Weber to Kissinger, Baton Rouge: Louisiana State University Press, 1986, p. 164. Michael Smith correctly points out that the Burke dictum would count equally against Morgenthau’s own advocacy of the universal importance of the pursuit of the national interest. Dean Acheson, ‘Morality, Moralism and Diplomacy’, The Yale Review XLVII (1958), p. 488. G. F. Kennan, ‘Morality and Foreign Policy’, in Kenneth M. Jensen and Elizabeth P. Faulkner (eds.), Morality and Foreign Policy, Washington, DC: United States Institute of Peace, 1991, p. 69 (originally published in Foreign Affairs 64 [1985/86]). See Isaiah Berlin, ‘The Pursuit of the Ideal’, The Crooked Timber of Humanity, London: John Murray, 1990.

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Part II

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8 Patriotism: Its Moral Credentials James Gaffney

When I was a young child we moved from New York City to a pleasant street in a modest suburb. At about the same time, the US entered the Second World War. Suddenly, patriotism was everywhere, and shed over our lives an atmosphere of warm sympathy, spontaneous cooperation and unaffected generosity. Then one morning I went out early and saw on the next street that something strange had happened at a neighbour’s home. The house belonged to a childless elderly couple who encouraged me and my friends to play at will on their carefully groomed lawn despite the meticulously tended garden that surrounded it. They offered us lemonade and biscuits, which our parents told us we might accept, and treated us with a kind of courtliness that made us feel very grown up. Today, incredibly, their garden was mangled and trampled; the rose-covered shelter where we drank our lemonade was pulled down and smashed; a lamp was shattered; the front door was boarded over. And words were painted across the front of the house in big untidy letters. They read: ‘America First! The Patriots!’ I ran home. But as I told my parents I could see they already knew. They said it was a terrible thing and tried to explain. Mr and Mrs Marigo had gone away. And they were not childless. Their children, grown up and living in California, had been put in a special kind of prison, and our neighbours had gone, voluntarily, to be in the prison with them. No, neither they nor their children had done anything wrong. Our government was putting them and many others in prison because they were Japanese-Americans, even though born or naturalized US citizens.1 The people who vandalized their house apparently hated them because we were at war with Japan. Knowing my own family included German-Americans and my best friend was an ItalianAmerican, it was hard to reassure me that ‘the patriots’ would not do 135

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the same to them, since we were also at war with Germany and Italy. For weeks afterwards I never passed that house without feeling a completely new kind of sadness mixed with a completely new kind of anger. For longer than that, I could not hear the word patriot without feeling a completely new kind of confusion. Those feelings still return sometimes, as when residential neighbourhoods are obliterated by something called Patriot Missiles or people are imprisoned without charge or trial by something called The Patriot Act.

The word ‘patriot’ Patriot, historical dictionaries tell us, was originally a neutral designation for one who occupied an ancestral homeland, the place of his or her ‘fathers.’2 It easily took on an affective connotation of devotion to that community. Behaviour exhibiting such devotion in any notable degree was accordingly called patriotic. Patriotism referred to the feeling combined with actions that expressed it. A patriot came to be thought of as one who possessed patriotism to an uncommon degree. Curiously, though, for most of its history, the word was sufficiently ambivalent to require the adjective good in order to be evidently laudatory. Afterwards, indeed until the twentieth century, its use as a term of admiration often evoked cynicism. Thus Dr Johnson, who in his lexicon soberly defined a patriot as ‘one whose ruling passion is the love of his country’, also famously remarked that ‘patriotism is the last refuge of a scoundrel’. So devalued was the term by the nineteenth century that even politicians shunned it. Walpole, as British Prime Minister, is quoted by Macaulay as observing that ‘the most popular declaration which a candidate could make on the hustings was that he had never been and never would be a patriot’. Several factors brought the term into disfavour. More important than the merely pompous and hypocritical uses to which it was put was the diversity of its socio-political reference. For ‘my country’ meant quite different things to different parties. For some it was their town or region, including exasperated colonies, and patriotism could mean proud local resistance to imperial control by a distant authority. For others, it could mean outraged opposition by a whole mass of ‘common’ people to the impositions and pretensions of an overbearing government. For still others, it meant absolute submission to government, especially of kings and dictators, considered superior to criticism or complaint. It might also mean the comprehensive glorification of one’s own country in supercilious contrast to foreign peoples and

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places. Although the concept of patriotism may include the tranquil, unchallenged appreciation of one’s home territory, the word itself is nearly always employed in circumstances of conflict or competition. These different perspectives find lyrical expression in patriotism’s official hymnody. Compare, for example, the British obeisance to exalted monarchy in God save our noble Queen, the French savouring of revolt against ‘tyranny’s bloody standard’ in La Marseillaise (understandably suppressed under Napoleon) and the proclamation of the pre-eminence of German national unity in Deutschland, Deutschland über alles. The US national anthem is distinctive in focusing so intensely on the flag that its historical setting becomes a mere backdrop. It is regularly demonstrated by mischievous surveys that many Americans have no clear idea of what historical event is alluded to by the song’s reference to ‘bombs bursting in air,’ often assuming it must be the War of Independence rather than the little remembered war of 1812. Thus, unlike the European anthems referred to, the Star Spangled Banner implies no political ideology, associating the flag simply with ‘freedom’ and ‘bravery’. This peculiarity may presage that infatuation with the flag which seems characteristically American. In the US, the ebb and swell of patriotic fervour can be roughly measured by the number of flags visible on buildings, vehicles and apparel. When it is high, limousines and pick-up trucks travel the highways with banners streaming in the wind. Merchants drape their premises with flags to attract shoppers. Political office-holders and office-seekers wear lapel pins in the form of the flag, as though their national allegiance might be in doubt. And, since 1917, legislators opportunistically propose amending the US Constitution to exclude from the right to free speech any desecration of the flag.3 Often, flag desecration is itself an expression of one of the other kinds of patriotism, whose claim to that label is effectively pre-empted.

Patriotism and international violence Given the polyvalence of the term ‘patriotism’ throughout its history, it is noteworthy that only one circumstance seems able to override populist and regional differences and foster a patriotism of pure submission to government, often combined with condescending, contemptuous or hostile attitudes towards other countries. That circumstance is external violence, actual or anticipated. The US predilection for flags is not confined to the Stars and Stripes. The country’s most

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aggressive regional patriotism belongs to those southern states that lost the Civil War. Here the claim to an independent culture that survived military defeat is asserted by displaying the flag, or modified versions of the flag, of the secessionist confederacy. Such displays convey a reminder that preservation of black slavery was a major issue of the Civil War, and are therefore inseparable from connotations of racism. Ostentatious flaunting of the Confederate flag enjoys strong popular support, especially among crypto-racists. It is highly resistant to moral, political, social or economic objections. Yet as national flags proliferated in the days following the terrorist attacks of 11 September 2001, Confederate flags swiftly receded from view. One patriotism eclipsed another. What the most cogent civil arguments could never achieve international violence quickly brought about – temporarily, of course. At about the same time professors at the University of Teheran observed that in that institution where criticism of the current Iranian government had long been intense and widespread, an unprecedented mood of patriotism was generating protestations of loyalty to that same government. Of the explanation they had no doubt. It was not any re-evaluation of the government. It was the contemptuous and menacing way their nation had been referred to by the President of the United States. Significantly, Bush had explicitly made friendly overtures to the Iranian ‘people’ even while demonizing their political leaders. The distinction fell on deaf ears. Foreign threat succeeded instantly where government intimidation had constantly failed, turning cynical dissenters into indignant loyalists. Bush should not have been surprised. His presidency, disapproved by the majority of his constituents, had gained virtual immunity from criticism in virtue of an assault by foreign terrorists. Legislators promptly conceded a military carte blanche and sharp curtailment of civil liberties. The press ceased to snicker at a lacklustre administration and lapsed into what the former dean of the White House press corps has described as ‘patriotic coma’. Urgent official warnings to be ‘ready’ for new attacks – though at no specified places or times – discouraged any relapse into normalcy. Everywhere there were flags, and with the flags placards, stickers and ribbons delivering the unanswerable imperative ‘Support Our Troops’, as though uncritical adherence to a bellicose policy were a kind of courtesy owed to those likeliest to suffer and die for it.

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Patriotism’s moral status Recent developments of this kind remind us of something about patriotism that, especially in modern times, has reshaped questions about its moral quality. Is it morally virtuous? Is it morally vicious? Is it neither – morally neutral? Is it sometimes one and sometimes the other? In earlier centuries these questions were typically answered along lines of political ideology. Loyalists deplored the patriotism of rebels, aristocrats the patriotism of egalitarians, imperialists the patriotism of colonials, etc. Usually, in ideological conflicts, one side managed to monopolize the idiom of patriotism, forcing its adversaries to disown and discredit it. Efforts by critics to assert a counterclaim to patriotism, requiring, as they do, subtle distinctions, proved rhetorically ineffectual. In modern times, however, the main conscientious objection to patriotism has not been political. It has been the belief that it impedes and discredits honest moral scrutiny of war. This antipathy to patriotism had a redoubtable champion in the author of War and Peace, whose literary fame was accompanied by a moral authority that was no less international and whose devotees were widespread and in many places closely organized. Younger admirers like Gandhi carried his influence beyond European and Christian culture. His influence on the Ukrainian Zionist mystic Aaron Gordon prompted the original kibbutz foundation at Deganya in what is now Israel. Tolstoy devoted his later years entirely to religious and moral didacticism, which his disciples propagated with zeal and ingenuity. His denunciations of patriotism in these writings stimulated and in considerable measure shaped the modern debate. Tolstoy assumes throughout that patriotism is an attitude towards one’s own people in contrast to other peoples: theoretically, a courageous readiness to bear all costs in defence against aggression. But he believed that its practical meaning had long since degenerated into virulent prejudice: A very definite feeling of preference for one’s own people or State above all other peoples and States, and a consequent wish to get for that people or State the greatest advantages and power that can be got – things which are obtainable only at the expense of the advantages and power of other peoples or States. It would therefore seem obvious that patriotism as a feeling is bad and harmful, and as a doctrine is stupid. For it is clear that if each

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people and each State considers itself the best of peoples, they all live in a gross and harmful delusion.4 Because ‘it leads all who possess it to aim at benefiting their own country or nation at the expense of every other’, patriotism is, in Tolstoy’s view, a principal cause of war. Such war might arise either from direct military aggression or from abuses prompting retaliation. Tolstoy’s condemnation of such behaviour is rooted in the biblical injunction, so often repeated by Jesus, to love one’s neighbour as oneself, reinforced by insistence on forgiveness and non-retaliation. Tolstoy embraced this not on any ecclesiastical authority (he boasted of his excommunication from the Church), but as self-evident to conscientious inquirers. Thus understood, its secular equivalent is the socalled Golden Rule which appears not only in the Bible but in many unrelated cultures as epitomizing fundamental morality.5 Supposing, as Tolstoy did, that moral norms hold equally for individuals and collectivities, patriotism becomes simply a magnified, potentially ruthless egotism.

In praise of the patriotic standpoint For the most part, later writers on this subject have tended to concede that Tolstoy’s conclusions would be largely correct if his definition of patriotism were adequate, but to insist that the word’s more benign meanings require a more moderate judgement. An interesting, and curious, exception was an essay by Alasdair MacIntyre, responding to the question ‘Is Patriotism a Virtue?’6 His answer is strongly affirmative, even though his understanding of patriotism may not be very different from Tolstoy’s. In any case, he has no patience with any ‘watering down’ of patriotism, which ‘thus limited in scope, appears to be emasculated’. This may be because the concept has been reduced to ‘a set of practically empty slogans’, or, more interestingly, because ‘in some of the most important situations of actual social life … the patriotic standpoint comes into conflict with the standpoint of a genuinely impersonal morality’. That is almost precisely Tolstoy’s objection to patriotism, and a reminder that MacIntyre appears to oppose not only Tolstoy’s conclusions but his most fundamental premises. For MacIntyre, the ‘standpoint of impersonal morality requires an allocation of goods such that each individual person counts for one and no more than one’. But ‘the patriotic standpoint requires that I strive to further the interests my community and you strive to further those of

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yours’. As for Tolstoy’s gravest objection to patriotism, MacIntyre readily asserts that ‘patriotism entails a willingness to go to war on one’s community’s behalf’ when ‘large interests’ are at stake. There would thus seem to be no possibility of constructive argument between Tolstoy and MacIntyre, because their difference is so fundamental. What for Tolstoy is the ultimate ethical norm for all human behaviour simply overrules MacIntyre’s ‘patriotic standpoint’. MacIntyre frankly acknowledges ‘two rival and incompatible moralities, each of which is viewed from within by its adherents as morality as such’. MacIntyre is candid about what he means by patriotism and about how international behaviour would be morally judged by patriots. A patriot will approve conduct disadvantageous to another nation as long as it benefits his or her own. A patriot of the other nation will do the same. And both will base their judgements on what they view respectively as ‘morality as such’. But is it possible to view one’s own national morality as ‘morality as such’ without viewing antagonistic moralities as inferior? And can one do that rationally without appealing to some supranational moral standard? Again, in cases of conflict between nations committed to mutually independent moralities, is there no way that a citizen of a third country could morally judge the conflict? MacIntyre’s ‘patriotic standpoint’ thus admits a multiplicity of concrete moralities, each held as absolute by its national adherents. In the perspective of more conventional thinkers, this involves rejecting that universality which is widely regarded as essential to the very idea of ethics. On a more practical plane, it dooms to futility all international moral discourse occasioned by conflicts of interests. Another important question is raised by MacIntyre’s position. If the patriotic standpoint requires me to further my nation’s interests at whatever cost to other nations, does it also require me to further my nation’s interest at whatever cost to myself? Without quite saying that, MacIntyre implies something not unlike it when he observes that ‘good soldiers may not be liberals’ and that ‘the political survival of any polity in which liberal morality had secured large-scale allegiance would depend upon there still being enough young men and women who rejected that liberal morality’. Once again we meet a conflict of moralities that admits no ethical resolution. Adherents of ‘liberal morality’ embrace moral principles that share no common ground with the ‘patriotic standpoint’, precluding meaningful argument. Patriots must simply decide whether to tolerate them or repress them, basing the decision solely on what best serves their nation’s interest.

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MacIntyre’s devotion to the ‘patriotic standpoint’ is associated with his understanding of a country as something more than an internationally recognized sovereign state or a society of persons subject to the same government. In this he reflects the common recognition that nationhood is something more than jurisdiction, and that the difference resides in shared attitudes, beliefs and practices. More than a century ago, Henry Sidgwick, while affirming this view, warned that ‘the implications … are liable to be obscured by attempts to give them great definiteness’, considering it ‘impossible to name any particular bond of union … which is essential to our conception of a NationState’ and suggesting that different nations cohere in quite different ways.7 Subsequent attempts, having approached no agreement, seem to commend this diffidence. MacIntyre, however, stipulates that a country must be a national community formed by a shared narrative that furnishes not only an interpretation for its past, but also a projection for its future. He maintains on that basis that patriotism depends on understanding ‘the enacted narrative of my own individual life as embedded in the history of my country’. It is questionable that many real people who claim patriotism as the motive for their conduct satisfy these definitional requirements. But if they do not, MacIntyre’s essay has limited relevance to public discussion of patriotism’s moral status. MacIntyre has generated no school of thought about the morality of patriotism. Even politicians who rely on patriotism to facilitate their designs, far from acknowledging any exclusive concern for their nation’s interests, regularly claim that their foreign policies are beneficial to all concerned, or at least to such sympathetic categories as the ‘civilized’, the ‘freedom-loving’ or the ‘oppressed’. Even the most self-serving national policies typically imitate capitalist ideologues by promising an eventual ‘trickle-down effect’ on less fortunate neighbours. The very hypocrisy of much of this rhetoric bears witness to an awareness that among most populations, ‘impersonal morality’, ‘liberal morality’, indeed Tolstoy’s kind of morality, cannot yet be set aside with political impunity.

Moderate, blameless patriotism MacIntyre, however, did not only provide an extreme alternative to Tolstoy’s judgement of patriotism. He also stimulated exploration of a possible middle ground between those positions. A strong brief for such middle ground was Stephen Nathanson’s ‘In Defense of Moderate Patriotism’. Nathanson readily concedes that moral outrage like

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Tolstoy’s is often well deserved, but he rejects Tolstoy’s definition of patriotism as ‘exclusive desire for the well-being of one’s own people’. Nathanson insists that it need not be exclusive and he asks why it should be considered morally blameworthy if it ‘leads people to do good things on behalf of their country but always within the limits of what is morally permissible’.8 As a rhetorical question, this comes very close to question-begging. If it is not a rhetorical question, it comes very close to tautology. But the form of the question reminds us that Nathanson is not really arguing that patriotism is a virtue, but only that it is not invariably a vice, that it can sometimes claim innocence. Here, I believe, Nathanson takes a position many thoughtful people would find attractive. He tries to commend this position by comparing patriotism to family loyalty, supposing that the latter incurs no moral blame as long as it respects other moral constraints in dealing with those outside the family. Such arguments from analogy can be illuminating or misleading, depending on the relevant points of comparison. But as indicated earlier, the term patriot is not typically applied to persons who prosaically discharge the duties of their citizenship, pay their taxes, obey the laws, even cast their votes, etc. Family loyalty, on the other hand, does not, nowadays and in my part of the world, suggest anything beyond decent conformity to the claims of kinship. In times and places, however, where the family comes closer to being the basic political unit, hostile, predatory and vindictive behaviour towards other families is common, and the familial counterpart of patriotism, whatever that might be called, would raise concerns similar to Tolstoy’s. Efforts to foster more universal moral (or legal) standards have often been thought to depend on reducing the autonomy and prestige of families. Families, as most of us now know them, are politically very different from nations. Most importantly, they typically exist within nations where they are restrained from mutually abusive treatment by both legal constraints and social mores. But as Hobbes pointed out, that ‘state of nature’ marked by reciprocal predation, overcome by the coercive power of the state, remains easily observable in international relations.9 Perhaps under a truly international Leviathan patriotism would be rendered as innocuous as family loyalty. That is not a prospect favoured by ‘patriots’, but otherwise the analogy merely beguiles. It has beguiled another writer, Jeff McMahan, who proposes a methodological assessment of patriotism based on competing analogies:

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It seems that nationalism and patriotism are in some respects analogous to familial loyalty, but are in other respects analogous to racism. A deeper investigation of these analogies might help to illuminate the problem of determining the scope and limits of justified national partiality.10 McMahan’s second proposed analogue may gain appeal from the cognition that racism has often been blended with the most abhorrent patriotisms, most notoriously in German Nazi ideology. But such recollections also remind us that racism can do its worst only with the connivance or blatant condoning of political power. In my own country, despite liberal legislation, anti-black racism is by no means extinct. But, outside our most retrograde local settings, it no longer dares claim to be patriotic and its power to injure has been impressively reduced. At the same time there are signs that a new racism is on the rise, targeting Middle Eastern ‘types’. Even though formally disavowed and discountenanced by national government, such racism insinuates a strong claim to be patriotic and thrives in so far as the claim is accepted. But in that case the operative patriotism is precisely the kind Tolstoy denounced, deriving its moral toxicity once again from international violence. Patriotism often motivates the unfair treatment of ‘outsiders,’ and often depends on a false myth of inherent superiority. So does racism, which probably always depends on such a myth. Sexism is not very different. Nor are the many ‘ism’-less types of religious bigotry. The great difference with patriotism is its affiliation to a lethally powerful organization that acknowledges no human authority superior to its own and may offer unfalsifiable claims to superhuman approbation. Unlike familial loyalty, which sins only when it exaggerates, these ‘isms’ are inherently reprobate. ‘Mild’ or ‘moderate’ racism, sexism and religious bigotry are merely less nasty, and even when socially impotent, hurtful to the minds that harbour them. In the course of its long history, the word patriotism has often referred to perfectly conscionable and even admirable attitudes. Those other words never have; they were conceived and born as pejoratives, and even those whom they best characterize do not welcome them. Although these comments may cast doubt on Paul Gomberg’s choice of ‘Patriotism is Like Racism’ for the title of his article, his argument does not depend on the analogy, but only concludes that, morally speaking, one is as bad as the other.11 He finds unpersuasive Nathanson’s case for a benignly moderate patriotism. Recognizing that

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chronic bellicosity is what opponents of patriotism most deplore, he looks closely at how the ‘moderate patriot’ might justify war. Only, says Nathanson, ‘if compromise is impossible or conflict is unavoidable’. But to Gomberg it seems that the impossibility of compromise is very hard to establish short of actual aggression, whereas a mere readiness to defend oneself against hostile violence is not what patriotism typically means. As for Nathanson’s second condition, that ‘conflict is unavoidable’, it carries the disquieting implication that, given actual conflict, the moderate patriot will eventually join or at least support the fighting, albeit with regret. But in that case, all that a bellicose government needs to do is to instigate violence, whether by firing the first shot or by subtler provocations, in order to get moderate patriots marching shoulder-to-shoulder with immoderate ones. Recent instigation by the US of major war by pre-emptive assault justified on grounds that have since been falsified show this to be no merely academic or hypothetical concern. Gomberg is no foe of bona fide national defence or of supporting national traditions and institutions. But he finds no reason why enlightened moral universalists should oppose these things. They would consider it a matter of common sense that communities differ and that their members are usually best qualified to make and tend their institutional arrangements. But that would not impede their recognizing duties to assist, in certain circumstances, members of other communities, and exercising sympathetic restraint in dealing with them.

Patriotism and ethical universalism Gomberg also entertains the possibility that, so to speak, morality begins at home, because universal moral principles require ‘social norms that bind people together, and … create special relationships with corresponding social duties’. But he finds in history no suggestion that patriotism, however moderate, actually renders this service. The problematic relationship between patriotism and moral universalism derives from our history. Universalism arose fairly recently in human societies, perhaps first in philosophies and religions of hellenistic society. The parable of the Good Samaritan is a typical expression of the rejection of nationalism that characterized Christian universalism. This remained the dominant ethical ideal in Europe until the rise of the nation-state and, later, of conscious

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nationalism in the eighteenth century. There were various efforts to reconcile nationalism and patriotism with the tradition of universalism. Efforts at reconciliation are essentially conceptions of human history that patriotism helps to realize universal well-being or human rights. This positive estimate of patriotism can be derived either from an optimistic view that patriotism is a stage in our progress toward a more universal moral regard or from a pessimistic view that patriotism is the closest most of us can get to consciously practicing universal moral ideals. I am suggesting that neither the pessimism nor that particular optimism is warranted: a genuine universalism is possible, but only as a result of a struggle against patriotism and nationalism.12 The first centuries of the Common Era did indeed see an impressive spread of moral universalism, especially in Stoicism and early Christianity. The latter, however, also introduced a political theology that endowed civil rulers with a divine mandate which forbade resistance. Ernest Fortin has even argued that, under the influence of St Augustine, ‘Christianity does not destroy patriotism but reinforces it by making of it a religious duty’.13 This question is complicated by the fact that, from the fourth century, Christianity was the civil religion of an empire that encompassed most of the known world. It is further complicated by the commitment of Christianity to a proselytism that moved unabashedly from persuasion to coercion. Christians’ treatment of Jews and Muslims in the Middle East and in Spain, and of indigenous peoples in newly discovered lands, can be reconciled with ethical universalism only on the basis of peculiarly Christian dogmas. And apart from certain marginal sects, Protestantism typically deferred to the political agendas of its civil patrons. The era most receptive to an ethical universalism transcending civil loyalties was the Enlightenment. But it was also the era of that ‘conscious nationalism of the eighteenth century’ which, according to Gomberg, stifled the aspirations of ethical universalism. As the noted historian of nationalism Hans Kohn has pointed out, ‘the “fathers” of modern nationalism, Jean-Jacques Rousseau and Johann Gottfried von Herder, were at the same time cosmopolitans or internationalists’, ‘the new nation-state preserved at its beginning the cosmopolitan pathos of the Enlightenment’ and even ‘in the 1840’s the intellectuals often felt in many cases no antagonism between their nationalism and the claims of internationalism’.14

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Gomberg’s point, however, is not lost, as Kohn continues: The concept of nationalism as it changed between 1840 and 1890 is striking: by 1890 nationalism ceased to be regarded as a democratic revolutionary movement of the people; it had become a predominantly conservative or reactionary movement, frequently representing the upper classes against the people, and it was strongly opposed to all internationalism. Its ideal was, by the end of the century, an exclusive, self-centered, closed society.15

Two kinds of American patriotism In the light of this comment, it is interesting to review the reflections on American patriotism recorded by that country’s astute foreign observer Alexis de Tocqueville. Writing around 1840, he finds two kinds of patriotism.16 One, which he calls ‘instinctive,’ is a warm, sentimental and naively boastful affection for a homeland. It can subsist in any polity, and in France, he wryly observes, even enabled a people helplessly subject to an arbitrary monarch to declare proudly, ‘we live under the most powerful king in the world’. ‘This patriotism’, he remarks, ‘impels men to great ephemeral efforts’, but ‘having saved the state in time of crisis, it often lets it decay in time of peace’. The other, called ‘reflective’ and ‘rational’, to which he attaches great political value, is an energetic, participatory and almost proprietary interest in the country’s prosperity and improvement. This kind of patriotism, which he acclaims as one of democracy’s greatest successes, ‘is engendered by enlightenment, grows by the aid of laws and the exercise of rights, and in the end becomes, in a sense, mingled with personal interest’. Nowhere does Tocqueville suggest that the America he visited exhibited the kind of patriotism, xenophobic, militant and overbearing, that incurred the outrage of Tolstoy a half-century later. Tocqueville’s distinction between two kinds of patriotism may prompt sobering thoughts in today’s America, where two phenomena are constantly repeated. One is the brash, volatile, flag-waving patriotism that erupts at every suggestion of foreign threat and uncritically endorses official belligerence, only to fade away when the orchestrated clamour subsides. The other is a steady diminution of public interest in participatory citizenship, combined with a steady alienation of the governed from their government. Ever-diminishing minorities bestir themselves even to vote in public elections, while politicians ironically exploit civic inertia by promising to protect the people from the very

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government they represent. As voters dwindle, lobbyists multiply, until legislators count dollars more anxiously than ballots. ‘Government of the people, by the people, and for the people’ remains a cherished relic of Lincolnian oratory. But ‘Government is not the solution, it’s the problem’ is embraced without irony as the wisdom of a modern presidency. Of Tocqueville’s two patriotisms, the ‘enlightened’ one he most admired is pathetically languishing, while the ‘instinctive’ one maintains its whimsical course.

Virtue or vice? My spontaneous answer to the question of whether or not patriotism is virtuous is the same kind of negative one given by Tolstoy and Gomberg, because what I hear called patriotism in my own country is nearly always the sporadically pugnacious, morally myopic chauvinism that they deplore. The word does indeed seem narrowed to that meaning. Great undertakings for the nation are called patriotic only when closely associated with military action, and critics of such action are sure to be dismissed as unpatriotic. Efforts to stigmatize as unpatriotic the refusal to vote have fallen invariably on deaf ears. Foreign assistance, unless it is military, is never called patriotic no matter how urgent, strenuous or courageous it may be. Hardly anyone denies that the Second World War was patriotic. But hardly anyone suggests that the Marshall Plan was. Nor is the word applied to the most altruistic and public-spirited efforts in behalf of public health, public education, civil liberties or environmental soundness. Constructive and performing artists, however public and generous their contributions, acquire patriotic credentials only when they celebrate or entertain the troops. If, as Horace decreed in his Ars Poetica, the determinant, rule and standard of discourse is solely usage, then the modern usage of patriotism, at least in my own country, has little bearing on virtue. There was a time, within my memory, when pejorative terms like chauvinism and jingoism were often applied and always resented. The fact that they are almost never heard now raises a suspicion that distinguishing between abuses and unobjectionable uses of patriotism is no longer a matter of much interest. Nevertheless, that word has in the past denoted some harmless and helpful attitudes like those examined by Tocqueville. Could that become the case again? If so, two things would have to happen. The first is that those harmless and helpful attitudes would have to reappear with sufficient prominence to require a popular label. And the second is that the word itself would have to

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expand its usage to serve as that label. For I have already suggested that the current entrenched militant usage does not support the broad, innocuous dictionary definition of ‘love of country’. Although both things would please me, I attach great importance to the first and not much to the second. It may be that in a protracted season of untroubled peace and confident security, one of the word’s old meanings could be resurrected and reapplied, but such prospects seem millenarian. The first thing, though, just might represent a more realistic hope. An approach to it was suggested long ago by the philosopher William James, in a paper presented at a conference devoted to world peace.17 Its title, ‘The Moral Equivalent of War’, was taken up in the rhetoric of two US presidents, Kennedy and Carter, both of whom were dedicated to an ideal of voluntary service by private citizens. Kennedy’s bestknown realization of that ideal is the still active, government-funded Peace Corps, putting helpful skills to work in the poorest, underdeveloped nations. Among Carter’s many initiatives, his Habitat for Humanity, privately funded, continues to provide great numbers of substantial, attractive houses for the poor of the US and other countries. These are precisely the kinds of undertakings that James hoped might furnish a ‘moral equivalent of war’. That President Johnson’s well-conceived and quite effective ‘War on Poverty’ did not get associated with this idea resulted from his involvement in the most dispirited phase of the Vietnam War. The phrase itself expresses James’ unhappy acknowledgement that, at least in his country, heroism, with its admiring connotations of uncommon virtue – self-discipline, courage and generosity – was increasingly looked for only in military settings. James was prepared to admit that one of the motives for soldiering was decidedly moral, an eagerness to enlist in undertakings that demanded and encouraged self-sacrifice for the sake of others, and he recognized some of the pride taken in military service as justifiable pride in tested and proven moral virtue. What distressed him was that such virtue was ominously linked to that lethal business of warfare which constantly transgresses the limits of justice and, indeed, of rationality. Might it not be possible, he asked, to habituate a people to perceiving, acclaiming and emulating the heroic virtue of those among them who bravely faced and overcame other threats than those of armed forces, who stood resolute guard against other dangers than unfriendly neighbours? Surely the virtue displayed in such undertakings is as real and visible as any to be found in soldiering. And surely the propensity to moral corruption is far less. Moreover, many of the benefits

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achieved by such activities are hard to confine within national borders and easily felt and appreciated in foreign countries. I was reminded of this not long ago in Costa Rica, where young people unaffectedly ascribed patriotism to environmental projects which also enjoy great international esteem and support. In the US the most vigorous flagwavers are at best tolerant of ‘tree-huggers’. But then I remembered that other peculiar thing about Costa Rica, unlikely to be widely imitated: its constitutional renunciation of a standing army. Whether or not, even in a country where public opinion is never considered impervious to advertising, public relations ingenuity could accomplish the transformation James envisaged, even the most partial success would improve matters. The same might be said of efforts to revive that ‘reflective patriotism’ exhibited in the exercise of civic responsibility and civic opportunity that Tocqueville admired. The term democracy has been used so interchangeably with the term freedom that its active connotations have been largely forgotten. If a reversal of this trend should occur, I would expect it to begin well below the national level, in more local political settings where it remains easier to see across the distances between people and government. Is there encouragement for speculation in the recent adoption by a number of American cities, of the guidelines of the Kyoto treaty that their national government rejected? But as things are, at least in my part of the world, patriotism remains a word applied almost invariably, and certainly most emphatically, to attitudes of international distrust and undertakings of international violence sanctimoniously encouraged by government. They are taken up by many with a kind of blind faith, and by many more from a fear of the consequences of affronting such blind faith. Most often they are, as Tolstoy said, ‘stupid and immoral’. They do, as Tocqueville said of his ‘unreflective’ patriotism, sometimes accomplish momentous things, but leave most things at the mercy of undetected or unexamined forces. And, as with Tocqueville’s obsequious masses under the ancien régime, they still offer some of us the grotesque gratification of boasting that we have the most powerful ruler in the world.18

Acknowledgements An earlier version of this chapter was published as James Gaffney, ‘Patriotism: Virtue or Vice?’, Philosophy and Theology, vol. 8, no. 2 (1993), pp. 129–47. The present, revised and expanded version is reprinted by permission.

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Notes 1 On 27 March 1942, President Roosevelt’s Executive Order 9066 authorized the internment of California’s Japanese-Americans in ‘relocation centers’ which he himself once called ‘concentration camps’. Nearly 2,000 died and more than 5,000 were born in them. 2 For the history of the word, and accompanying literary illustrations, I rely on The Compact Edition of the Oxford English Dictionary, Oxford: Oxford University Press, 1971, s.v. ‘Patriot’. 3 The current proposal of a 28th Amendment, approved by the House of Representatives on 22 June 2005, still needs a two-thirds vote in the Senate and ratification by three-fourths of the states. It would grant Congress ‘power to prohibit the physical desecration of the flag of the United States’. 4 Leo Tolstoy, The Kingdom of God and Peace Essays, London: Oxford University Press, 1936, p. 547. 5 Leviticus 19:18 was adopted by Jesus and interpreted in a universalist sense by his parable of the Samaritan in Luke 10:3–36. The formulation of the golden rule in Luke 6:31 and Matthew 7:12 is very similar to that of Rabbi Hillel (Shab. 31a), who likewise calls it ‘the whole law’. Comparable texts are prominent in classical, Hindu, Buddhist, Confucian, Islamic and many secular writings. 6 Alasdair MacIntyre, Is Patriotism a Virtue? Lawrence, KS: University of Kansas Press, 1984. 7 Henry Sidgwick, The Elements of Politics, London: Macmillan, 1891, pp. 213–14. 8 Stephen Nathanson, ‘In Defense of Moderate Patriotism,’ Ethics 99 (1988/ 89), p. 538. 9 Thomas Hobbes, Leviathan, Harmondsworth: Penguin Books, 1968, pp. 187–8. 10 Jeff McMahan, ‘War and Peace’, in Peter Singer (ed.), A Companion to Ethics, Oxford: Blackwell, 1991, p. 385. 11 Paul Gomberg, ‘Patriotism is Like Racism’, Ethics 101 (1990/91). 12 Gomberg, ‘Patriotism is Like Racism’, p. 150. 13 Ernest Fortin, ‘St. Augustine’, in Leo Strauss and Joseph Cropsey (eds.), History of Political Philosophy, Chicago: University of Chicago Press, 1987, p. 200. 14 Hans Kohn, ‘Nationalism’, in Philip P. Wiener (ed.), Dictionary of the History of Ideas, New York: Scribners, 1974, vol. 3, pp. 325–7. 15 Kohn, ‘Nationalism’, p. 328. 16 Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer, Garden City, NY: Doubleday, 1969, p. 235. 17 William James, ‘The Moral Equivalent of War’, Essays on Faith and Morals, ed. Ralph Barton Perry, New York: Meridian, 1962. 18 Just after I completed this chapter, Hurricane Katrina hit my part of the US, closing my university, destroying my home and its contents, and wreaking havoc over hundreds of miles and for hundreds of thousands of people. Rescue efforts, private and public, displayed remarkable generosity and frequent heroism. Here was the most perfect imaginable instance of James’ ‘moral equivalent of war’. Media coverage of the events and political

152 James Gaffney rhetoric about them was incessant. Yet not once did I hear the language of patriotism applied to any of these magnanimous, strenuous and perilous exertions in behalf of country and countrymen and women. Not even when they were carried out by the military!

9 Political Complicity: Democracy and Shared Responsibility Janna Thompson

Suppose that the leaders of your state are committing a wrong: they are fighting an obviously unjust war; or they are oppressing a minority group; or refusing to contribute to the alleviation of suffering in another part of the world. In a democracy one way that citizens can put a check on the activities of their leaders is to vote them out of office. Election time is coming round and you have to decide whether you have a moral obligation to go to the polls and cast your vote against the party in power. You reason as follows. I have a moral responsibility to do an action, X, if and only if by doing X there is a good chance that I will make a difference to what happens: that is, if it is probable that my doing X will be instrumental in bringing about a desired event, Y. It is extremely unlikely that by voting in the election I will be instrumental in bringing about the fall of the government. If the government is favoured by a majority, then my vote will not cause the government to lose the election; if the opposition is favoured by the majority, then my vote will not make a difference to their victory. There is a small chance that my vote will make all the difference between Y occurring and not occurring, but this possibility is so unlikely that I cannot be expected to take it seriously. Therefore, I have no moral obligation to vote, and no one can regard me as morally blameworthy if I do not. Another way in which citizens in a democracy can sometimes influence what leaders do is by protesting against their actions. But you reason as follows. If not many people are prepared to protest against the government’s acts, then my protest is not going to be effective. Our leaders are not going to pay attention to a small group of protesting citizens. On the other hand, if so many people protest that the government has to take heed, then whether or not I participate is not going 153

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to make any difference. There is a small chance that my protest could make a difference. If I were a media personality or someone with great authority, I might be able to sway a significant number of people. But given that I am just an ordinary citizen, it is so unlikely that my protest will have an effect, that I can reasonably discount this possibility. Therefore, I have no obligation to protest against the injustices of my government. We can present the same kind of reasoning when questions arise about the responsibility of an individual for a collective action. Your democratic government has committed an injustice and you have done absolutely nothing to counter it. However, you insist that you bear no responsibility for the fact that the injustice is continuing. Nothing you did or could have done would have made a difference to the outcome. How can someone be blamed for failing to act, you ask, when it was reasonable to believe that nothing he could have done would have made a difference? For that matter, how can a person who takes action deserve credit when nothing she did made a difference? Looked at in this way, you seem no more responsible than is the active citizen who did vote against the offending government and did protest against the injustice. Indeed, it seems that your responsibility for what your government does is no greater than that borne by the subject of a dictatorship who cannot vote or protest against the injustices of his government for fear of being severely punished. These ideas about responsibility seem morally obnoxious. We do want to regard the passive citizen as complicit in injustice. We think that he is responsible in a way that the active citizen is not. We are inclined to blame citizens of a democracy if they do nothing when their government is committing injustices. We certainly think that citizens of a democracy bear a much greater responsibility for the injustices of their government than subjects of a dictatorship bear for the bad deeds of their government. On the other hand, the reasoning that produces the obnoxious conclusions seems like simple common sense. We do not generally hold individuals responsible for failing to act when nothing they could do is likely to affect the outcome.

The problem of many hands ‘Great social tragedies are made more likely due to our attitudes and our failures to act collectively’, says Larry May.1 The obvious objection to the ‘common-sense’ reasoning illustrated above is that it is a recipe for political passivity. If everyone reasons as you do – if no one thinks

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that they have a moral obligation to vote against their leaders or to protest against their activities – then the leaders will stay in power and will continue to commit the injustice. You might object that this effect, though regrettable, is not your fault. You have no control over what others do; if they choose to reason as you do, and as a result don’t vote or protest, then you would not have accomplished anything by voting or protesting yourself; if they don’t reason and act as you do – if they do vote and protest – then you would not have made a difference by voting or protesting yourself. To counter your reasoning, it is not enough to deplore what would happen if everyone reasoned as you do. We have to explain what is wrong with your assessment of your moral responsibility. It might be argued that your reasoning is problematic just because it fails to take into consideration what other people might or might not do. May describes an experiment which measures the likelihood that a person will report an emergency, given what he or she believes to be her situation. If the person believes that she alone knows of the emergency, then the likelihood of her immediately reporting it is 85 per cent. But only 31 per cent rush to report it when they believe that it has been witnessed by four others.2 When people think that their action is not going to be necessary, they are less likely to act. But for this reason, a conscientious agent, who knows that this is so, ought to act just in case no one else does so. She should probably act even if there are 100 witnesses to an emergency – especially since it seems likely that the greater the number of witnesses the more inclined they will be to think that they don’t have to do anything. So, if you do think that that other citizens might reason as you do, then you ought to vote. There are several problems with this train of thought. One is that you can be pretty sure that not all citizens will reason as you do. Some will vote out of habit; some because they enjoy participating in elections; some because they are faithful to their party; some because they have not reasoned as clearly as you and believe that they can make a difference. Some just think they have a duty to vote. The other problem is that there is a significant difference between the emergency case and the problem at hand. If no one else has reported the emergency, then your call will make all the difference, and it is this thought that spurs the conscientious agent to act. But given that it is improbable that no one else will vote, your voting has a negligible chance of making a difference; and if you alone protest against government injustices, your act is not going to make a difference.

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The situation of the citizen is thus different from the situation of witnesses to an emergency, and the reasons for thinking that the latter have a duty to act do not apply to the former. The situation of the citizen is also different from that of the person in the following example. You are a bomber pilot who is being sent to bomb Dresden. You think this operation is wrong, but you reason as follows. ‘If I refuse to go, someone else will be sent in my place, and I will have accomplished nothing by my act. If I have my crew drop the bombs in a field rather than on the city, this will also make no difference – given the number of bombs that are being dropped. Therefore, I have no moral reason for refusing to participate.’ A person whose moral position is not strictly consequentialist is likely to protest against this way of reasoning. If you participate, your actions will destroy buildings and kill innocent people. You will contribute in an obvious way to the destruction of the city and its inhabitants. If you think that it is wrong for you to make this contribution, then you ought not to participate. The fact that as many people, perhaps the same people, will be killed if you refuse is irrelevant if you are motivated by the duty not to kill. But the citizen who is deciding whether to vote or attend a demonstration cannot suppose that her action would make a contribution. It is true that she would be causing something to happen. She would increase by one the pile of votes for a particular candidate; she would swell the numbers at a demonstration by one. But it seems absurd to say that a citizen has a duty simply to add to a pile of votes or add to the number of demonstrators. What is the moral significance of doing that? What we face, it seems, is a collective action problem that can be described as the ‘problem of many hands’. Any morally conscientious person should want justice to be done and injustice to be curbed. Injustice can probably be curbed if enough citizens of a democratic polity act. But if citizens are being rational about their moral responsibilities then they probably won’t act. Collective action problems can sometimes be alleviated by legislation. Some countries make voting compulsory and fine those who do not vote, thus giving voters a financial incentive to go to the polls. The drawback of this strategy is that if citizens are mostly indifferent, ignorant or selfish, then they are all too likely to elect inadequate or downright evil leaders. In any case, it is desirable to find a moral reason why citizens should act. A problem concerning individual moral responsibility should have a moral answer. To those who search for such a solution, it seems obvious that what needs to be attacked is the presupposition that an individual can only

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have an obligation to do something if he or she has reason to believe that it will be instrumental in bringing about the desired outcome. Christopher Kutz calls this the Individual Difference Principle and regards it as inadequate for cases of collective action.3 Since we are, in fact, inclined to blame citizens of a democracy for failing to take action against leaders who are clearly unjust, it seems that he must be right. Let us consider some accounts of collective responsibility that might answer better to our intuitions.

Responsibility as complicity The problem concerning responsibility would be solved if we could insist that citizens, simply by virtue of their membership in a political society, have a duty to act in particular ways if the leaders or some of the citizens of that society are committing injustices. According to this view, those who act are not implicated in the injustice (or bear less responsibility); those who do not act are implicated. They are not doing their duty. Some citizens probably do have this view about their responsibilities. But probably not all. Some may refuse to believe that accidents of birth – like being a member of a particular political society – give them any duties. Some may think that their duty to be just and fight injustice is best discharged in groups or relationships where their efforts are instrumental in bringing about good results. Why not spend your time writing letters on behalf of Amnesty International or raising money for a group that provides care for abandoned children – activities which often do have good results – rather than spending time going to political protests or finding out about election issues? Others may simply not understand how they can have a duty to do something that is not likely to have any effect on the collective outcome. ‘Because you are a citizen’ is not an adequate answer to those who are not already willing to accept the duties of citizenship, or have questions about what they are. We need to see if we can find a better answer. Kutz aims to provide it. He argues that the responsibility of individuals for collective actions is not determined by the contribution they make but by their participation in a joint action. What counts is not the effect that an individual has on the outcome, but her intention to participate in some way in a group action in a situation in which her intentions overlap to a sufficient extent with other group members. ‘When we act together, we are accountable for what all do.’4 A person who, as a member of a criminal gang, plays a role in a bank robbery is clearly participating in a joint action. But so are people whose activities

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are not necessary to produce the effects. Kutz has two kinds of cases in mind. The first is that of the replaceable individual: the bomber pilot or the employee in a landmine factory whose harmful activities will be taken over by someone else if he quits or refuses to participate. The second type of case is where an individual’s action does add something to the effect, but to such a small extent that her activities do not make a relevant difference. Every driver adds a minuscule amount of pollution to the atmosphere. If one of these drivers, out of principle, stops using her car, she would reduce the amount of pollution by an insignificant degree. The first type of case does not really provide an exception to the Individual Difference Principle. It is true that when an agent is replaceable, her refusal to participate is not likely to decrease the amount of harm done. But a moral agent may well have more than one objective. I have pointed out that a non-consequentialist is likely to think it important that she not cause harm. If by non-participation she can ensure that this objective is fulfilled, she has a moral reason to refuse to participate. Cases of the second type are more promising as exceptions to the Individual Difference Principle. Let us assume that the pollution problem has the following structure. The amount of pollution added to the atmosphere by each individual driver is by itself harmless. However, the combined emissions of many drivers, once they overstep a certain threshold, do cause significant harm. If this threshold is overstepped, it is unlikely that an individual can decrease the amount of harm done by leaving her car at home. Nor can she regard her own emissions as causing anyone harm. So she seems to lack a moral reason for leaving her car at home, just as the citizen seems to lack a moral reason for voting or protesting against unjust leaders. There is a difference in the two cases. We are much more inclined to blame the citizen who fails to act against injustice than the car driver who refuses to give up her preferred means of transport (even when she can). This difference might have many sources, but it does arouse suspicion that the case of the passive citizen is different in an important way. Kutz’s position has some plausibility. If all the adult citizens of a country enthusiastically support an unjust war, it seems reasonable to regard all of them as complicit in the evil – even those who do nothing much or nothing effective to further the war effort. But his position runs into trouble precisely in those cases where an account of the basis of individual moral responsibility is most needed. People use their cars for all sorts of reasons and it seems far-fetched to suppose that car drivers are part of a collectivity with the same or overlapping inten-

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tions. Kutz suggests that they all share certain habits or attitudes, but this is implausible and much too vague.5 The problem is even more obvious when citizens are passive. People can fail to vote for a number of unrelated reasons: because they forgot about the election, are politically alienated or pay no attention to politics; because they are put off by existing politicians, and so forth. Overlapping intentions, which he relies on in order to attribute responsibility, do not seem to exist. However, it could be argued that what is relevant in attributing responsibility is not the non-voting intentions of passive citizens, but the intentions they ought to have as members of a democratic polity. The argument can be put in the following way. It is obvious that a morally responsible individual ought to value democracy. Democratic political societies have institutions that make it possible for citizens, acting together, to prevent or eliminate injustices. That is, their citizens have the institutional means not merely of mitigating injustice, or saving a few people from injustice (as can Amnesty International), but of eliminating systematic causes of injustices by remaking their institutions, changing policies and laws, and selecting just leaders. Since citizens are in the privileged position of having available to them these valuable, effective means, they ought to make use of them to combat injustices: that is, they ought to join together with other citizens and act according to this shared intention. Those who do not do so are morally culpable. This argument has the virtue of pointing out why citizens should value their democratic institutions but it does not succeed in explaining why an individual citizen has a duty to participate in using them. She might acknowledge that more justice can be done through these institutions than by individuals acting alone or in small groups, but she still might not see the point of participation, given that her efforts will have no appreciable effect. She might still think that, as a moral person, she ought to concentrate her efforts on activities where she can make a significant contribution. When we consider how individuals make their choices about how they should act, it is difficult to regard the Principle of Individual Difference as irrelevant. But if individuals make rational decisions based on their ability as individuals to make the most effective contribution to realising just states of affairs then how can they be blamed for not doing something which would not be effective at all? Let us see if we can answer this by examining another account of collective responsibility which rejects the Individual Difference Principle.

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Commitment and joint action According to Margaret Gilbert, it is commitment to being involved in joint action with others rather than the sharing of intentions which makes members of a group collectively responsible.6 People can have similar intentions without being committed to joint action: people who for similar reasons decide to drive their cars are presumably an example. On the other hand, a commitment and the responsibilities associated with it can exist even when, in the case of a particular action or policy, intentions are not shared. Gilbert believes that a person bears responsibility for the activities of the group that she is committed to. This responsibility exists even if she has not contributed to the outcome of its activities; it exists even if she opposes an activity or protests against it. It exists even if the wrongful action occurred before she was born. If a citizen is committed to a nation which is fighting an unjust war, then she is implicated even if she is against the war, even if she has done all she can to oppose it. If her nation committed unjust acts in its earlier history, then she bears responsibility for these acts. Gilbert think that it is intelligible, even proper, for a person to feel guilty for acts done by her nation even if she has had nothing to do with them. However, she does not think that individuals acquire such responsibilities simply by being citizens of their nation. Their responsibilities rest on an actual act of commitment. People make a commitment when they signal in a way that is understood by others that they are willing to participate in group activities. Having shown through their actions or words that they have entered into a commitment, they constitute with others a plural subject and acquire responsibilities for its activities and intentions. A person can incur moral blame if she signals her willingness to contribute but does not follow through. If I accept your invitation to dance, then I commit myself to becoming half of a dance floor couple and would rightfully incur criticism if I then refused. (Once she accepts his invitation, Elizabeth Bennett is obliged to dance with Mr Darcy, whatever her feelings or regrets.) In this case the commitment, and the plural subject, lasts no longer than the dance, but commitments can be long term. If I join a club, then I commit myself to participating in its activities over the period of time that my membership lasts. Gilbert’s account, unlike Kutz’s, has no difficulty explaining why a group member can sometimes be blamed for not participating in group activities.

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Gilbert has no doubt that citizens have generally committed themselves to their nation as a plural subject and she thinks that her account of collective responsibility explains why they so often feel guilty about the injustices of their nation, party or company even when they played no role in committing these wrongs. But one of the problems with Gilbert’s account is explaining how citizens acquire this commitment and understanding what it means. In many of Gilbert’s examples the conventions people use for making commitments, and the obligations they incur, are obvious and unproblematic. There are well-understood conventions for signalling a willingness to dance, and the obligations that follow the acceptance of such an invitation can be found in any book of etiquette. However, in the case of political membership, the conventions are not clear. Gilbert thinks that the commitment has been made if I think or act as a member of the nation: if, for example, I say ‘We are sending troops to Iraq’ or if I participate in national activities. But it is far from clear what kind of commitment, if any, I am making by the use of ‘we’, or by participating in common activities. Some forms of participation are far from voluntary (like paying taxes). Some may be motivated by desires that have little to do with national solidarity. People often attend national celebrations to have a fun day out or to see their friends. Even if some kind of commitment to the nation is widespread, it is not clear what this entails. The account seems too weak or vague to support a duty of political participation or to give citizens extensive responsibilities for the actions of their leaders. How can Gilbert explain the difference between the collective responsibility of citizens in a dictatorship and their responsibility in a democracy? It seems wrong to say that there is no difference – even though citizens of a dictatorship may on occasion refer to themselves as ‘we’ and participate in national celebrations. But if there is a difference, then this must have to do with what citizens can accomplish in a democracy – and not simply with their commitment to their nation. Once again, we return to the central problem: responsibility seems to have to do with what citizens collectively do or could do, but when this is reduced to a consideration of what an individual does or could do, the responsibility seems to evaporate.

Commitment and responsibility Nevertheless, there seems to me to be something right about Gilbert’s attempt to found responsibility on commitment. Suppose that workers

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in a very large enterprise are about to elect their union officials. The present officials have proved to be very ineffective, even corrupt, and there is a lot of discontent. Nevertheless, there is a danger that many workers will not bother to vote. Some of the shop stewards attempt to solve this problem by getting the workers in their sections to pledge that they will turn up to vote. Many workers do pledge. Suppose that some of these, despite their pledge, do not bother to vote. There is no problem about saying that they have done something wrong. By making the pledge an individual worker acquired responsibilities to the others with whom the commitment was made. He or she made a commitment to participate with them in a joint action. Those who failed to participate cannot excuse themselves by saying that their vote wouldn’t have made a difference. Can we apply this strategy of dealing with the problem of many hands to the case of the passive citizens? Let us say that your political leaders have committed injustices. You are very indignant about this and express your indignation to your friends and work colleagues. They mostly agree with you and together you commit yourselves to voting against the leaders in the next election. This commitment need not be as formal as that made by the workers. If people communicate with the intention of making their intentions clear to their fellows, and these others do the same, then it is reasonable for them to believe that a commitment exists. Suppose, however, that when the election comes you do not bother to vote. If your friends and colleagues find this out, they are justified in thinking that you did something wrong. You failed to fulfil a commitment that it was reasonable for them to believe that you had made. It might be objected that what you and your associates do is no solution to the problem of many hands in a mass society. For the fact is that what you and your friends and colleagues do is not likely to make a difference. If, on the day of the election, you and your associates decide to forget the commitment and go to the pub rather than vote, it seems that you are doing nothing wrong. People acting together can release themselves from a joint commitment. Moreover, many citizens do not want to be party to such commitments. Many people believe that they have a right to keep their political intentions to themselves. If such citizens have an obligation to vote (at least in cases where they perceive that injustices are being done), then it seems that it must be for a different reason than their having made a prior commitment to others to do so.

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Neither of these objections is decisive. You and your friends do not exist in isolation. Your political conversations are part of a much wider national dialogue, and your idea about what you ought to do is likely to be affected by this wider dialogue. It does not seem implausible to suppose that a tacit commitment exists that includes you, your friends and many other citizens, and that you and your friends would be betraying that commitment if you did not vote. The fact that many citizens do not want to broadcast their political intentions does not mean that they do not regard themselves as being committed participants in a joint activity. But we need to obtain a more precise idea of what that activity is. We have seen that there are very good reasons why citizens should value democracy and want their democracy to work. The problem is that the existence of this concern does not entail that they have an individual responsibility to do such things as vote in an election. But let us suppose that many citizens (not necessarily all) have made a joint commitment to making their democracy work. This means that they are committed to voting – at least at times when they think that important issues are at stake. They may also be committed to doing other things – depending on their situation and resources. Citizens may have somewhat different ideas about what their commitment requires them to do, but there is considerable general agreement on some matters (the importance of voting when important issues are at stake, for example) and widespread local agreement on other matters (for example, that those who are able ought to protest against obviously unjust policies). Now, if citizens have made such a joint commitment, then they are participants in a joint action and have the responsibilities that this entails. If someone fails to fulfil her responsibility, then she is culpable. She cannot excuse herself by saying that nothing she could do will make a difference. The commitment to making their democracy work is different from the commitment to voting in a particular way at an election. You may make the latter commitment with your friends and associates, but you can make the former commitment with people whose politics are different from yours – including people who have different ideas about justice. Your common commitment to making your democracy work is expressed in your political dialogues – in the fact that you try to change each other’s opinions about political matters. But you can regard yourself as being party to such a commitment even if you never talk about politics.

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My claim is that if there is in a democracy a widespread joint commitment to making their democracy work, then those who are part of that commitment are required to act in particular ways – for example, to vote in elections where important issues are at stake – and if they fail to do so, they are culpable. They have let down their fellow citizens who share this commitment. There is a number of objections to this idea of how individuals acquire moral responsibility. The first is that the account fails for the same reason as Gilbert’s account of national responsibility fails: because it provides no clear idea of when and how citizens make a commitment. A person can join a political debate, not because she wants to make any commitment, but simply because she enjoys debating. A person can attend a rally out of curiosity. But if commitment is a private matter of someone just intending to be part of it, how can we know if someone is committed or not? One reply to this difficulty is that it does not matter whether we can always tell whether a particular individual is committed. What is important in my deciding whether I will vote is that there is reason to believe that many people are committed to making their democracy work – that the joint commitment exists – and that I know I am part of it. But it is important to note that in many contexts it is possible to be fairly sure that people have signalled a commitment: they talk about how they are going to vote, they register to vote, they do vote, they pay special attention to political debates around election time; they discuss the virtues and positions of the candidates; they make demands of their political representatives or take issue with them; they write letters, sign petitions, complain about decisions; they say that their government ought to do something about a particular state of affairs. Gilbert’s account of the nation as a plural subject is unsatisfactory because it is not clear what being committed to the nation means and therefore it is also not clear what people are committing themselves to, if to anything, by indicating that they belong to a nation. What it means for citizens to be committed to making their democracy work is not so difficult to explain – there are standard ways of participating in a democracy – and it is not so difficult to determine whether others do these things or are committed to doing them. However, my account of how citizens acquire a responsibility to participate in democratic activities seems to encounter an obvious difficulty. Suppose you are deciding whether to be a part of the joint commitment to making your democracy work. You want your democracy to work, and believe that it will work if a sufficiently large

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number of people are committed to making it work. But you reason that your participation in making this commitment is not going to make any difference to whether the commitment is effective in making democracy work. And so you decide that you have no responsibility to participate. The problem of many hands, it seems, has translated itself into a new context. What this objection does not take into account is that the context has changed. I am no longer deciding, independently of everyone else, whether I have a moral responsibility to engage in a particular activity. I am supposed to determine along with others whether we ought to join together in achieving a desirable outcome that can only be accomplished by joint activity. Suppose that our city suffers severely from air pollution. Everyone wants the problem to be solved, but no individual regards himself or herself as having a moral responsibility to curtail their car driving activities. We commit ourselves to solving the problem in the only way it can be solved – by joint action. We get together in a big public meeting and decide on rules that will have the effect of limiting how people can use their cars. Now everyone has a moral, as well as a legal, reason to limit their motoring activities. If someone were wondering whether he had a moral responsibility to join others in the activity of deciding how to limit pollution, we would not find it difficult to answer. If the outcome is something that a morally responsible person ought to desire and the only way of accomplishing this good end is through commitment to joint action, then he ought to join. The fact that by himself he will not make any difference is simply another reason why the action must be joint. The Individual Difference Principle is irrelevant to my decision because I know that to achieve a desirable goal we have to make commitments with each other to act. Now when people go to the polls to vote in an election, I suggest that they generally are acting under the impression that have a joint commitment, or perhaps several layers of commitment. They might regard themselves as acting as committed members of a political party or as carrying out a commitment that they have signalled to their friends and colleagues to vote for a particular candidate. At bottom, I am suggesting, their commitment is to the joint activity of making their democracy work – something that they share with people who are voting differently. Because they have these commitments they do not reason in the way that I imagined you to reason in the opening paragraphs of this chapter. Because they have a commitment they regard themselves as having a moral responsibility to do what the

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commitment requires. This responsibility exists even if they believe or know that their participation will not make a difference to the outcome. In this way they are different from car drivers who, in the absence of legislation, do not believe that they have a joint commitment to curtail their driving. If citizens do regard themselves as participants in a joint commitment to making their democracy work then they should expect and want others to participate, even when these others are political opponents. This seems to be contradicted by the common desire of people who have particular political convictions that their opponents not vote in large numbers. The desire that one’s political opponents not vote in a particular election is not incompatible with believing that they should share a commitment to making their democracy work. People can fail to vote because they don’t think the issues at stake are all that important or because they believe that this time the other side is right, but cannot bring themselves to vote against the candidates of their party. But it would be a bad thing for a democracy if a large group of people were so alienated from their political processes that they did not bother at any time to participate in any political activities. No responsible citizen should want that to happen.

Responsibility for injustice Your leaders are committing acts that you regard as unjust. You voted against them in the last election; you have joined protests against the unjust actions. You have done what you can to combat the injustice and persuade your fellow citizens to act. Nevertheless the leaders have been re-elected and the injustices continue. Do you share responsibility for their unjust deeds? Some people would say that you do not; others, like Gilbert, say that you do. But both answers, as we have seen, seem unsatisfactory. Given that your actions were never likely to make a difference, how can you be any more or less responsible than the person who did not act at all? On the other hand, if we say that you are responsible just by virtue of being a citizen, then how is your position different from that of the subject of a dictatorship who is not free to engage in political action? Why should we blame citizens of a democracy for failing to act? A theory about the collective responsibility of citizens ought to be able to answer these questions. To most citizens making their democracy work does not merely mean perpetuating a system which has periodic elections. It means upholding a system in which citizens can act collectively to protect

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common goods and to ensure that justice is done. Citizens have different ideas about common goods and justice, and political debate is often about what these things mean. Nevertheless, citizens who are committed to making democracy work are also committed to acting with others to uphold what they see as good and right. If they have done so, then they have fulfilled their commitment. They share no responsibility for the fact that what they regard as right has not prevailed. Those who share their convictions about what is right but do nothing have not fulfilled their commitment and thus can be said to be complicit in the failure of the right to prevail. However, a theory of collective responsibility cannot be content with assigning responsibility only on the basis of what individuals do or do not do. By committing themselves to making their democracy work, citizens become part of a joint activity and must together share responsibility for whatever is required to make that activity possible. For a democracy to work, the minority have to be prepared to accept as leaders those who were elected by the majority. They have to accept decisions that they do not agree with. They have to accept the consequences of the decisions that their government makes. They have to accept that their leaders govern in their name and that they have to take responsibility for what their government does. If they were not generally prepared to accept these things, then their democracy could not function. This means that all committed citizens have to accept responsibility for such things as paying reparations for an unjust war or for other unjust deeds, for making sacrifices in order to undo harms that were done by their government. This responsibility is shared by those who fought against these injustices, those who committed them, and those who did nothing at all. What about citizens who are not committed to making their democracy work? It seems that they must be free from collective responsibility of any kind. They have made no commitment, so they cannot be blamed for failing to participate in democratic activities. They are not committed to accepting the decision of the majority and so, it seems, cannot be held responsible for the policies perpetrated by the will of the majority. There are three main groups of people who might refuse this commitment. The first group consists of people who have ideas of justice and right so different from those of most people in their nation, that they feel that they have no moral reason to join in a commitment to making their democracy work. As far as they are concerned it will never work, can never work. The second group of people do not think that democracy is a good thing or do not think that their democracy is

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worth the trouble of commitment. The third group of people value democracy, but are not moved by moral considerations that move people to commit themselves to making democracy work. They are happy to be free riders. In the case of the first group of people I think we would have to agree that they have a legitimate reason for refusing to make a commitment. Politically speaking, the only viable solution may be to allow them to go their own way, either by finding a polity to which they can make a commitment or by allowing them to govern themselves according to their own ideas of right, so far as practicable. The second group, if they cannot be persuaded, might be treated in the same way. Those who are committed to making their democracy work must hope, and try to ensure, that they do not become numerous. The third group, which is likely to be larger, are more deserving of censure. They benefit from living in a democracy and value it. But they are content to let other people do the job of making it work. They might be persuaded by education or example. If the problem is perceived to be serious, then compulsory voting could be a legitimate means of forcing participation, but it will only be truly successful if it does actually encourage people to take an interest in making their democracy work. People who destroy their ballot paper or vote in any which way are not helping to make their democracy work. It is also legitimate that people who benefit from democracy should be required to share its costs, whether they agree to do so or not. If a democratic government is to act as an agent, to defend itself or make agreements with other governments, then it must be able to impose tasks and burdens on all its citizens. It is legitimate for a democratic majority to impose its will on free riders and make them contribute to common tasks. This assumes that the majority of citizens are committed to making their democracy work. It could happen that those who have this commitment cease to be a majority. It could happen that the number of those who are committed to making their democracy work becomes very small. If you come to think that most of your fellow citizens do not have the commitment, then your reason for maintaining it becomes less compelling. If you believe that you are released from your commitment because of the indifference of your fellow citizens, then there is nothing to prevent you from deciding that you have no reason to vote or participate in other ways in the politics of your nation. Committed citizens of a democracy have good reason for not wanting this commitment to disappear and for not being quick to assume that others do not have it.

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Acknowledgement This is a revised version of a paper first read at the workshop on ‘Politics and Morality’, held in August 2004 at the Centre for Applied Philosophy and Public Ethics, University of Melbourne.

Notes 1 Larry May, Sharing Responsibility, Chicago and London: University of Chicago Press, 1992, p. 124. 2 May, Sharing Responsibility, p. 113. 3 Christopher Kutz, Political Complicity: Ethics and Law for a Collective Age, Cambridge and New York: Cambridge University Press, 2000, p. 3. 4 Kutz, Political Complicity, p. 165. 5 Kutz, Political Complicity, pp. 191ff. 6 Margaret Gilbert, ‘On Feeling Guilt for What One Has Done’, Living Together: Rationality, Sociality, and Obligation, Lanham, MD: Rowman & Littlefield, 1996.

10 ‘Barbarians at the Gates’: The Moral Costs of Political Community Rob Sparrow

Introduction The phenomenon of ‘dirty hands’ is often held to be endemic to political life. Success in politics, it has been argued, requires a willingness to sacrifice our moral principles in order to pursue worthwhile goals.1 I want to argue that the tension between morality and politics goes deeper than this. The very existence of ‘politics’ requires that morality is routinely violated because political community, within which political discourse is possible, is based on denying the moral claims of nonmembers. Political community requires borders and borders require keeping outsiders out. Yet there is no justification that we can provide to someone outside of our political community as to why they are denied membership. The price of political community is therefore the unjust exclusion of others. In a world characterized by the movement of peoples as a result of large-scale and systematic international injustices, this exclusion often involves acts that violate important obligations of compassion and respect. Thus, ‘we’ are the barbarians my title refers to. In order for political community to exist, we must act like barbarians at the gates. A problem of ‘dirty hands’ therefore lies at the very foundation of political community. My thinking about these issues is situated in the context of the recent controversy over border protection in Australia. The arrival of a small number of largely Iraqi and Afghani asylum-seekers on Australia’s northern shores has generated excessive controversy.2 To many Australians, myself included, it has seemed self-evident that we are obliged to grant residency in Australia to those asylum-seekers who are genuinely refugees under the UN definition. We are also required to behave humanely and decently towards all those who have arrived 170

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while they are waiting for their cases to be assessed. However, the Howard government has garnered a depressing level of popular support by portraying these arrivals as representing a fundamental threat to Australia’s sovereignty. They have argued – correctly, in my opinion – that Australia cannot grant residency to all the 20 million individuals around the world who are acknowledged to be refugees, let alone to all those who would lay claim to Australian citizenship if they were genuinely free to do so. They have also suggested – much less plausibly – that by travelling to Australia on their own initiative, this group of asylum-seekers have ‘jumped the queue’ and unfairly advantaged themselves relative to other applicants. Finally, they have in effect argued – and this is completely outrageous in the particular case – that if we were to grant the claims to refuge of this group, or even to treat them decently while we considered them, we would encourage others to pursue a similar course.3 The clear implication of the government’s reasoning is that meeting our obligations in this case would risk a greatly increased and possibly unmanageable number of claims to asylum by unauthorized arrivals in the future. While, in this particular case, the argument fails as a result of the falsity of suppressed premises (it is simply untrue that we could not admit the most recent cohort of asylum-seekers without altering the character of the Australian political community, or that treating their claims properly would lead to a significantly increased influx of asylum-seekers that might do so) there is, it must be admitted, a certain plausibility to the argument in relation to the more general question of the ethics of border protection, which partially explains its political success. There is a limit on the number of people that Australia can admit while still retaining whatever it is that makes being Australian important to Australians. Given this, it seems incumbent on us to try to distribute the scarce resource of refuge in as principled fashion as possible. Finally, although I feel much less comfortable acknowledging it, it does not seem impossible that, over the longer term, the international pattern of refugee flows should be responsive to the success or failure of previous asylum-seekers in achieving residency in particular communities to such an extent that this limit might be reached. With one or two admirable exceptions, I suspect that reputable thinkers have been disinclined to confront the implications of this structure of argument both because they have rightly been reluctant to risk being associated with a policy that is, in the current context, clearly morally repugnant and also because it seemingly offers little

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hope of an acceptable solution. None the less, because it seems likely that refugee flows are only going to increase over the twenty-first century, it is imperative that we begin thinking about this matter in a concerted and critical fashion.4 My investigation suggests that the conflict between the moral demands of outsiders and the conditions of possibility of political community, which this argument points towards, is deep, troubling and potentially irresolvable.

Politics and morality Before I continue, I need to make clear what I mean by ‘politics’ and ‘morality’, as I will be using these in a somewhat technical sense to refer to what I take to be related, but importantly different, spheres. By ‘politics’, I mean contestation and discourse concerned with the affairs of the political community or polis. Politics takes place primarily among citizens and against the background of the law.5 The subjects of political dispute are the interests of citizens, which are determined within a framework of entitlements established by the law. This definition of politics implies that everything that occurs within the polis is political. Furthermore, because the interests of citizens are determined with reference to the institutional framework established by the political community, politics necessarily possesses a public dimension. There is an implicit reference to a ‘we’ in any argument between citizens. Even ‘private’ exchanges between citizens have a political dimension because they both affect and rely upon the background context in which other relations between citizens take place. This conception of politics is self-evidently a communitarian one in that it identifies politics with the affairs of a particular community. There will be a number of such communities, each with their own politics. However, I want to emphasize that I do not wish to attribute any character to these communities other than that constituted by their political structures and affairs. That is, I want to disavow the communitarian tendency to identify political communities with cultures or a rich set of ‘shared understandings’.6 On my account, the ‘political community’ is simply a group of people defined by its membership criteria, and its character consists only in its decisions and the procedures whereby they are reached. This qualification is important because it denies the excessive weight given to the demands of community which often follows from more substantive conceptions.7 As I will argue below, the only thing necessarily shared by all citizens is the fact of citizenship.

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‘Morality’, I take to refer to our obligations to other people which have their force without reference to the specific character of the political community in which they are expressed. Where politics concerns relations between citizens, morality concerns relations between human beings. Whereas politics is inevitably partial, morality is universal. Our moral duties to others are revealed in their most fundamental form in the encounter with the Other or stranger which is explored in the writings of Emmanuel Levinas and Alphonso Lingis, among others.8 What the phenomenology of such encounters demonstrates is that other human beings, by the mere fact of their humanity, possess the ability to impose deep and compelling obligations upon us, of empathy, compassion and respect, among others. Most fundamentally, the encounter with the Other reveals our obligation to strive to justify our actions and attitudes towards them to them. Our moral obligations are essentially obligations to particular individuals. The full force of moral claims is consequently, on this account, inexpressible. As human beings are social animals, all moral claims are expressed in language that has developed within a particular political community. However, while the form of moral claims partakes of the political, their force is distinctive. What we owe to each other morally, we owe to individuals by virtue of their humanity alone. Morality, as I have described it, is therefore a regulative ideal – at least in liberal democratic societies where universalism is thought to be a virtue. In liberal democratic societies, politics pretends to the status of the moral. This is especially the case in relation to the law, as the language of justice is where the universalist ambitions of liberalism are most overt. However, as we shall see, this is merely a pretence. When it comes to the demands of outsiders to be let into the polis, liberal politics falls silent.

The necessity of borders Before I consider the tension between borders and morality, I first need to investigate the importance of borders. This may seem like an unnecessary labour. States, and the borders which divide them, are such a deeply entrenched feature of the political landscape that questioning their justification may seem both utopian and perverse.9 However, as a large portion of the argument below will be concerned to demonstrate that the defence of borders involves large injustices, including ignoring the urgent moral claims of individuals, it is incumbent upon me to show why I think there are none the less compelling reasons to defend

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the existence of borders. Moreover, in the last decade – especially in the Australian context – the evil done in the name of ‘border protection’ has been so striking, and the injustices of the current distribution of opportunities and well-being internationally so obvious, that the justification of borders themselves should surely come into question.10 Borders, as I shall understand them, divide different political communities. They are barriers standing in the way of outsiders to entry and full participation in the affairs of a polis. This understanding of borders is deliberately much broader than the more familiar identification of borders with territorial divisions between sovereign states enforced by border patrols and customs officers. I want to hold that where rivers, mountains, oceans – or even cultural and/or linguistic differences – divide political communities, then these may constitute borders as much as do customs barriers at airports. The mere absence of border patrols does not serve to establish the absence of borders. Unless we keep this in mind there exists the danger, especially in countries such as Australia where geographical distance and felicitous natural features serve to establish formidable barriers to entry, that we will be deluded into thinking that it would be a straightforward matter to ‘open the borders’ without risking any of the consequences that critics of such a policy are typically concerned about. The question of the justification of borders is also the question of the justification of the division of the world into distinct sovereign entities. States and borders stand or fall together. However, it needs also to be remembered that borders do not simply divide but also – indeed, primarily – exclude; they prevent those outside from coming in. What needs to be discussed, then, is not just the existence of separate political communities but also the justification of restrictions on movement between them.11 There are five strategies of argument for the justification of borders that I wish to briefly survey here. Arguments for the justification of borders can be made 1) with reference to their role in securing an important set of political goods, or 2) to the value of the cultural goods they help preserve, or 3) based on the right to freedom of association. 4) Borders are also arguably, to some extent at least, an inevitable consequence of the existence of distinct political communities. Finally, 5) a prima facie case for borders can be made simply by noting how radically we would need to re-theorize our intuitions and revise our political practice in order to do without them. While, in each case, I will note some reservations about the effectiveness of each of these argu-

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ments in justifying borders, their combined weight does, I submit, constitute a compelling case for the necessity of borders. 1) The least ambitious, but consequently strongest, argument for the necessity of borders draws attention to the role borders play in making possible what are generally acknowledged to be crucial, but merely, political goods. The practice of democracy and self-government requires the existence of a defined and distinct polis, whose affairs are then governed by its citizens. These ideals presuppose that a distinction can be made between the inside and the outside of a social group or geographical region. In some form or other, they require borders. It is perhaps tempting at this point to reply that one can have a citizenry without a border. However, this is untenable. There must, ultimately, be some institution or process that determines what are the boundaries of the polity and who is – and is not – a citizen. Without this, it is not possible to conduct a vote, or to bind citizens to the results of a democratic process. Without some sort of defined boundaries to the polis, the practice of democracy is impossible.12 This purely political route is, I believe, the strongest argument for borders. However, as I have just observed, it says nothing about where these borders should go. This silence will prove troubling when we come to consider the justification (or lack thereof) for excluding particular individuals from membership of such political communities. 2) The next argument for borders does intend to establish that they should go in particular places. Perhaps the most popular argument for borders, both philosophically and historically, makes reference to their role in defending cultures. Will Kymlicka has done much, since the publication of Liberalism, Community and Culture, to render the claims of culture philosophically respectable even in liberal circles by linking them to the conditions of possibility of the autonomy of individuals.13 The historical success of nationalism has in part been achieved by constructing ‘imagined communities’ and associating these with particular cultures, or ways of life, which could then serve as a means of cementing their members’ commitment to them. However, a distinct political community is neither necessary to, nor sufficient for, the preservation of a distinctive culture. Almost all modern nation-states are multicultural. Moreover, many of the most significant modern pressures towards cultural homogeneity transcend borders to such an extent that the cooption of state power in defence of culture by no means guarantees that cultures will maintain their distinct character. These observations problematize the justificatory route from culture to polity. Nevertheless, borders and the self-government

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they make possible can play an important role in defending the distinctive character of particular cultures. Without borders, cultures are subject to pressures and historical vagaries that place their survival at risk over the longer term. 3) Another type of argument for the legitimacy of borders founds them in a presumed individual right to ‘freedom of association’. The pursuit of certain goods requires organized collective activity. In order to prevent ‘free-riding’, it is essential that the members of the collective grant the collective the right to exclude those who do not contribute. There is a range of human activities including intimate relationships, family life and some forms of religious practice, which essentially require some form or other of privacy and which are jeopardized by the presence of unwanted strangers. The importance of these goods might be thought to justify a right to exclude others in the course of this association.14 An argument for borders can therefore be made simply by defending the right of political communities, considered as free associations of persons, to exclude whoever they like. There are, however, two difficulties with this form of argument, both relating to the appropriateness of generalizing from the case of a small group of individuals to a larger political community. The first concerns the moral status of the goods that are pursued in free associations. The ‘right to exclude’ derives from the importance of the good pursued by the group to the well-being of its members. However, the goods pursued by political communities are primarily the political and/or cultural goods described above. This argument is, therefore, less distinct from the two surveyed above than first appears. The second difficulty in grounding borders in political communities’ right to free association concerns the nature of the association. In small associations, or in associations united by explicit commitment to a common goal, it is possible to argue that the inclusion of particular individuals may directly threaten the interests of the other members. However, in larger associations, while the admission of large numbers of persons with values contrary to those of the group may threaten the existence of the association and thus the interests of its members, in most cases the admission of any particular individual does not. This suggests that while freedom of association may justify some restrictions on mass migration, it will not be able to justify an untrammelled right of the political community to exclude those who wish to enter it. Moreover, in so far as it does ground a right to exclude others, freedom of association will only justify excluding those who deny the conditions of the association. This may be insufficient to ground restrictions on immigration in practice

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because potential migrants may be willing to adopt whatever commitments are determined to be the conditions of membership. The argument for borders from the right of individuals to free association is a complex and perplexing one. We will return to it below. The final two arguments for borders that I wish to survey take the form of more general claims about the consequences of the relationship between borders and communities rather than the identification of goods that political communities serve. 4) The first of these proceeds from the observation that the effects of political community themselves establish significant barriers to people moving between communities. Political communities distinguish themselves from each other through the exercise of their power of selfdetermination. If, as a result of this process, or simply as the result of historical circumstances, the currency is different, the language is different, the customs are different, etc., between polities, then these things all make it harder for people to move from one place to another. The costs imposed on movement between polities by these differences are forms of borders themselves, and are sometimes sufficient to exclude those who cannot meet them. 5) A final argument for the necessity of borders simply observes just how radically our institutions and our political thinking would have to change if we were to do without them. Without citizenship – without local, or regional, or national, borders – the only political community possible is a global one. Even if we did not fear domination by those with different cultures, ideas and values than our own, would we like affairs to be decided at this level? Cosmopolitanism is a theoretically consistent and attractive politics, but when we think about what it actually involves, it loses much of its appeal. Yet any retreat from cosmopolitanism acknowledges the need for borders, in some form or other. This all too brief survey has been intended to demonstrate that there are multiple routes to the conclusion that borders are necessary conditions of political community. I am aware that to a significant portion, perhaps the majority, of my readership it will have appeared redundant. Nevertheless, when we become fully aware of the tension between the claims of political communities and the moral claims of individuals, I believe the question must arise as to whether borders are in fact justified.

The moral cost of border protection The central thrust of the argument that follows is that, even if they are justified, borders are morally arbitrary.15 They are arbitrary in two

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senses. First, where they go on the ‘map’ of possible divisions of the world into classes of persons is arbitrary; how many political communities there are and what their character should be is under-determined by the available reasons.16 Second, the distribution of individuals among political communities is arbitrary; which individual(s) are members of which political communities is not governed by any principles. The second sense in which borders are arbitrary has been subject to less attention than the first despite being, I will argue, more threatening to the moral force of borders. Borders are unlikely candidates for moral distinctions with life-ordeath consequences because they are so clearly a product of historical contingency. If we are to defend existing borders then in most cases we will be defending divisions between communities that have no normatively reputable historical basis. Many borders around the world bear little or no relation to cultural or historical facts on the ground, being no more than lines drawn on the map by a previous colonial power. There is, moreover, another, more subtle sense in which the borders of political communities cannot be justified. The social group whose interests might be thought to justify them does not exist prior to determining them. Any claims about the interests of peoples, or about selfdetermination, are moot when it comes to justifying the location of borders because our ability to evaluate these claims presupposes the political community, the borders of which are yet to be defined. This is a profound problem in the political philosophy of secession in particular. I mention it here because it demonstrates that there is always a significant uncertainty about the normative force of borders, especially at the ‘edges’ where a substantial proportion of the population may identify with a social group which extends across the borders. Of course, eventually the borders established as the result of conquest and contingency may come to define a political community, with reference to which (note here the circularity involved) they might be justified. That is, the nature and character of the community may be such that it becomes plausible to argue that it should be preserved. This is in fact reasonably likely as, by and large, ‘peoples’ and cultures are the product of states, and not vice versa.17 However, the normative weight these foundations can bear is surely weakened by the recognition that had historical events turned out differently, a different set of borders would now divide a different set of communities with just as much claim to a right to defend them. Even if borders are justified because they make possible pursuit of some important good(s), there remains the problem of the distribution

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of persons across borders. The onus of proof on those who wish to defend the rights of states to defend their borders is not simply to show that the existence of borders establishes some good(s), but to explain why these are made available to some persons and not others. We might call this the question of the distribution of the goods of citizenship. To appreciate fully the force of this question we must pause to consider first what, if anything, justifies the location of particular individuals within the existing grid of political communities. The answer in the overwhelming majority of cases is clearly ‘nothing’. Borders enclose a group of persons who have nothing in common except that they are members of the group they define. This is especially obvious after the mass immigration that characterized the twentieth century. Within any nation, citizens speak different languages, worship different gods, value different goods. If there exists a ‘national’ culture, it is not one shared by all citizens. The goods which borders make possible for citizens to enjoy and participate are neither earned nor deserved. The vast majority of individuals who are citizens of any particular nation have not chosen to be so; instead, citizenship was bestowed upon them solely due to the nationality of their parents and/or the place of their birth. If individuals within the nation participate in the collective activities that ground the claims of the nation, they do so only because they are citizens, because they have grown up within the community, or have otherwise been offered the opportunity to participate in it. Their participation in these activities therefore provides little grounds for their citizenship. In most cases, then, citizenship is both unchosen and morally arbitrary. This means that when it comes to explaining to any particular individual why they are excluded from our community there is little that we can say. I am not denying here the arguments that I have made above for the necessity of borders, nor even that political communities possess some limited right to determine who may or may not become members. What is lacking is any justification that we can provide to the particular individuals that we excluded why we have excluded them. If it were plausible to theorize political communities as free associations, a possible resolution of this problem beckons. Communities are under no obligation to admit particular individuals, as they are under no obligation to admit anyone at all. They are free to offer or deny membership to anyone they like and need offer no justifications for their decisions.

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However, very few defenders of states’ rights to control their borders are prepared to go this far. Almost all defenders of immigration controls grant the existence of obligations to admit the immediate family members of existing residents and to provide refuge to those fleeing persecution. This is sufficient to show that few people believe that states possess an untrammelled right to restrict freedom of entry – and that therefore it is reasonable to demand reasons of states when they do choose to refuse entry. Moreover, as I argued earlier, the possibility of arguments in favour of a right to exclude on the basis of freedom of association depends on demonstrating that the goods that the community provides to its members are of sufficient importance to ground restrictions on the entry of others, and on establishing that the admission of the persons seeking entry will threaten the provision of these goods. Yet we have just seen that when we pay proper attention to the nature of political communities there is little to suggest that either of these things will always – or even often – be true. It is implausible to suggest that the ties between states and citizens are sufficiently strong to ground an extensive right to exclude others. Moreover, given the diversity of persons already within nations, it will in most cases be implausible to argue that the admission of any particular individual will threaten the conditions of possibility of the association. At most, then, the argument from freedom of association would justify the exclusion of those who were unwilling to comply with the reasonable expectations of their new home in relation to citizenship. As long as potential immigrants are willing to meet the requirements of membership in the community, the problem of justifying their exclusion to them remains. At this point it might be argued that the distribution of citizenship across persons is not in need of justification of this sort. Whether a person is born a citizen of Australia or of Yemen, for instance, is simply a matter of contingent fact and not something which can be questioned on the grounds of justice. This is already a weak argument because the distribution of citizenship has enormous implications for the well-being of persons and is maintained by state power. Even in the abstract, then, one would expect it to be justified. However, as I will argue below, it is when we come to consider the reality of border protection, and the denial of the moral claims of individuals that it involves, that the demand for justification becomes most obvious. If the arbitrary nature of the distribution of persons across nations occurred only in a world in which differences in the standard of living

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between nations were negligible, it might be possible to ignore it. However, our world is characterized by grotesque injustices in the international distribution of the prospects for a decent human life. Existing borders do not merely defend and maintain political community, but also defend and maintain manifest and extreme injustices of the distribution of basic goods. Most obviously, border controls function to keep poor people out of wealthy nations and thus defend injustice. However, the role of borders in the defence of injustice is more pernicious than this. The fact that capital is typically free to move across borders, while labour is not, allows multinational corporations to shift investments to regions where wages and tax burdens are low while hampering the ability of workers to organize collectively across borders in pursuit of their interests. The presence of large communities of undocumented workers or illegal aliens, who are unable to claim the social and civil rights of other citizens, is often tolerated within national borders because it exercises a downwards pressure on wages and undermines the bargaining position of workers. Meanwhile, wealthy individuals, travelling as tourists or business migrants, are able to move around the world in pursuit of their interests with relative ease.18 In these ways borders also play a crucial role in maintaining inequality within – as well as between – nations. The large-scale injustices in the international distribution of the opportunity to lead a decent life are the underlying cause of the mass migration of peoples that is characteristic of modernity. While such injustices remain, people will move and will be justified in doing so. What can we say to such people when they reach our borders and request permission to enter our community?

Barbarians at the gates The conflict between the rights of political communities to control their borders and the rights of individuals to cross them appears in its most urgent and dramatic form in relation to the case of refugees under the UN definition, that is, persons who are fleeing persecution on the basis of their membership of a social group. Our obligations to such persons seem especially pressing, as they have no homes and often nowhere else to go. The force of refugees’ claims is, in many cases, amplified by the suffering that they have already experienced. A significant percentage of persons trying to cross modern borders die in the attempt. All of those

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who arrive have left friends and family behind. Many of them have seen their relations and other members of their community raped, tortured or executed. Some have lost their loved ones in the course of the attempt to reach Australia as a direct result of the barriers that we have erected to try to prevent their entry. Our obligations to people in these circumstances are paradigmatically moral obligations as I have identified them in this essay. They are duties to strangers rather than citizens. When asylum-seekers reach our borders, our obligations to them make themselves felt at the most basic level of duties of respect, compassion and mutual aid. The most pressing of these obligations is to attempt to explain and justify our treatment of them to them. Yet despite the urgent moral claims that refugees make upon us, it remains true, as I conceded at the outset, that we cannot admit each and every person who can make such a claim. The number of potential claimants exceeds our capacity to offer refuge. Thus, when we are confronted with the moral claims of persons who wish to enter our polity we have two choices. Either we let everyone in, or we refuse permission to some arbitrarily selected subset. We can only do the former at the risk of abandoning entirely any effective right to control our borders. Yet, if we do the latter we are denying the obligation that I have argued is most pressing: to explain to those whom we have excluded, why we have excluded them. The policy concerns which explain why it might be a bad thing to do to let them in are oblivious to the moral demands of this person. This is true even if the defence of our decision to exclude some persons makes reference to what is perhaps the most powerful argument in favour of the right of (some) nations not to grant the claims of all those seeking asylum on the grounds of refugee status – the ‘fair shares’ objection. This argument seeks to limit the obligations of nations to provide asylum to their ‘fair share’, which is – roughly – determined by dividing up the global number of asylum-seekers among nations on the basis of their ability to provide asylum to them. However, no matter what we think of the virtues of this argument, it does nothing to address the question of which persons’ claims will be granted. The burden of justifying their exclusion to those who are excluded remains. We come, finally, to the title of my chapter. If we deny the obligations that we have to strangers who are seeking asylum, then we are denying the most basic moral requirements imposed by our shared humanity. We are acting like the caricature of barbarians – those who

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recognize no such obligations and who are willing to dispose of the moral claims (and lives!) of others in a wilful and callous fashion. We have become ‘barbarians at the gates’. Yet, as I have argued throughout, at some point this seems to be necessary if, in a world characterized by the presence of millions of people with legitimate claims to refuge and by the increasing global mobility of these populations, we are to sustain political community at all. The demands of refugees are the clearest case of the moral demands of non-citizens, but other persons who do not fit the UN definition of refugees may have equally compelling moral cases to be admitted to our political community. A person who left their homeland because they were starving, or in danger of being killed due to civil war or generalized social disorder, has just as much claim to the security that we enjoy as refugees do. We also owe such people an explanation when we choose to deny them membership of our political community. What about the person who simply wants to move? Don’t we have the right to exclude him/her? Do we owe them an explanation if we do choose to exclude them? I’m not sure that we do not. How we judge this matter will depend upon how we assess the balance of considerations I have been discussing here. On one hand, I have argued that political communities do possess a limited right to exclude others. It is difficult to give sense or content to this right unless it allows them to exclude those who have, by hypothesis, no pressing moral claims to be allowed entry. On the other, given how thin the justifications for the existing distribution of citizenship are we may, even in this case, have some obligation to at least explain our decision.

An ethics of proximity? Robert Manne and David Corlett have recently suggested that the dilemma that concerns me here can be resolved by invoking an ‘ethics of proximity’.19 They argue that we are obliged to provide refuge to refugees who reach Australia’s shores, as opposed to refugees elsewhere, simply because theirs are the calls for assistance that confront us most immediately. Manne and Corlett support their argument with the example of someone who ignores the appeal for help of a particular stranger who confronts them personally. They argue that we rightly feel differently about such a person than we do a person who refuses to provide an equivalent amount of assistance to someone whom they are told is suffering far away. One reason for this is that the person who refuses the personal appeal for help reveals themselves to be hard-

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hearted in a way that the person who refuses to provide assistance to the distant stranger does not. Invoking an ethics of proximity therefore seems to offer the prospect that we can allow that we are obligated to grant residency – and ultimately citizenship – to those who reach Australian shores in desperate need of help, while denying that we are required to open our borders to all who would wish to come here. There is some merit in this argument. Any ethics that is sensitive to the distinction between what we do and what we merely allow to happen should grant that there is a significant difference between refusing to help someone in need in front of us and failing to prevent distant injustices. Virtue ethics, in particular, will distinguish between these different cases. Moreover, what I have described as the moral demands of others are felt most keenly in personal encounters with individual strangers in need. The claims of distant strangers tend to reach us only en masse and in an attenuated form through a political discourse about international refugee policy or foreign aid. However, the difficulty with this purported solution is resolving how much weight it is fair to place on the concept of proximity, especially when how far away strangers are, and how loud their calls upon us are, are products of our own choices. It is unclear from Manne and Corlett’s exposition whether they intend an ethics of proximity, wherein we must grant asylum to refugees who arrive in Australia, to be compatible with allowing governments the right to try to prevent strangers from reaching our borders. If it is, it risks the paradoxical implication that states will be justified in doing everything they can to discourage and prevent asylum-seekers from reaching our borders, but that once they arrive states must recognize that they were justified in trying. Such a situation would be an analogous to a householder who surrounds their home with high walls and guard dogs but cheerfully offers anyone who makes it in through the bedroom window tea. If an ethics of proximity does not permit governments to restrict entry in at least this fashion then it is hard to see how it differs from the advocacy of open borders and, furthermore, how it offers any real solution to the deeper problem of who should be let in. More fundamentally, relying on an ethics of proximity to resolve the dilemma of whether and how borders are to be enforced involves an illusion about the nature of borders that I drew attention to earlier. Borders do not consist solely in territorial lines, crossing points and customs barriers but in the entire complex of factors that divide communities and work to exclude outsiders. Borders are diffuse and global

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and thus we cannot identify those who have arrived at our borders with those who land on our shores in boats or aeroplanes. What counts as ‘proximate’ is therefore controversial. One can lodge a claim for asylum in Australia at Australian embassies and consulates, and UNHCR offices all over the world. It is simply unclear why we are less obliged to respond to these claims than we are to those of asylumseekers who reach Australian territory. Rather than solve the conflict between the borders necessary to political community and our obligations to those who wish to be let in, an ethics of proximity merely highlights that this is indeed a conflict between the moral and political.

Conclusion: a problem of dirty hands? Identifying phenomena as a case of ‘dirty hands’ involves two claims that must both be held to be true, despite being contradictory: first, that an action or policy is evil or wrong, violating our moral principles at the deepest level, and second, that there are compelling reasons for engaging in it. These reasons are typically held to be distinctive to, or constitutive of, the political domain in which the circumstances that motivate the action arise.20 The conflict I have been describing has this character. The defence of borders, especially in the face of the moral appeals of refugees, involves denying the profound obligations that we have to other people by virtue of our shared humanity. Yet the existence of borders is a condition of the possibility of political community. A problem of ‘dirty hands’ thus lies at the very foundations of politics. One further question that arises at this point is exactly who it is whose hands are ‘dirty’ in this situation? It might be argued that the most pressing dilemma of dirty hands is confronted only by those who actually guard the borders – immigration officials and border patrols. It is undoubtedly true that these personnel should think long and hard about the morality of what they are doing and whether they are justified in doing it. However it would, I think, be disingenuous to argue that they are the only, or even the main, group who must confront the question of the morality of border protection. Responsibility for the evil done in the course of this policy is surely borne primarily by those who have decided to adopt it, that is, the government of the polity involved. Indeed, if I am right that it is a condition of the existence of political community that such evil be done, then it is actually incumbent upon those whose responsibility it is to serve the

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community to confront this necessity and to get their hands dirty as a result. Of course it is a further question, beyond the scope of this chapter, how much this taint diffuses to cover the individual hands of the entire political community. It may well be that all those who benefit from the unjust exclusion of others bear some responsibility for it. Cases of ‘dirty hands’ are philosophically unsightly (as, indeed, is the phenomenon itself), offending against the desire for consistency and symmetry that suffuses the discipline. The tensions which constitute them can be resolved in one of two ways. The immorality of the action or policy can be explained away by insisting that the moral injunctions against them lapse in such cases, or that the ‘compelling reasons’ have moral weight sufficient to justify them being overridden. Alternatively, it can be denied that there are compelling reasons for it at all – and therefore that it should be carried out. The first strategy reconciles morality and politics by giving moral weight to political imperatives, while the second does so by insisting on the priority of morality. Both, however, have the goal of reconciling them. These strategies are both available in the case I am discussing here. Some critics will hold that the defence of borders is justified, because the goals it serves are of sufficient moral weight to justify the wrong done to those who are excluded by them. Others, more conscious of the evils done in the course of the process of controlling immigration and of the difficulties involved in justifying immigration restrictions, may prefer to resolve the tension by privileging morality over politics and embracing the ideal of open borders. My own position, however, is that we should acknowledge that the dilemma of the exclusion of noncitizens is a problem of dirty hands and think about it in that light.21

Acknowledgement This is a revised version of a paper first presented at the workshop on ‘Politics and Morality’, held in August 2004 at the Centre for Applied Philosophy and Public Ethics, University of Melbourne

Notes 1 For an introduction to the literature around the idea of ‘dirty hands’, see C. A. J. Coady, ‘Dirty Hands’, in A Companion to Contemporary Political Philosophy, ed. Robert E. Goodin and Philip Pettit, Oxford: Basil Blackwell, 1993. 2 An excellent account of the history of the recent Australian debate surrounding asylum-seekers is provided in Peter Mares, Borderline: Australia’s

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3 4

5 6

7

8

9

10

11

12 13

14 15

16

Treatment of Refugees and Asylum-seekers, Sydney: University of New South Wales Press, 2001. See also Robert Manne with David Corlett, Sending Them Home: Refugees and the New Politics of Indifference, Quarterly Essay 13, Melbourne: Black Inc., 2004. Mares, Borderline, esp. chapter 6. For a discussion of contemporary patterns of migration, their causes and possible future trends, see David Held, Anthony McGrew, David Goldblatt and Jonathon Perraton, Global Transformations: Politics, Economics and Culture, Cambridge: Polity Press, 2000, chapters 6, 7 and 8. Aristotle, Politics, trans. Ernest Baker, rev. R. F. Stalley, Oxford: Oxford University Press, 1998, Book III, chapters 1–5. See, for instance, Alasdair MacIntyre, After Virtue. Notre Dame: University of Notre Dame Press, 1981; Michael J. Sandel, ‘The Procedural Republic and the Unencumbered Self’, in Communitarianism and Individualism, ed. Shlomo Avineri and Avner De-Shalit, Oxford: Oxford University Press, 1992. Nancy L. Rosenblum, ‘Pluralism and Self-Defense’, in Liberalism and the Moral Life, ed. by Nancy L. Rosenblum, Cambridge, MA: Harvard University Press, 1989; Allen Buchanan, ‘Assessing the Communitarian Critique of Liberalism’, Ethics 99 (1988/89). Alphonso Lingis, The Community of Those Who Have Nothing in Common, Bloomington and Indianapolis: Indiana University Press, 1994; Emmanuel Levinas, Entre Nous: On thinking-of-the-other, London: Athlone Press, 1998, and ‘Ethics as First Philosophy’, in Sean Hand (ed.), The Levinas Reader, Oxford: Basil Blackwell, 1989. Veit Bader, ‘Citizenship and Exclusion: Radical Democracy, Community, and Justice. Or, what is wrong with Communitarianism?’, Political Theory 23 (1995), p. 214. There has been an explosion of interest in questions related to the moral status of community and nation and to the justification of borders since the early 1990s, spurred in part by Will Kymlicka’s work and in part by events in Europe and the former Soviet Union (Daniel M. Weinstock, ‘Is there a Moral Case for Nationalism?’, Journal of Applied Philosophy 13 (1996), p. 88). For a useful starting point, see Warren F. Schwartz (ed.), Justice in Immigration, Cambridge: Cambridge University Press, 1995. Louis Michael Siedman, ‘Fear and Loathing at the Border’, in Justice in Immigration, ed. Warren F. Schwartz, Cambridge: Cambridge University Press, 1995. Robert Sparrow, ‘Borders, States, Freedom and Justice’, Arena Magazine 66 (August–September 2003). See, for instance, Will Kymlicka, Liberalism, Community and Culture, Oxford: Oxford University Press, 1989, and Multicultural Citizenship, Oxford: Oxford University Press, 1995. A useful early discussion of this argument is contained in James L. Hudson, ‘The Ethics of Immigration Restriction’, Social Theory and Practice 10 (1984). Mark Tushnet, ‘Immigration Policy in Liberal Political Theory’, in Justice in Immigration, ed. Warren F. Schwartz, Cambridge: Cambridge University Press, 1995. Weinstock, ‘Is there a Moral Case for Nationalism?’

188 Rob Sparrow 17 Chandran Kukathas, ‘Are There Any Cultural Rights?’ Political Theory 20 (1992). 18 My argument here draws on Sparrow, ‘Borders, States, Freedom and Justice’. 19 Manne with Corlett, Sending Them Home. 20 Anthony P. Cunningham, ‘The Moral Importance of Dirty Hands’, The Journal of Value Inquiry 26 (1992); C. A. J. Coady, ‘Politics and the Problem of Dirty Hands’, in Peter Singer (ed.), A Companion to Ethics, Cambridge, MA: Blackwell, 1993; Coady, ‘Dirty Hands’. 21 I wish to emphasize that while I have argued that it is a necessary condition of political community in a world characterized by deep injustices that that community denies the urgent moral claims of non-citizens, I have said nothing about the politics of any particular policies to defend borders. This chapter should therefore not be seen as a defence of the current Australian government’s racist and discriminatory ‘border protection’ policy. It is quite clear that granting citizenship to all the recent cohort of asylum-seekers in Australia would not threaten the conditions of political community in Australia in the slightest. The only policy I believe is ruled out by the demands of political community is a policy of genuinely ‘open’ borders. However, as I have argued, anything short of this policy inevitably involves us in the unjust exclusion of non-citizens and thus raises the dilemma I have here described.

11 Lying and Politics David W. Lovell

I Popular dissatisfaction with politics and politicians in liberal democracies seems to be a phenomenon of increasing interest but disputed significance. Such dissatisfaction is comprised of a range of discontents, including disappointment that a preferred candidate or party was not elected to office; opposition to particular government decisions; outrage at so-called ‘broken promises’; and claims that some or all politicians have engaged in inappropriate behaviour to gain, retain or benefit from public office. The suspicion that politicians lie is an unmistakable element in this amorphous compound of dissatisfaction, and the one on which this chapter focuses. I do not propose to hazard whether on account of popular dissatisfaction generally politics is now in crisis (though, like Goot,1 I doubt it), but rather to isolate and examine the validity and weight of the charge of lying itself. The adversarial nature of electoral politics undoubtedly contributes to citizen dissatisfaction, especially when politicians themselves routinely accuse each other of the misdeeds of which they are all suspected. We may gauge politicians’ reputation as liars by noting some broader measures of their perceived ‘honesty’. For example, in a poll conducted in September 2004, only 9 per cent of Australians surveyed believed that Federal members of parliament had high or very high standards of honesty and ethics.2 A poll by Gallup International in mid-2004 reported significant levels of distrust in politicians around the world, with 76 per cent of Germans and 90 per cent of Poles surveyed believing their political leaders were dishonest.3 A popular joke reinforces such statistics: ‘How do you know when politicians are lying? When their lips are moving!’ Nevertheless, honesty as such 189

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rarely figures as an election issue. Elections have become so involved with razzamatazz, pork-barrelling, claim and counterclaim, and above all with appealing to the hopes and fears of citizens, that their role in evaluating truthfulness tends to be minimal. This chapter begins by examining the ethical status of lying to assess how serious an evil moral thinkers have taken it to be, and whether there is any philosophical consensus on the acceptability of lying. Given that lying is an endemic and even, to a large extent, an accepted part of social interaction in general, is there a consistent ethical response to political statements considered to be lies? I put the question in this awkwardly cautious way because, while anecdotal evidence suggests that voters believe politicians lie regularly to them, and further – perhaps in a resigned way – that electoral politics requires politicians to lie, the notion of ‘lying’ used in political debate needs to be unpacked more carefully than sparring politicians, partisan citizens, and sensationalist headline writers care to do. Furthermore, I shall argue that political lying in the strict sense cannot be absolutely prohibited on ethical grounds. The chapter goes on to examine another notion of lying, particularly prominent during the twentieth century and lately revived: the ideologically motivated, or ‘sincere’, lie. This discussion leads into the broader issue of the style of language used by politicians, a style which encourages the charge of lying, but which can also be seen as their defence against unrealistically high popular expectations of politics (to which politicians themselves pander). If relatively indiscriminate charges of political lying continue to smoulder because of notorious cases of deliberate deceit in the past, some of which will be examined below, much of their fuel derives from the rhetorical nature of politics, where language is used not merely to describe but to persuade and motivate. Indeed, rhetoric helps to create the public sphere; and its disputatious method develops the shared understanding and judgement required for successful politics.

II Although ‘lying’ is often equated with deception in general, I use it in this chapter to denote a more limited range of deceptions, specifically: the uttering of a deliberate untruth or of a statement intended to mislead. For people may be deceived in a number of ways, including by the deliberate concealment of information, by dissimulation, and by suggestion. Furthermore, ‘lie’ as used here is not simply meant to indicate something that is not true, since – apart from the fact that the

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notion of truth itself is contested – perhaps no statement can ever comprehend the entire truth, and because untruths or incomplete truths are sometimes told in good faith. Though one might sympathize with popular frustration at ‘economy with the truth’, we must recognize that truth can never be complete, and that the intentions of the economizer – to mislead or not – cannot always be categorically identified. The charges of lying in politics are often unfortunately symptomatic of a partisanship that is reluctant to grant these points. It is also important to distinguish lying from secrecy. There is no doubt that with the increased involvement of government in so many areas of social and economic life, levels of secrecy surrounding government information have grown. Governments cite privacy considerations for withholding information in some cases, commercial-in-confidence considerations in others, and national security and defence considerations in still others. Secrecy creates a range of problems of its own, some of which overlap with lying, but I shall not pursue them here. The key difficulty in a modern democracy, logically insurmountable, is how to judge whether the level of secrecy in a particular matter is appropriate (which can only be judged if the information is known, and thus the secrecy breached). Nevertheless, not all secrets are lies. Can we acquire reliable guidance from ethical thinkers about the acceptability of lying understood as uttering statements with the deliberate intent to deceive? Augustine of Hippo and Immanuel Kant are prominent among the major thinkers who have taken a very strong stand against lying on ethical grounds. Augustine’s letter against lying to Consentius (Contra Mendacium, 420 AD) argued that a lie was never under any circumstances acceptable; it was always a sin, and to be avoided. Augustine advised that to prevent an evil, or to advance a noble cause, it is better to say nothing than to tell a lie. For his part, Kant argued that lying was not just a violation of our duty to others, but also the ‘greatest violation of man’s duty to himself’ as a moral being. By a lie, he continued, ‘a man … annihilates his dignity as a man’.4 Such a position, consistently held, would make life very difficult to live, as Benjamin Constant (among others) retorted. Kant replied to Constant that truthfulness was a duty we owed to everyone, including ourselves, not just because of the damage we do to ourselves and others as moral beings when we lie, but because to accept any lying would undermine the basis for human relations more generally: ‘To be truthful (honest) in all declarations is therefore a sacred command of reason prescribing unconditionally, one not to be restricted by any conveniences.’5

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In the Judeo-Christian tradition, where Augustine’s voice has some weight, the view that lying is intrinsically evil has been leavened by the recognition of life’s complexities. Lying was not elevated to the status of a major sin by being included, for example, in the Ten Commandments. And the Machiavellian outlook often ascribed to the Jesuits, that the end justifies the means, even suggests that lying can sometimes be virtuous. In fact, Augustine’s position has generated considerable debate within the Catholic Church, which ultimately endorsed a doctrine of ‘mental reservation’ as a way of balancing the sometimes competing claims of justice and veracity. In its broadest sense, this doctrine states that where there is a good reason (such as protecting a human life or keeping confidences) one may respond to a questioner with equivocal statements that are not lies and consequently avoid sinning. The doctrine of ‘mental reservation’ was pushed to its limits by the sixteenth century theologian Navarrus, who argued that it was enough to add – sincerely, of course – mental, unuttered qualifications to statements in order to make them true. This view was accepted by some Jesuits (for example, Sanchez SJ) and rejected by others (Laymann SJ), but it was condemned in 1679 by Pope Innocent XI because of the potential abuses of the truth it sanctioned. The doctrine of broad ‘mental reservation’ remains the official Catholic method of trying to distinguish lies as deliberate untruths, and the sin they embody, from statements that are ambiguous and intended only to avoid harm. Depending on one’s viewpoint, it is either a very fine distinction or a distinction without a difference, but one required because of the Catholic insistence that it is never permissible to lie. It nevertheless points to an issue that bedevils discussions of lying: what constitutes a ‘good reason’ to lie? (Or, in deference to Catholics, what is a good reason to equivocate?) On the whole, and in practice, Christians have neither endorsed lying in general nor prohibited lying in particular instances. That stance is not dissimilar across different moral traditions. To seek guidance from ethical thinkers on the issue of lying will only get us so far, for the state of the ethical debate might best be characterized as inconclusive. Systematic discussions of the issue of lying – as opposed to pious or thundering injunctions against it – have been rare, and views are diverse. Igor Primoratz has expertly mapped the various ethical theories about lying in an attempt to discover how we may be helped in dealing with practical questions of lying. The key problem is that while these theories all offer strong (though not necessarily the same) grounds to prohibit lying, they do not provide coherent grounds

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for judging the weight of the moral prohibition against lying as compared with the weight of other moral demands that may conflict with it.6 Recent ethical theories have sought to chart a course between act utilitarianism, which is too permissive in regard to lying, and Kantian deontology which is too rigidly prohibitive (as we have just seen), but none of them offers a cogent and definitive guide to determining moral choices and actions. Primoratz ultimately concedes that perhaps no such guide can be had, and that in the ethical realm we may be forced to rely on our ‘pre-philosophical’ judgements to hold together two ideas that are in tension: first, that lying is intrinsically wrong; and second, that it is not absolutely wrong. The fundamental theoretical issue is how we can add gravity to a presumption against lying; that is not yet resolved. While most people are (at least at first blush) opposed to lying, believing it to be evil, lying is so widespread a practice as to be commonplace in everyday life, in matters big and small. In reflecting on the paradoxical ethical status of lying, Judith Shklar described it as one of what Montaigne called ‘ordinary vices’, which include cruelty, hypocrisy, snobbery and betrayal: ‘the sort of [bad] conduct we all expect, nothing spectacular or unusual’.7 Not only is lying commonplace, it may play a positive social role, as when one compliments others on their looks. Indeed, lying is so important to everyday life, and to oiling the wheels of social intercourse, that the proposition that absolute honesty would be socially disastrous could easily be defended. Let us accept – to take an example connected to our general topic – that when politicians make a speech of welcome, or to open an event, they are likely to be mouthing (among other things) the social niceties that we expect in such situations: that they are ‘delighted’ or ‘honoured’ to be there, whether or not that is the case. Politeness is what we might call a ‘diplomatic lie’, one that is common and ethically unexceptional.8 Making laws and running a state, however, are not akin to opening a fete. And there is nothing polite about the political lies that come readily to mind. Perhaps chief among these is the Watergate affair in the early 1970s, the very name of which has become a byword for political lying and cover-up. In June 1972 a burglary occurred at the Watergate Hotel in Washington, DC, which aimed to disrupt the Democrat campaign for the presidential elections later that year. The incumbent President, Richard Nixon, declared that he had no knowledge of, or role in, the affair. This initial lie led to a series of subsequent deceptions. ‘Watergate’ dogged Nixon’s second term as President

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as he was pursued by investigative journalists9 and by Congressional investigations. It led to his threatened impeachment and eventual resignation in August 1974. The ‘Iran–Contra’ affair that occurred during President Ronald Reagan’s administration is another of the notorious political lies that may have coloured popular views about their prevalence. ‘Irangate’, as it soon became known, concerned the exchange in 1985–86 of American hostages held by Iran for weapons and the diversion of the proceeds to Nicaraguan rebels, both transactions contrary to acts of the US Congress and in violation of UN sanctions. Reagan established the Tower Commission in late 1986 to investigate these dealings, but denied knowledge of them. He was later forced to concede that he had misled the public, though he claimed it had not been deliberate. On 4 March 1987 he declared in a televised speech: ‘A few months ago I told the American people I did not trade arms for hostages. My heart and my best intentions tell me that’s true, but the facts and evidence tell me it is not. As the Tower Board reported, what began as a strategic opening to Iran deteriorated, in its implementation, into trading arms for hostages.’ One of the brokers of that arrangement, Colonel Oliver North, was later convicted of lying to Congress though the conviction was overturned on appeal.10 The Watergate affair profoundly shocked Americans about the behaviour of their senior politicians, and produced a deep scepticism that persists to this day. It also coloured the views of citizens in other democracies, who were alerted to the potential of their own governments to mislead them. Since Watergate, numerous questions about government integrity around the world have quickly been dubbed ‘scandals’, and had ‘gate’ added to their titles, whether or not they involve lying. Watergate led to some anguished considerations about the US political system by one of its most interesting philosophical analysts, Hannah Arendt, who regretted that ‘truthfulness has never been counted among the political virtues, and lies have always been regarded as justifiable tools in political dealings’.11 But does this simply mean that politics is a special realm with distinctive behaviour and standards, a position usually associated with the name of the famous Florentine political adviser Niccolò Machiavelli? Of his many quotations that might be cited here, let one suffice: Machiavelli declared that ‘the rulers who have done great things are those who set little score by keeping their word’.12 Machiavelli is on a list of distinguished thinkers for whom rulers were justified in breaking conventional ethical rules to preserve social and political order. For Plato, at the beginning of this tradition, lies

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were justified in order to maintain a just system. In The Republic, Plato had Socrates argue that ‘it pertains to the guardians of the city, and to them alone, to tell falsehoods, to deceive either enemies or citizens for the city’s welfare. To all other persons such conduct is forbidden’.13 Lies are useful as long as they lead to the good, and in Socrates’ ideal system the rulers are the best judges of the good. Socrates used the example of the Myth of the Metals to explain what he meant by a ‘noble lie’ that would justify why the ‘citizens of gold’ are the most worthy and should rule over those made of baser metals. But even Socrates was not certain that such a myth would be accepted by the Greeks. He further argued – in relation to the need to ensure that only the best men have sex with the best women so that the quality of the guardian class is maintained – that our rulers will have to administer a great quantity of falsehood and deceit for the benefit of the ruled … They must invent, I fancy, some ingenious system of lots, so that those less worthy persons who are rejected when the couples are brought together may on each occasion blame their luck, and not the rulers [when they fail to win good partners].14 Contemporary views of politicians are shaped by the notion that politics is a consequentialist undertaking, judged on its outcomes much more than on its intentions. As one of the most prominent representatives of consequentialism, Jeremy Bentham, explained, ‘falsehood, take it by itself … can never, upon the principle of utility, constitute any offence at all’.15 Government is given the task of producing order; it is ‘good’ to the extent that it achieves its aim, however it does so. We might be tempted at this point to give up any (but an emotional) opposition to lying in politics, especially if it gives rise to good outcomes. But there are a number of barriers in the way of such a straightforward conclusion in respect of representative democracy. For contemporary politics is more than simply the creation of order. Modern democracies – with representative legislatures filled by regular competitive elections within a framework of a free press and the rule of law – introduce a new set of issues into the longstanding ethical considerations surrounding rulership. Modern democracy is delegated decision-making; politicians are ‘representative’ of the people and make decisions in their place. The relationship between ruler and ruled is complicated not just by the fact that rulers are in some senses the servants of the ruled, but also by the fact that the traditional

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paternalism of rulers is nowadays unacceptable to citizens. The latter no longer feel that their rulers are all-knowing, nor that they can be assumed always to have the public interest at heart. Indeed, the key political relationship is no longer deference, as between unequals, but trust, as between equals. The supposed equality between politician and citizen introduced by democracy undermines the usual justifications for political lies. As Bok has put them, these justifications are ‘the worthiness, superiority, altruism of the liar, the rightness of his cause, and the inability of those deceived to respond “appropriately” to hearing the truth’.16 The ethical issues that confront democratic politicians are numerous, and the codes that parliamentary institutions adopt to set standards of ethical behaviour have in recent times grown in number. Many of the issues concern avoiding conflicts of interest and corruption, that is, avoiding the desire or temptation to use the political process and public funds for private gain. Registers of parliamentarians’ interests have been created, codes of conduct devised, and offices of commissioners for parliamentary standards enabled.17 But while there may be a greater interest in such ethical issues, their solution is by no means any easier. What constitutes the ‘public interest’ remains contested, as does the question of how it should be advanced. And charges of lying reflect this contest. Yet despite the egregious examples of political lying cited earlier, and excepting the ‘diplomatic lie’, I believe that lies as statements intended to deceive are rare in public pronouncements by politicians. This is so because lies are usually easy to detect. The checks and balances built into constitutional systems help to expose this sort of deception, as does a free press. If examples of political lies can nevertheless be brought readily to mind, it is perhaps because they are exceptional.

III If political lying is, in fact, limited, we need to explore further why citizens believe so firmly to the contrary that it is widespread. The notoriety of some lies is doubtless part of the answer. But a more important reason is connected with the use and misuse of language in politics, a phenomenon closely related to the rise of mass politics (including liberal democracy) during the twentieth century. On the one hand, political language has become ideological and vague; on the other, it has become legalistic and precise. In either case, but for different reasons, the technique can be misleading and is usually infuriating.

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Ideological language is characterized by the employment of broad concepts and by the ability to justify any and every action in terms of those concepts. An ideologist works within a particular worldview, wherein established understandings of basic political concepts might be turned upside down. And while we may be accustomed to considering ideology only as the driving force of the totalitarian states of the twentieth century, considered in the broadest sense – as organized, articulated and consciously held systems of political ideas – it also plays a role in liberal democracies. The Soviet state created in 1917 under the sway of communist ideology was proclaimed officially as ‘free’ and ‘democratic’, but under definitions of those concepts that virtually reversed their usual meanings. The Soviet model attracted many supporters abroad, trading on the good name of freedom but banking on the suppression of contrary evidence. The Soviet empire in Eastern Europe was overthrown in 1989 by people no longer prepared to view the world through communisttinted lenses, and the Soviet Union itself collapsed in 1991 under the weight of economic failures, popular discontent and elite disillusionment. Although communism is now discredited because of the Soviet experience, some examples can still be seen of its characteristic attacks on ‘bourgeois democracy’. Boyle, for example, recently argued that ‘it has become necessary for pro-big business parties to lie because they share a program for the massive redistribution of income and power from the majority of people to the small minority of corporate rich’.18 George Orwell wrote about the habits of mind of those who, for want of a better word, he described as ‘nationalists’, but whom we might describe as ‘ideologists’. He argued that such people – often intellectuals – would suppress or distort facts if they did not suit their view, or rewrite history. But it is not so much indifference to objective truth to which Orwell objected, for as he rightly pointed out there is often no way of verifying what has been claimed, but the justification that these ‘nationalists’ felt in rearranging the facts or records to score against opponents rather than examining the facts.19 The sense of loyalty to a cause which Orwell cited as the core feature of this ‘nationalism’ is very powerful. (Similar effects of the dominance of particular paradigms can be seen within the development of natural science, as Kuhn argued,20 and in many other fields to which the notion of ‘paradigm’ has been extended.) Commitment to an ideological cause has been offered as the explanation of the war by the ‘coalition of the willing’ against Iraq in 2003. Conducted by liberal democracies, this war occurred despite the fact

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that every reason publicly given for it has been subverted by the evidence. Saddam Hussein’s regime did not possess weapons of mass destruction, as claimed, and therefore did not present a clear and present danger to American interests. The supposed links between Hussein’s regime and the terrorist Al-Qaeda group – also used to justify the war – did not exist. (The claim that Saddam Hussein was a brutal dictator is true, but is not the issue here; if international relations were conducted on the basis of invading countries whose governments we do not like, there would be a breakdown of international order.) Robert Manne has argued that the US invasion of Iraq, and Australian support for it, were premised on the belief – sincerely held, but nevertheless demonstrably wrong – that Iraq was a danger. Iraq, in other words, slotted into an ideological view of the world held by neo-conservative foreign policy-makers in the United States and their foreign supporters. This Manne describes as the ‘sincere lie’, where the demands of the worldview are paramount. ‘Nothing is more common in ideologically driven politics than the triumph of conviction over evidence and reason.’21 Sympathy with the worldview means that the evidence is not fully examined or challenged, or if it is partial (as much evidence in social life often is) it is distorted to fit the desired action. Ideologies have been a feature of politics since the early twentieth century. Whether or not a political system is an electoral democracy, most politics since then have been mass politics, engaging masses of the people in large-scale social and economic projects. While in nondemocracies the use of coercion remains a part of these projects, persuasion is nevertheless essential to motivating increasingly educated populations and workforces. Ideologies have a role in illuminating social and political situations, yet they can also blind their followers to what is really happening. Orwell observed that mass politics lent itself to ideological bias. There were no easy solutions to these problems, and abstinence from politics was not an option. What was required, he argued, was a moral effort to recognize and try to prevent the influence of such preferences and distortions.22 It is not just ideological language that is used to deceive. Orwell, in his well-known 1946 essay on ‘Politics and the English Language’, charged that ‘political language … is designed to make lies sound truthful and murder respectable’.23 While he was chiefly referring to communism and fascism, the imprecise or formulaic use of language can also obscure important information in representative democracies. Orwell dedicated his essay to the fight against political orthodoxy which he feared would eventually stifle freedom in Britain as it had

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elsewhere. He accused some writers of intending to deceive their readers by using loosely words that have different or contested meanings, or by relying on pretentious, habitual or meaningless words or phrases. Allowing ready-made phrases to construct sentences was not just laziness, in Orwell’s view. It highlighted ‘the special connexion between politics and the debasement of language’. Political orthodoxy was hostile to independent thought; speakers putting forward the ‘party line’ became like machines, ritually incanting the same phrases. That was because political prose had become ‘largely the defence of the indefensible’, whether it was the exploitation of colonial territories by imperialism, the purges of the innocent by communism, or the terrible destruction of lives in modern wars. Politicians consequently resorted to euphemism and vagueness, since telling the truth would lose them support. In our own day, expressions such as ‘friendly fire’ and ‘operations’ for ‘freedom’ conceal the brutal realities of wars, just as ‘downsizing’ the workforce masks the more unpleasant aspects of unemployment. Complaints against the poor use of language have become common, whether in politics, business or academia, though there is a long tradition of attempts to straighten out bureaucratic jargon, in which Gowers’ splendid book was a landmark.24 Evidence of a recent ‘decline’ of such language, however, tends to consist of anecdotes fuelled by elitism. Don Watson, a former Australian prime ministerial speechwriter, claims that there has been a decline of public language, but he is more generally unimpressed by the quality of public utterance in Australia since the beginning of European settlement.25 Watson argues that the decline is connected with the lack of deployment of any great, abstract ideals in Australian political life, though similar arguments can be heard in countries that embrace such ideals. Disappointment at the lifelessness of political language should be separated from its uses to deceive; should a stylishly expressed lie meet with approval? While Orwell criticized language that was vague, we should also note that language which is especially precise may be designed to obscure and deceive. Indeed, politicians have become adept at the sort of precision that allows them some room for manoeuvre (including changing their minds or reversing their course) without being labelled liars or promise-breakers. For example, if a politician declares that she ‘has no intention’ to resign, and then resigns soon after, her earlier statement is unassailable, even if it will be criticized as a lie. Sometimes there are good reasons not to forewarn others about a decision of this kind, such

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as when it would create a ‘lame-duck’ leader. Nevertheless, this sort of legalism can reach absurd lengths. When, on 26 January 1998, President Bill Clinton publicly denied a sexual relationship with a White House intern – ‘I did not have sexual relations with that woman, Miss Lewinsky’ – he was telling the truth if ‘sex’ is considered only as copulation, which defies customary usage. (Whether Clinton’s personal indiscretions with Miss Lewinsky should have assumed the political dimensions they did, including a threat to impeach Clinton, is a separate debate.) Ideological language usually indicates a self-deception that precedes the deliberate deception of others: states that in the twentieth century proclaimed the dawn of a new freedom were mass prisons and charnel houses. At the same time politicians in liberal democracies have made an art-form of statements that allow them the room for manoeuvre required by politics. Politicians alone should not be blamed for this, since the demand for certainty comes from citizens who ask more of politics than it can deliver. But while such statements may be defensible in certain circumstances, they can also serve to deceive. Where to draw the line between legitimate and illegitimate uses of political language has to be decided by informed debate.

IV I have tried to be precise about the concept ‘lying’ in this chapter because there are a great many political utterances that might, but ought not, be considered lies. For example, when politicians describe their, and their opponents’, political programmes we see a mixture of judgement, calculation and exaggeration. Since such programmes are often complex, and since their outcomes are assessed by their promoters using the most benign assumptions, it is not difficult for an opponent to dub them wishful thinking and sow confusion and fear about less desirable outcomes. Within the context of political debate there is ample opportunity for politicians to clarify their programmes and to correct misunderstandings (deliberate or otherwise) of their intentions. The preceding discussion of political language, however, helps us to understand better why modern politics is beset by charges of lying. Language itself is the key. Politics is composed of statements designed to influence behaviour. It is rhetorical. As a never-ending work in progress, it does not merely describe, it also creates. ‘Rhetoric’ in the modern understanding has a much diminished reputation than its classical roots, and tends nowadays to denote simply a style of deliv-

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ery. But rhetoric is a matter of content as well as of style. It is a dialogue, and thus an encounter, between politicians and citizens. In democratic politics, paternalism is an unacceptable shortcut in this relationship. The task is not to lie to encourage citizens to accept a decision that might ultimately be good for them, but involves some cost they would be reluctant to pay. That was Machiavelli’s way: ‘men are so naïve, and so much dominated by immediate needs, that a skilful deceiver always finds plenty of people who will let themselves be deceived’.26 Instead, the task is to explain and educate. In this respect, the democratic politician is an educator. Conal Condren has rightly emphasized the centrality of language to politics. As he explains, ‘the language used is predominantly performative. Words are employed less to convey information or communicate facts than to affect action or attempt to shape attitudes to one or other political possibility’.27 Rhetoric even helps to shape possibilities by building confidence in particular outcomes. The rhetorical heart of politics helps to illuminate much of what we seem to dislike about politicians: their verbosity and slipperiness. Verbal jousting can often seem inconclusive and unsatisfactory, especially because this is a field where there are few decisive arguments. As I have already noted, politicians, along with those who play important roles in political dialogue such as journalists, have become adept at playing these language games. Their concern is not chiefly with truth, but with how their words will affect their audience. Journalists, for example, often design questions to trap politicians into a definiteness they cannot possibly maintain, but are not allowed to deny. Politicians are in an awkward position. If they were to give frank answers such as ‘I don’t know’ or, ‘given the circumstances as I currently understand them, I predict that such-and-such is likely to happen’, they would soon be outmanoeuvred by the pedlars of certainty. Condren has consequently pointed out that the accusation of lying is remarkably elastic … Mistakes, faulty recollections, apparent statements of fact that can be easily challenged are all readily designated as lies. This is in part because very few contentious or interesting statements in politics can be regarded as the truth, the whole truth and nothing but the truth. In turn, this is because the issues are not given but crafted and adjusted through discourse.28 The important and frequently invoked idea of ‘the common good’ is rhetorical. Shils argued that even where such ideas are honestly

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invoked, ‘they are ambiguous. It is very difficult to define them precisely’. They give rise to disagreements that often turn not simply on facts, but on the relative weights to be assigned to different valued conditions. Shils nevertheless concluded that ‘the common good’ is a practicable ideal, ‘even though there is likely at any given moment [to be] disagreement about its substance’.29 It is worth adding that politics probably could not do without it. The rhetorical competition of politics, however, can also undermine confidence in politics as competitors make ever more serious charges against each other. Shklar explained that ‘as each side tries to destroy the credibility of its rivals, politics becomes a treadmill of dissimulation and unmasking’.30 Politics, she argued, has become ritualized because there is a limited number of roles that politicians can play in a game of claim and counterclaim. The judgement required by citizens to assess these claims is not fully developed because their role is largely as passive observers. Even if there are more allegations of lying than actual lies in politics, the effect is much the same: a diminished confidence in the political system. The dynamic of political rhetoric may contribute to diminished confidence, but it does not necessarily translate into disobedience. It is nevertheless one of the levers that has been exploited by the ideological and demagogic opponents of politics. They are particularly keen to interpret rhetoric as lying. Lenin, for example, declared that ‘parliament is given up to talk for the special purpose of fooling the “common people”’.31 Hitler argued that a politician was ‘the kind of man whose only real conviction is lack of conviction, combined with offensive impertinence and an art of lying, often developed to the point of complete shamelessness’.32 This is because such ideologists believe that they alone possess the truth about the proper organization of life. All they really have to offer, however, is the ‘Big Lie’ about a supposed easy solution to complex problems. That rhetoric and lying can be so easily conflated, for whatever purpose, suggests that politics itself needs to be better understood. As Arendt explained, politics is not a way of realizing the absolute truths of the religious or ideological system makers. It is concerned with matters that do not have right or wrong answers: in Plato’s terms, with opinion (doxa), not knowledge. It is a matter of discussion and judgement: ‘debate constitutes the very essence of political life’.33 And it is a matter for debate among non-specialists. To debate political issues means to make choices and judgements that cannot be verified by objective criteria, as Plato believed knowledge could be established by

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philosophers. The validity of these judgements ‘depends on free agreement and consent; they are arrived at by discursive, representative thinking; and they are communicated by means of persuasion and dissuasion’.34 Not all opinions are equally valid, however, and better or worse opinions may be formed depending on the evidence and arguments used in the process of forming a judgement. Whether philosophers should become involved in politics, and how, has been an issue since Plato advocated ‘philosopher-kings’. R. M. Hare observed that the contributions made by philosophers have been mixed: I am ashamed to say that many philosophers are no more clearheaded than anybody else who holds forth in public about legislative proposals. And there is a danger that philosophers will speak, often quite ably, to a political brief, arguing for causes which they support on political [rather than philosophical] grounds.35 Their most valuable role is to encourage rigorous thinking among politicians and citizens alike. Hare’s discussion, however, reinforces the view that politics is a different kind of discursive activity from philosophy. Just as important as deciding whether politicians have lied to citizens (and what the merits of such lies might be) is whether they can be made to account for their actions. The separation of powers, the procedures of the legislature, ‘freedom of information’, legislation, the ‘ombudsman’ and other institutions (including civil society and the free press) help to ensure that information about what politicians have said and done is made available to citizens, and thus that the latter are able to make more informed choices at elections. In drawing lessons from Watergate, Arendt emphasized our reliance on a free press to expose the damaging lies of politicians: ‘so long as the free press is free and not corrupt, it has an enormously important function to fulfill and can rightly be called the fourth branch of government’.36 There is a genuine concern, however, over the increasing pressure to which the mechanisms of accountability are subject. I have already mentioned the encroachments of governmental secrecy. But politicians have also become distanced and sometimes even shielded from the truth by their own advisers, so they can persist in a politically advantageous error without lying. This seems to have been crucial to the ‘Children Overboard’ affair in Australian politics in 2001.37 Late that year, the Australian government claimed that asylum-seekers heading towards Australia in an overcrowded boat threw their children overboard in an

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effort to be rescued by the Royal Australian Navy, rather than turned away. The government used this incident in its election campaign theme of being strong on border protection, and charged that asylumseekers had ‘jumped the queue’ for refugee places in Australia. It won the election (though whether the ‘children overboard’ claim was crucial in that win is debatable). Afterwards the evidence used for this claim – photographs of children in the water – were revealed as being taken at a later time, namely after the refugee boat had begun to sink.38 A poll in August 2004 revealed that 60 per cent of Australians surveyed believed that the Prime Minister had deliberately misled the Australian public on the ‘children overboard’ issue before the November 2001 Federal election.39 There is no doubt that citizens were misled because an inaccuracy about the photographs was not corrected in a timely fashion by public officials, but despite investigations that included a parliamentary inquiry the evidence about whether politicians lied in this affair remains inconclusive. The fundamental long-term danger that lying in politics presents for democracy is a decline in trust, and yet sometimes (even if only very few times) lying is necessary. One response to this dilemma, proposed by Bok, is that the criteria for lying to the public be publicly debated and agreed in advance; only then can ‘deceptive practices [be] … justifiable in a democracy’.40 But this test is much too hard, for agreement over justifiability even between people of good will is unlikely. Thus, in cases where my personal view would tend towards leniency to the liar on the grounds of ultimate public benefit, such as statements about an impending devaluation of a currency, or changes in taxation, or epidemics, Bok maintains that ‘it is hard to see’ how such lies could be justified.41 And though she seems well aware of the speculation and even fear to which a politician’s ‘no comment’ often gives rise, she contends that these are preferable to a lie. Here Bok’s underlying position is actually closer to Kant than to Bentham. To consent in advance to criteria for justifiable political lying would either provide guidelines so broad as to be endlessly debatable (for example, almost every word in the following potential guideline could be subject to wide interpretation: ‘lies to protect the state when it is under imminent threat of harm from external sources are justifiable’) or so narrow as to be prohibitive. Such criteria simply could not provide for the highly particular situations that politicians must constantly face. Political accountability is important because it allows a public judgement to be made about political lies within their context, but this is a process that can only occur after – though not too long after – the event. For it is

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not so much lies themselves that undermine our political system, but the inability to bring liars to account.

V My discussion of politics and lying may seem rather unsatisfactory and hair-splitting, especially to those who want to focus their frustration or anger at politicians on some easily identified and ethically uncontentious misdeed. Yet, to begin with, the ethical position on lying is not clear-cut. There are few moral philosophers whose opposition to lying is absolute, and most maintain that lies must be judged singly yet give us no reliable way of weighing the conflicting moral demands. Furthermore, politics itself is a consequentialist undertaking, and even if politicians were inveterate liars, we must weigh up the consequences of their lies. Nor should we discount the fact that whether or not to lie in particular circumstances can be a very hard decision: ‘Hard because duplicity can take so many forms, be present to such different degrees, and have such different purposes and results.’42 But to draw attention as I have to these arguments is in no way to give carte blanche to politicians to make statements intended to deceive, especially because politicians play an important role in nurturing the bond of trust that lies at the base of modern democracies. Politicians do, of course, utter lies. But the status and consequences of particular statements must be examined more rigorously than hitherto, and that requires both information and judgement. Charges of lying levelled against politicians are often vague, difficult to substantiate or politically motivated; ‘lying’ tends to be conflated with instances of politicians changing their minds on issues, making promises, and keeping secrets. Politicians change their minds on issues, but are reluctant to be seen as inconsistent; yet persisting in error is a far worse offence. Politicians may need to break a well-intentioned promise if a change in circumstances means that keeping it would be worse than breaking it. And secrecy is sometimes required so that decisions can be made calmly without the additional burdens of public pressure or posturing which limit manoeuvre. Political actions are so highly contextual that blanket approval or prohibition of such methods cannot be given. It is likewise impossible to be definitive about the circumstances under which, or the subjects about which, a politician should never lie. Such a formula would have to contend with the scale of the lie, the desirability of the intended outcome, how much of it was achieved

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and, even if a substantial amount was achieved, whether the damage done to trust by the lie outweighed the benefits. All these are judgements to which unassailable values cannot be assigned. Perhaps the best that can be said is that in the process of maintaining trust between citizens and their representatives (and thus the legitimacy of government), lies should be exceptional and last resort, and be made explicitly for the good of the political system as a whole. The only way we can begin to judge whether politicians have put national interest above partisan advantage, even if those judgements are necessarily ex post facto, is to demand a great deal more accountability from them. We may not be able to construct inviolable ethical rules to guide politicians’ decision-making, but that does not mean that we should leave particular decisions entirely to their discretion. Information and debate are crucial to a healthy political system, to evaluating the reasons why particular decisions were taken, and to assessing their consequences. Politics is different, not because it inhabits a different ethical realm, but because it is so important to a civilized life. As Bok has put it: ‘The argument that those who raise moral concerns are ignorant of political realities … ought to lead, not to a dismissal of such inquiries, but to a more articulate description of what these realities are, so that a more careful and informed debate could begin.’43 Such a debate is ongoing, and its grounds are likely to be shifting. Critics of politicians assume they can take the moral high ground: that it is never acceptable to break a promise or to tell a lie. This is clearly absurd, as I have argued elsewhere,44 and as this chapter demonstrates. And much of what is charged as ‘lying’ is actually an aspect of political rhetoric. Judging the circumstances that make a lie acceptable is hard work for both politician and citizen. Politics itself is in trouble if the information is not available or we are not prepared to make the effort. Discussing the issue of lying in politics raises important issues about the nature of politics itself. Popular discontent with politicians may be based on the paradox of modern democracy which pretends that citizens are in charge but largely relegates them to the role of spectators. Democracy, as Dunn has persuasively argued, ‘is the name for what we cannot have – yet cannot cease to want’.45 Democracy also encourages citizens in unrealistic expectations of politics and politicians. Understanding better the role and limitations of politics in complex societies such as ours would likely assist in moderating popular expectations, exposing ideological bias and reducing the indiscriminate charge of political lying. Expanding access to informa-

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tion would assist in identifying genuine lies and judging their consequences.

Notes 1 Murray Goot, ‘Distrustful, Disenchanted and Disengaged? Public Opinion on Politics, Politicians and the Parties: An Historical Perspective’, in David Burchell and Andrew Leigh (eds.), The Prince’s New Clothes: Why do Australians Dislike Their Politicians? Sydney: UNSW Press, 2002. 2 Roy Morgan, Morgan Poll Finding No. 3778, 2004, www.roymorgan.com/ news/polls/2004/3778. 3 Meg Bartin, ‘Poll Finds Little Faith in Politicians Worldwide’, International Herald Tribune, 19 November 2004, www.iht.com/articles/2004/11/18/news/ poll.html. 4 Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor, Cambridge: Cambridge University Press, 1991, p. 225. 5 Immanuel Kant, ‘On a Supposed Right to Lie from Philanthropy’, in I. Kant, Practical Philosophy, trans. and ed. Mary Gregor, Cambridge: Cambridge University Press, 1996, p. 613. 6 Igor Primoratz, ‘Lying and the “Methods of Ethics”’, International Studies in Philosophy 16 (1984), pp. 36–7. 7 Judith Shklar, Ordinary Vices, Cambridge, MA: Belknap Press, 1984, p. 1. 8 Sissela Bok, Lying: Moral Choice in Public and Private Life, Hassocks: Harvester Press, 1978, pp. 175–6. 9 Carl Bernstein and Bob Woodward, All the President’s Men, London: Secker and Warburg, 1974. 10 John Tower, Edmund Muskie and Brent Scowcroft, The Tower Commission Report, New York: Bantam Books, 1987; Lawrence E. Walsh, Iran-Contra: The Final Report, New York: Times Books, 1994. 11 Hannah Arendt, ‘Lying in Politics: Reflections on the Pentagon Papers’, Crises of the Republic, New York: Harcourt Brace Jovanovich, 1969, p. 4. 12 Niccolò Machiavelli, The Prince, ed. Quentin Skinner and Russell Price, Cambridge: Cambridge University Press, 1988, p. 61. 13 Plato, The Republic of Plato, trans. A. D. Lindsay, London: J. M. Dent and Sons, 1935, 389b, pp. 69–70. 14 Plato, The Republic, 459c-d, 460a, pp. 148–9. 15 Jeremy Bentham, An Introduction to the Principles and Morals of Legislation, ed. J. H. Burns and H. L. A. Hart, London: Athlone Press, 1970, p. 205. 16 Bok, Lying, p. 174. 17 Noel Preston and Charles Sampford, with C. A. Bois (eds.), Ethics and Political Practice: Perspectives on Legislative Ethics, Sydney and London: Federation Press and Routledge, 1998. 18 Peter Boyle, ‘Why only 7 per cent Believe Politicians’ Promises’, Green Left Weekly, 1998, www.greenleft.org.au/back/1998/335/335p15.htm. 19 George Orwell, ‘Notes on Nationalism’, The Collected Essays, Journalism and Letters of George Orwell, ed. S. Orwell and I. Angus, Harmondsworth: Penguin Books, 1970, vol. 3, p. 421.

208 David W. Lovell 20 Thomas S. Kuhn, The Structure of Scientific Revolutions, Chicago: University of Chicago Press, 1970. 21 Robert Manne, ‘The Complex Politics of Lying’, The Age, 26 July 2004. 22 Orwell, ‘Notes on Nationalism’, pp. 430–1. 23 George Orwell, ‘Politics and the English Language’, The Collected Essays, Journalism and Letters of George Orwell, vol. 4, p. 170. 24 Ernest Gowers, The Complete Plain Words, Harmondsworth: Penguin Books, 1973. 25 Don Watson, Death Sentence: The Decay of Public Language, Sydney: Random House Australia, 2003, pp. 68–70. 26 Machiavelli, The Prince, p. 62. 27 Conal Condren, ‘Trust, Lies and Politics’, in David Burchell and Andrew Leigh (eds.), The Prince’s New Clothes: Why Do Australians Dislike Their Politicians? Sydney: UNSW Press, 2002, p. 147. 28 Condren, ‘Trust, Lies and Politics’, p. 148. 29 Edward Shils, ‘The Virtue of Civility’, The Virtue of Civility: Selected Essays on Liberalism, Tradition, and Civil Society, ed. Steven Grosby, Indianapolis: Liberty Fund, 1997, p. 351. 30 Shklar, Ordinary Vices, p. 67. 31 V. I. Lenin, ‘The State and Revolution’, Selected Works, Moscow: Progress Publishers, 1975, vol. 2, p. 271. 32 Adolf Hitler, Mein Kampf, trans. Ralph Manheim, Boston: Houghton Mifflin, 1971, p. 67. 33 Hannah Arendt, ‘Truth and Politics’, Between Past and Future: Eight Exercises in Philosophical Thought, Harmondsworth: Penguin Books, 1977, p. 241. 34 Arendt, ‘Tuth and Politics’. 35 R. M. Hare, ‘The Role of Philosophers in the Legislative Process’, Essays on Political Morality, Oxford: Clarendon Press, 1989, p. 6. 36 Arendt, ‘Lying in Politics’, p. 45. 37 Patrick Weller, Don’t Tell the Prime Minister, Melbourne: Scribe, 2002. 38 David Marr and Marian Wilkinson, Dark Victory, Sydney: Allen and Unwin, 2003. 39 Roy Morgan, Morgan Poll Finding No. 3771, 2004, www.roymorgan.com/ news/polls/2004/3771. 40 Bok, Lying, p. 181. 41 Bok, Lying, p. 179. 42 Bok, Lying, p. xvi. 43 Bok, Lying, p. 170. 44 David W. Lovell, ‘Political Promises – What Do They Mean?’, Quadrant 408, July 2004. 45 John Dunn, Western Political Theory in the Face of the Future, Cambridge: Cambridge University Press, 1979, p. 27.

12 Torture and Political Morality John Kleinig

The United States is committed to the worldwide elimination of torture and we are leading this fight by example.1 Less than two months after the terrorist attacks of 11 September 2001, Jonathan Alter wrote a Newsweek column titled ‘Time to Think about Torture’.2 Although it was initially greeted with a good deal of shocked indignation, it has become painfully clear that for many Americans – and particularly for those in power – it has been a time to think about torture. Within a few months of 9/11, a series of high-level memoranda were produced within the US executive branch which addressed the treatment of Taliban and al-Qaeda detainees and the constraints that should be observed in interrogating them. Subsequent memoranda were devoted to ‘precising’ the notion of torture and interpreting international conventions in a way that would provide American interrogators with maximum flexibility in their attempts to gain terrorrelated intelligence.3 Early efforts to gain salient information were said to have been unsuccessful. It was time for the ‘gloves to come off’.4 This shift was not without precedent and probably should not have caught anyone by surprise. Thirty years previously, the British had employed similarly harsh tactics when responding to terrorism in Northern Ireland, and 15 years later the Israelis formally sanctioned the use of ‘moderate physical pressure’ in their encounter with terrorism. From an ethical perspective, how has this come about? Although both punitive torture and instrumental torture were once commonly employed by those in authority, a major shift occurred in countries influenced by the Enlightenment. Torture came to be seen as cruel, a violation.5 Part of the reason may have been a revaluation of the body and of assaults on it. In contrast to the Platonic notion of the 209

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body as the prison house of the soul, the Manichaean idea of the body as the seat of evil, or even certain religious views of the mortal and corrupted body as something to be flagellated and ultimately cast off in favour of an immortal soul, the Enlightenment gave much greater significance to the invasion of bodily space. An assault on the body was ipso facto an assault on the person, a person seen increasingly as an agent with rights and a self-prescribed conception of the good, and not merely a destiny to fulfil. Terrorism, however, has prompted a revaluation of these values; or, perhaps more accurately, it has generated a good deal of moral fudging. Although a few writers have boldly come out in favour of torture, the preferred approach has been to finesse the concept and gerrymander its boundaries. Ironically, the Enlightenment not only fostered an aversion to torture, its writers also championed the moral tools that would be used to critique their opposition to it. Cesare Beccaria adopted a consequentialist ethic that is now being used to question what might otherwise be seen as deontological side-constraints against torture.6 Not that tough-minded political consequentialism began with him. Earlier modern roots can be found in Niccolò Machiavelli and his ends-justifyingmeans morality (realpolitik) that has recently been resurgent.7 Even when deontological values have been recognized, they have often been asserted within a larger consequentialist framework. And thus those who would seek to draw the moral line at torture are confronted with some version of a ‘ticking bomb’ scenario, designed to function both as a reductio and also as the wedge for a more extensive use of torture (or its cognates). The camel’s nose, once admitted, has been followed by its greater bulk.8 In this chapter I propose to focus on four issues: 1) the nature of torture; 2) the moral case against torture; 3) whether official torture is ever justified; and 4) an ethically acceptable policy regarding torture.

What is torture? As the epigraph to this chapter makes clear, the United States is officially opposed to torture. Along with many other countries, it is a signatory to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (albeit with certain reservations). But even as it has espoused its opposition to torture, it has employed anti-terrorist tactics that many consider to amount to torture.

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Part of the problem lies in delineating the boundaries of torture. Relatively few international documents define ‘torture’, and those that do deliberately define it broadly. The best-known attempt is found in the UN Convention against Torture: 1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.9 Several features of this account warrant comment. First, the kind of suffering to which it refers is not limited to physical pain. It does not exclude the possibility that some torture may involve either predominantly or exclusively ‘mental’ suffering. Now, no one would doubt that – for humans, at least – a ‘mental’ element often figures as a significant component in the ‘exquisiteness’ of torture, since physical pain, along with the utterances of the torturer, can exercise the imagination in ways that sharpen or intensify the suffering. And sometimes the torture may comprise only the credible threat of physical suffering – for example, repeated exposure to staged executions or the ravages of wild animals. Nevertheless, it might be thought that reference to an exclusively ‘mental torture,’ in which there is not even a threat of physical violation, has cut one of its essential conceptual moorings.10 When it was reported that female interrogators at Guantánamo Bay were sexually teasing devout Islamic detainees or wiping or threatening to wipe what was said to be menstrual blood on them, did this constitute torture (or a threat of torture)?11 No doubt it was offensive, humiliating and degrading. But we might think that it was stretching it to characterize it as torture. Marcy Strauss, in a paper designed to show the moral corruptiveness of the ticking bomb scenario, imagines a

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situation in which the bomb-setter, unbroken by physical torture, then witnesses his beloved child being tortured. As the child’s torture increases and its suffering becomes increasingly heart-rending, the bomb-setter capitulates and reveals the bomb’s location.12 What is going on here? Does torture shift from the bomb-setter to the child, or is the torture of the child part of the continuing torture of the bombsetter? Although something may be said for both options, the former is probably truer to the central paradigm of torture. Second, the UN definition does not indicate what constitutes ‘severe’ pain or suffering, or anything about its persistence. Does (or may) a single zap of a Taser or squirt of oleoresin capsicum constitute torture? Severity, surely, is a matter of degree, a function at least of intensity, persistence and, probably, reversibility of damage. Gouging out eyes, genital mutilation, subjecting the body to the rack and screw belong to what we classically associate with torture. But what about waterboarding, being made to stand or sit for long periods in a ‘stress position’, being subject to incessant loud music, bright lights, sleep deprivation, and so on? Or consider the Abu Ghraib detainee who was made to stand on a box, hooded and cloaked, with wires/electrodes attached to his body.13 He was told that any movement would lead to his being shocked. Or what of the naked prisoner exposed to an unmuzzled and apparently vicious dog that, if unleashed, would attack his vital organs or genitals? Were such prisoners tortured or only threatened with torture? Not every technique that we might wish to oppose will resonate in quite the same way as ‘torture’. In response to this complicated continuum of harshness some have wanted to distinguish between torture and torture-lite.14 This way of making the distinction can cut both ways. On the one hand, using the t-word to characterize harsh tactics that are not as viscerally repugnant as those classically associated with torture nevertheless connects them with torture and might be thought to bring them under the same umbrella of prohibition. On the other hand, to refer to such conduct as ‘torture-lite’ may be thought to distinguish it morally from torture simpliciter – as ‘safe’ torture, like a safe beer or a low-fat food product. Third, the UN account links torture to conduct that is in some sense officially sanctioned, though it does not assert that torture (any more than punishment) must be officially initiated.15 The account is not intended to be comprehensive, but is purpose-restricted. It is, after all, ‘for the purposes of this Convention’ and thus has in view the conduct of governments. This is reinforced by the second clause, which refers to

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the legitimacy of member states promulgating understandings that have ‘wider application’. Fourth, the pain caused must be intended either as an end in itself or as a means to other ends, and not as a mere side-effect. Whatever the moral significance of the distinction between pain and suffering that is intended and pain and suffering that is incidental to treatment (and it may not have too much moral significance if it is sufficiently foreseeable), torture always seems to require that the suffering is deliberately inflicted. Fifth, the UN account does not yoke torture to any single aim, but points to a variety of reasons why such deliberate suffering may be inflicted. However, David Luban notes that of the five traditional ‘aims’ of torture – the victor’s pleasure, terrorizing into submission, punishment for wrongdoing, the extraction of confessions and intelligencegathering – only the last finds (‘ticking bomb’) support within liberal societies.16 Despite the good intentions of the UN drafters, I suspect that they have drawn the boundaries of torture too broadly, exploiting its iconic status for political purposes. And, as often happens, one political strategy has begotten another, as some countries have responded to its breadth by substituting for it their own, more narrowly crafted understandings, designed to differentiate between ‘torture’ (which is condemned) and ‘harsh tactics’ (which are considered acceptable). Some such differentiation has figured prominently, albeit controversially, in US debates – in the various memoranda that have come to frame ‘the torture debate’ and in the official resistance that was levelled at the socalled McCain amendment to the 2006 Defense Appropriations Act, which sought to outlaw all interrogatory techniques that could be said to constitute ‘cruel, inhuman, or degrading treatment’.17 As should now be clear, one reason for the vigorous debate about the scope of torture is the fact that human conduct does not come neatly packaged but frequently exists on some sort of continuum. Our conduct is, moreover, extremely varied and, though the lines we draw to characterize it as a rather than b or c are not arbitrary, they are usually freighted with normative human interests. Even if – now for reasons of condemnation – we18 have acquired an interest in distinguishing torture from other forms of imposition, it may be difficult to differentiate it with any precision. The difficulty we have may also be connected with the fact that, over the course of human history, torture has had a changing press. Only a few centuries ago, the torture of suspects was common practice (albeit

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as a matter of prerogative rather than of law) and its commonness was not just a function of its frequency but also of its ‘legality’ (understood in a broad sense). The term ‘torture,’ in other words, unlike ‘murder’, was not originally crafted for the purpose of its condemnation, even though it has now come to be widely and vigorously condemned. Without some reasonably fancy footwork, ‘torture’ may not be up to the task of incorporating all that we might now desire to condemn. And so I propose, for reasons that should become clear, that we do not succumb to the temptation to cut it loose from its traditional associations, but instead treat it as a peculiarly painful and physical form of a more general class of conduct, usefully characterized by the UN Convention as ‘cruel, inhuman, or degrading treatment’. That indeed is the way the UN Convention does it, except that it includes within the domain of ‘torture’ forms of ‘cruel, inhuman, and degrading treatment’ that I would not. What is significant about the UN Convention is that it is no less condemnatory of ‘cruel, inhuman, or degrading treatment’ than it is of torture – a point to which I will return. Certainly, ‘torture’ carries symbolic resonance, as much for the graphic quality of the images it evokes (rack and screw, etc.) as anything. There is something visceral and unsubtle about bodily pain, the ‘twisting’ (Latin tortura) that will produce it and the ‘writhing’ it produces, and so substitutes for a broader range of impositions.19 Nevertheless, it is just one instance of a form of conduct that is ‘cruel, inhuman, or degrading’, and it is the fact that it is the latter that is largely constitutive of its unacceptability.

What is wrong with torture? What makes torture so troubling? As I have indicated, much of what is to be said against it is captured by the phrase ‘cruel, inhuman, or degrading treatment’. To the extent that we focus on its classical expression, there is the fact that pain is deliberately caused to another.20 Torture is an act of cruelty (Latin cruor: gore, spilled blood), and though cruelty may reflect indifference to suffering, in the case of torture the suffering is wilfully caused. The pain of torture stimulates our imaginative recoil, especially to the extent that we are able to identify with it. However, this point needs more development, for pain is sometimes viewed as a neutral physiological response whose moral quality resides exclusively in contextual factors. Thus J. Baird Callicott states that ‘with all soberness I see nothing wrong with pain. It is a marvelous method, honed by the

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evolutionary process, of conveying important organic information’.21 On this account, what is wrong with torture would not be the fact of pain or even its intentional infliction but the reasons for inflicting it – whether out of a sadistic impulse or the need to warn someone of danger. Whether interrogatory torture was wrong might thus be resolved into a discussion of the adequacy of the investigatory reasons – the harms to be avoided, the warrant for inflicting it on the particular person, the likelihood of its yielding the necessary information, and so forth. But there is something counterintuitive about seeing pain quite as neutrally as this. Indeed, apart from the odd case of the masochist, pain seems to be just the kind of experience we would want to avoid or diminish. Pain is best seen as the prototypical evil, to whose relief, ceteris paribus, we ought to be committed. That would still accommodate the cases Callicott has in mind, when pain serves as a warning or protective mechanism. And it might not rule out its deliberate infliction in certain cases. We would simply need adequate justification – either the consent of the person involved or some justifying good that could not otherwise be secured.22 As in the case of Callicott, however, interrogatory torture would not be ruled out; it is simply that the bar would be raised. The sheer pain or distress involved in torture, along with a contextualized assessment of the reasons for its infliction, may take us some way to understanding what is wrong with its infliction. At least it helps to give an account of why it is wrong to torture animals – it is an act of cruelty. But pain does not capture the full story or why the torture of humans is so deeply repugnant. A further feature, which Henry Shue characterizes as involving an ‘assault on the defenceless’,23 not only adds to our understanding of the repulsiveness of animal torture but also plays an important role in articulating its wrongness when inflicted on humans. There is relatively little ‘contest’ in torture, in which the tortured and torturer do not even confront each other as unequally matched competitive opponents. Whether or not he fully realizes it, the tortured is completely in the power of the torturer and part of the torturer’s purpose is to impress this on the tortured.24 The torturer acts with impunity. The utter defencelessness of the tortured helps to distinguish torture from mere cruelty. I may cruelly kick a dog, but unless the pain is inflicted in the context of and as an expression of ‘absolute’ control, it will not constitute torture. The international conventions also characterize torture as inhuman. Although this is sometimes interpreted as inhumane, I think it is

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intended to reflect a failure of regard that the torturer displays. A basic requisite of our dealings with others is that they are mediated by a consideration of others’ agency, the fact that, in an important sense, they are one with us, and that their feelings, their perceptions, their reasons, should weigh heavily in how we treat them. The torturer reverses this by savaging the very features that connect us. My point is not to deny that there can be reasons for overriding the claims constituted by others’ feelings, perceptions, and reasons. But that is very different from making them targets of attack. Torture fails as basic moral regard. There is an additional dimension to this, captured by the claim that torture brutalizes those who inflict it. Those who prescribe torture fail in human regard. Those who are required to inflict it often have to anaesthetize themselves to what they are doing, whether through some ‘mental bestialization’ of those they are torturing, some form of what Robert Jay Lifton has spoken of as ‘doubling,’ or through recourse to alcohol and other ‘insulators’. Sometimes a society that has accustomed itself to torture is brutalized. More than that, though, torturous assault works at undermining our distinctively human characteristics. Torture dehumanizes and degrades. Humans are choosers, possessing capacities that enable them to reflect on their situation and make choices concerning how they should respond. The torturer exploits and compromises this capacity. Depending on the kind of torture that is being inflicted – whether it is for sadistic, punitive, redemptive or informational purposes – the torturer acts on the tortured in ways designed to break the person’s will and reduce him to an object. His capacity as a chooser, an independent being who is able to assert himself in relation to others, is overwhelmed by the suffering that is inflicted. The tortured is commandeered. The point of the torture is to make him a creature of the torturer’s bidding. The interrogatory torturer seeks to deny whatever importance the tortured person places on the reasons he has for refusing to reveal what he knows.25 In an effort to capture the distinctive wrong of (at least interrogatory) torture, David Sussman suggests that the torturer seeks to turn his victim against him- or herself. The pain that is suffered or the suffering that is undergone, most assuredly the victim’s own pain or suffering, betrays him or at least seeks to betray him.26 His resistance – including that which is most individually and distinctively him – is captured and exploited by the torturer and turned against him; his tormentor hijacks him and – through his bodily and mental anguish – seeks to have him

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betray who he most deeply is.27 The torturer takes something that is central to a person’s individuality – whether it is universally possessed, like his body (though it is his body), or more particularized, such as his loves or religious commitments, and uses them against him.28 Our deepest self is made to cry out to us to accede to the torturer’s demands. And the tortured person may be subsequently plagued with feelings of guilt and shame at what his body ‘made him do’.

Is torture ever justified? The considerations advanced in the previous section may seem strong enough to condemn all torture. Certainly they are strong enough to counter most of the reasons for inflicting it. Nevertheless, there remains a residue of support for torture in the limited case in which it is deployed as an interrogatory technique. This is the domain of the ‘ticking bomb’. If the only way in which some imminent catastrophe can be avoided is for someone with relevant information to be tortured, why not use it? On the standard account, the architect of impending doom has been captured by authorities but refuses to disclose information that will enable it to be aborted. The ticking bomb argument has been frequently used since 9/11, though the British and Israelis also appealed to it in their dealings with terrorism. Will it suffice?29 I propose to respond to this question in this section by focusing on the moral warrant for inflicting torture in extreme cases. In the next section I consider a moral policy regarding torture. The first thing to be noted about the standard ticking bomb argument are the considerable epistemic demands it places on those who appeal to it. It presumes a very high degree of certainty that a ‘ticking bomb’ exists – that is, that there is a bomb, that it is ticking, that its detonation is ‘imminent’ and that when detonated it will explode. It also presumes a high degree of certainty that the disaster caused by its explosion will be of considerable magnitude. In addition, there is certainty that the person tortured has the relevant information, will divulge it under the pressure of torture and that this information will enable the authorities to avert the disaster. These are extremely high epistemic expectations and, though it might be questioned whether they are all necessary, it is highly unlikely that in a real-world situation we will ever be in a position to satisfy enough of them. Defenders of the ticking bomb argument will no doubt argue that it holds us to an unrealistic standard. We do not have to be 100 per cent

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certain on every count. If the stakes are high enough, we may be a bit less demanding about the existence of the ticking bomb or about the informational value of torturing the person in our custody. If a million or even a thousand lives are at stake, should we refuse to torture one person who in any case is likely to have been involved in placing us at risk? Or, in what are no less dramatic terms, if our national security is at risk or our country is under attack, may we not do what we must to save lives and a way of life? These are not rhetorical questions, though I think they are often meant to be. What we need to do is concretize them in the acts of those who use the argument. The point of the ticking bomb argument is not to establish that torture, under certain circumstances, is justified, but to provide its political advocates with the licence they believe they need to secure ends that we all agree are important. The ticking bomb – wherever it has been used – has been the salesman’s foot in the door. It has always been exploited by those with the power to act on it to ‘secure’ the ends they have deemed sufficiently important – lives, yes, but usually expressed more grandiosely as ‘national security’ so that we all may fear if we do not concede. Even if we could satisfy the epistemic requirements to a high degree, it might be wondered whether torture would be justified. Certainly we may kill in self-defence, but torturing in self-defence (to defuse the ticking bomb in our midst) is a much more radical step. It is not for nothing that the various UN conventions permit war and killing in certain circumstances, but eschew torture altogether: ‘No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.’30 Once we allow that self-defence – even the defence of 1,000 lives – may justify torture we allow anything. As noted earlier, Strauss extends the ticking bomb argument to its natural conclusion. The architect of the bomb will not relent even after we have shockingly tortured him: So, the police turn to the only option they have available. They bring into the interrogation room the suspect’s beloved four-yearold son. And they start to torture the child. As they strip the child naked, the suspect says nothing. They strike the child. The suspect reacts; he is obviously tormented by the treatment of his child. The police apply electrodes to the child’s genitals. After the child is shocked several times, the suspect caves and tells the police the location of the bomb.31

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Why not? Some of our squeamishness about moral compromise has been reflected in recent discussions of dirty hands – the view that some right acts nevertheless leave a residue of wrong on the hands of those who perform them. Although it is common for those involved in the dirty hands debate to accept its paradoxical claim that ‘it is sometimes right to do wrong’, this is by no means a foregone conclusion. A more appropriate ethical response (and one that I will argue is more acceptable from a policy perspective) may be to recognize that in some situations however we act we will act badly. An official confronted with a ticking bomb will not be justified in using torture to reveal its location; but neither will that official be justified in jeopardizing a large population of innocents. We may simply have to accept that our morality is not capable of resolving every dilemma with which life may confront us. Our current cohort of interrogators, however, have a different and seemingly more plausible strategy. They seek to distinguish torture from other forms of harsh treatment. Although torture is condemned as beyond the pale, what is done to terrorist detainees does not sink to the level of torture. Some moral mileage can be gained from this distinction, but I doubt whether it gives what is wanted by those who appeal to it. As noted earlier, there is little reason to draw a firm moral distinction between torture and other forms of ‘cruel, inhuman, or degrading treatment’. Even though not every coercive interrogatory strategy will qualify as cruel, inhuman or degrading, many of those currently employed fall into that category. That was why the McCain amendment was so vigorously opposed.

Should we develop a torture policy? Suppose, though, that we accept either a ticking bomb argument or, less dramatically, an argument that permits ‘cruel, inhuman or degrading treatment’ that does not amount to ‘torture’. Might we be justified in enshrining them in policy? I believe not. An initially simple though ultimately quite complex reason for not doing so is provided by the slippery slope argument. Although not all slippery slope arguments are valid, some are. If the high probability of descent and the impending catastrophe can be given empirical support, there is no problem with appeals to it. Critics of the ticking bomb argument for torture (and of other cruel, inhuman or degrading treatment) have not failed to notice that those who make such appeals

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always seek to justify its use under much less stringent epistemic circumstances than those implicit in the initial argument. Just because the epistemic conditions of the ticking bomb argument are unlikely to be realized, the argument is not used ex post to show how some actual instance of torture averted a catastrophe but ex ante to justify a policy or at least a practice of using torture in cases in which people are strongly suspected of knowing about or engaging in terrorist conduct. To the extent that figures are available, we know that a ticking bomb has been unearthed and defused in at most a tiny fraction of cases.32 Officials who defend the use of such techniques refer generally to their value but are noticeably reticent about filling in details. We are in fact far more aware of cases in which suspects were innocents and/or in which extracted ‘information’ was false or misleading, designed more to alleviate suffering than to signal surrender. A similar argument can be made concerning the use of cruel, inhuman or degrading treatment. Even if we express a margin of sympathy for the use of such treatment in critical situations, what we inevitably find is their cumulative conjunction and escalation until the interrogators give up or get what they think they want. This is not simply a function of the ‘secrecy’ of such interrogations, though undoubtedly a lack of transparency compounds the problem. The 1987 Landau Commission provided Israel with an official justification for the use of ‘moderate physical pressure’ in ticking bomb cases. But over the years, as the Israeli High Court recognized in 1999, this narrow permission was breached time and again, in both frequency and severity. The simple but sad fact is that reasons of state or national security become occasions of doing ‘what one must’.33 Realpolitik has its own consequentialist ethic. The slide is significantly assisted by a ‘division of labour’ to which Luban draws attention.34 Those who take responsibility for approving policies that allow for cruel, inhuman or degrading treatment are not those who impose it. The latter can and do argue that they were doing what was expected of or permitted to them. It is the prevalence of a spirit of realpolitik that militates against the use of ‘torture warrants’, an official strategy advocated most visibly by Alan Dershowitz.35 As he puts it: torture is going to occur anyway, and it is better that it occurs above rather than below the radar screen, so that we may know what is being done in our name. It should occur under court and medical supervision. Visibility and accountability will, he believes, minimize both its frequency and severity.

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The idea of a torture warrant is that a judge would be presented (ex parte?) with a case for torturing a particular person and would decide whether, on the basis of ticking bomb-type considerations, the person should be subjected to medically supervised torture.36 Such decisions would have similarities to those used to justify surveillance and entry warrants, except that the governmentally mandated activity would here be torture. Although any approved torture would be extremely painful,37 it would be designed not to cause permanent physical damage. Dershowitz suggests that the insertion of a sterilized needle under the fingernail might qualify.38 Beyond the ‘medical’ advantages, Dershowitz believes that torture warrants would have additional benefits: the rights of suspects would be better protected and the amount of torture inflicted would tend to diminish (both in severity and numbers involved). Note, however, that although Dershowitz advocates the use of torture warrants on the assumption that the ticking bomb argument can be made to work, any actual process of warrant issuance would almost certainly be too cumbersome to implement in such circumstances: he indicates that prior to coming before a judge, an investigator should have convinced himself that torture was necessary; moreover, most judges would ‘require compelling evidence before they would authorize so extraordinary a departure from our constitutional norms’.39 This does not look very promising for most of the ticking bomb scenarios that are meant to put us on this path. Do we have any reason to think that the institution of torture warrants will reduce the amount of torture? Consider an institutional situation that is analogous to the proposed torture warrants. Under the Foreign Intelligence Surveillance Act (FISA), formally similar warrants are already required for the surveillance of those suspected of involvement in terrorist activity.40 In 2002, all 1,228 applications were approved by the appointed judges (albeit two of them only after appeal), in 2003 1,724 out of 1,727 applications were approved in whole or part, and in 2004 1,754 of 1,758 applications were approved (and none denied).41 The pattern is clear. One could of course argue that this shows how having such a system in place informally serves to weed out unworthy cases. Were we privy to the cases actually reviewed, we might be able to draw that conclusion. But they are ex parte and sealed, and that no doubt would also be the fate of torture warrants. We would be asked to take on trust that the judges appointed to the reviewing role would not be ideologically motivated or otherwise compromised. We have reason to be sceptical of this independence and

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impartiality. Many – including Dershowitz himself – have pointed to the tendency of judges to be deferential to the executive in times of crisis.42 The Korematsu case, which unsuccessfully sought to challenge the internment of many thousands of East Coast Japanese-Americans during the Second World War,43 was not an aberration. And, as we have recently seen from the disclosure of warrantless searches authorized by President Bush, what FISA did was simply deter those who wished to engage in problematic surveillance from seeking approval, conducting it instead under the radar screen.44 And so it would be with torture warrants. We are dealing here with ‘practical necessities’ that governments will secure no matter what. The mechanisms of accountability are ‘futurized’. For the present, the law provides a veneer of respectability for conduct that has little respectability. Furthermore, apart from the unfortunate implication that supervised and sanitized torture would be morally better than its unsupervised bedfellow, we have additional reasons for thinking that its frequency and severity would not diminish. Although we do not know exactly how many Palestinians were subject to torture when it was subject to government sanction and ‘oversight’, the numbers were very high and, if anything, increased over time. What is more, even though the Israeli High Court eventually forbade it, torture continued.45 Torture for reasons of state does not stop; it just moves under the radar screen. And if not under the radar screen, then off the screen to foreign sites. It is outsourced by means of extraordinary rendition.46 If we are determined to minimize the use of torture, we must resolutely oppose it rather than offer it moral refuge.47 Oren Gross and others have pointed out that Dershowitz the lawyer places too much faith in the capacity of the judiciary to resolve difficult problems. A better ‘solution’, if we are convinced that ticking bomb-type cases may arise, is to follow the route historically taken by civil disobedients.48 If one – public servant or army interrogator – believes that a situation is serious enough to justify breaking the law, that person should break the law and be prepared to face the consequences. The civil disobedient will have an opportunity to defend his actions and, if the case proves to be sufficiently like that proposed in the ticking bomb scenario, we may respond in a way that recognizes the dilemma in which the person has found himself and the effort that went into the decision he made. From a moral point of view, it is strategically important that we go by this route. If we allow in advance that there exists a set of circumstances in which torture or other cruel, inhuman or degrading treat-

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ment would be justified, it will be politically exploited. Even if we refuse to embody such an exception in a legal provision, the nature of our political reality – and certainly our current political reality – is such that it will be (as the ticking bomb argument is) used to make palatable a reality that will in any case occur. Such is the moral seriousness of torture that we should insist on an absence of hooks that would allow those who resort to it to convince either themselves or others in advance that they would be justified in using it. Genuine accountability requires that no prior authorization, moral or other, can be argued. This is morally onerous, but not too onerous. In so far as those who resort to cruel, inhuman or degrading treatment resort to it in our name, we can place ourselves in their shoes and determine how what was done in our name measures up to what we stand for and desire to preserve. In judging them we judge ourselves as well.

Notes 1 President George W. Bush, Statement by the President on the United Nations International Day in Support of Victims of Torture (26 June 2003) http://www.whitehouse.gov/news/releases/2003/06/20030626-3.html. 2 Newsweek, 5 November 2001, p. 45. 3 Many of these memoranda are collected in Karen J. Greenberg and Joshua L. Dratel (eds.), The Torture Papers: The Road to Abu Ghraib, New York: Cambridge University Press, 2005, though others have come to light since then. 4 Cf. the comment of the former Chief of the CIA Counterterrorist Center, Cofer Black, before the House and Senate Intelligence Committee: ‘there was “before” 9/11 and “after” 9/11. After 9/11 the gloves come off’ (26 September 2002). http://intelligence.senate.gov/0209hrg/020926/ witness.htm. 5 Judith Shklar argues that it is not until Montaigne (1533–92: ‘Of Cruelty’) that cruelty comes to be seen not only as a significant vice but as the chief of vices. See Ordinary Vices, Cambridge, MA: Harvard/Belknap Press, 1984, chapter 1: ‘Putting Cruelty First’. One early and influential critic was Cesare Beccaria, whose Of Crimes and Punishments (1764; trans. Henry Paolucci, Indianapolis: Bobbs-Merrill, 1963) was influential in penal reform. 6 As occurred in Jeremy Bentham’s unpublished critique of chapter 16 of Beccaria’s Of Crimes and Punishments. An edited version of Bentham’s essay ‘On Torture’ (written during the period 1777–79, but unpublished during his lifetime) is printed in W. L. and P. E. Twining, ‘Bentham on Torture’, Northern Ireland Legal Quarterly 24, no. 3 (1973). 7 Robert D. Kaplan’s writings in defence of American ‘self-interest’ have been particularly influential with members of the current US administration. See his Warrior Politics: Why Politics Requires a Pagan Ethos, New York: Vintage Books, 2003. 8 I do not wish to argue that a consequentialist ethic inevitably supports the use of torture. Although opponents of torture have sometimes argued that

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9

10

11 12 13 14 15

16 17 18

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consequentialism is unable to provide a sufficiently robust critique of its use, others have claimed that it is consequentially contraindicated. See Rod Morgan, ‘The Utilitarian Justification of Torture: Denial, Desert, and Disinformation’, Punishment and Society 2 (2000), and Jean Maria Arrigo, ‘A Consequentialist Argument against Torture Interrogation of Terrorists’. http://www.usafa.af.mil/jscope/JSCOPE03/Arrigo03.html. Article 1 (ratified 10 December 1984; in force since 1987). http://www. hrweb.org/legal/cat.html. For a listing of countries that are not parties to the Convention, see http://www.unhchr.ch/tbs/doc.nsf/newhvstatbytreaty? OpenView&Start=1&Count=250&Expand=1.1#1. After the US ratified the UN Convention against Torture, it enacted its obligations in 18 U.S.C. §§2340-2340A, where it also defined torture as intended to ‘inflict severe physical or mental pain or suffering’. It included in the latter ‘the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality’. http://www.capdefnet.org/fdprc/ contents/shared_files/titles/18_usc_2340.htm. It thus allowed that the administration of so-called ‘truth serums’ – sodium amytal, sodium pentothal or scopolamine – may constitute torture, a position some have supported. See Linda M. Keller, ‘Is Truth Serum Torture?’ American University International Law Review 20 (2005). But will ‘torture’ stretch that far, or does it now become simply a term of political convenience? See Maureen Dowd, ‘Torture Chicks Gone Wild’, New York Times, 30 January 2005; ‘The Women of Gitmo,’ New York Times, 15 July 2005. Marcy Strauss, ‘Torture’, New York Law School Law Review 48 (2003/4), pp. 273–4. The Abu Ghraib photos can be seen at http://www.antiwar.com/news/ ?articleid=2444. See Mark Bowden, ‘The Dark Art of Interrogation’, The Atlantic Monthly 292, no. 3 (October 2003), pp. 53ff, for a development of this distinction. It is made clear that the definition is not intended to cast doubt on the legitimacy of any national legislation the provisions of which have ‘wider application’. David Luban, ‘Liberalism, Torture, and the Ticking Bomb’, Virginia Law Review 91 (2005). HR 2863, Department of Defense Appropriations Act 2006, Sec. 8154, 8155. For an evocative discussion of the seductiveness of that locution, see M. B. Foster, ‘“We” in Modern Philosophy’, in Faith and Logic, ed. Basil Mitchell, London: Allen & Unwin, 1957. It is, nevertheless, interesting to note that some of the so-called ‘stress positions’ currently used by interrogators, and often said to fall short of torture, are nevertheless based on the same ‘philological’ principle. Pain, of course, need not be physical, even though it is with physical pain that I am here concerned. The fact that we may inflict mental pain on another is no doubt one reason why it is particularly tempting to extend the term to cover ‘mental torture’, ‘Animal Liberation: A Triangular Affair’, Environmental Ethics 2 (1980). This of course is not intended as a complete account. I am, for example, leaving to one side the significance of the distinction between pain inten-

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23 24

25 26 27

28

29 30

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33

tionally inflicted and pain as an unintended side-effect. In the case of torture the pain is always intentionally inflicted. Henry Shue, ‘Torture’, Philosophy and Public Affairs 7 (1977–78), p. 130. See, for example, the sickening story of the torture of ‘the defiant detainee’ Habibullah, at the Bagram Collection Point in Afghanistan: Tim Golden, ‘In U.S. Report, Brutal Details of 2 Afghan Inmates’ Deaths’, New York Times, 20 May 2005. In this case, every effort by Habibullah to assert a semblance of psychic independence and dignity occasioned a brutal response. Hardly less sickening was the follow-up: Tim Golden, ‘Years after 2 Afghans Died, Abuse Case Falters’, New York Times, 13 February 2006. Presuming, of course, that the tortured person has something to reveal. We consider the epistemic issue in the third section. David Sussman, ‘What is Wrong with Torture?’, Philosophy and Public Affairs 33 (2005). Sussman intriguingly suggests that if we want to look at offences analogous to torture we might consider rape (often, of course, inflicted as a element in torture). As with the person who has been raped, the person who has been tortured may feel permanently at unease with how she or he has become. It should be noted, however, that Sussman prescinds from the issue of the absoluteness of the wrong that is constituted by torture. Not every interrogatory tactic that leads a person to turn against or betray something deeply held would constitute torture. Consider interrogatory tactics that have the effect of scrambling a person’s understanding of the object of commitment – say, tactics that lead a person to believe falsely that his country is, after all, vicious and oppressive. He now comes to think that his country no longer deserves his loyalty and so provides information that he would not otherwise have given. This need not involve torture and does not constitute full-blown betrayal. I have dealt in greater detail with some of the issues treated here in ‘Ticking Bombs and Torture Warrants’, Deakin Law Review 10 (2005). UN Convention against Torture, art. 2. It is something like this understanding that lies behind Kant’s memorable (notorious?) remark that, when a murderer is executed, ‘his death … must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable’ (The Metaphysics of Morals, trans. and ed. Mary Gregor, Cambridge: Cambridge University Press, 1996, p. 106). Strauss, ‘Torture’, p. 274. A few cases have been cited. More commonly, however, politicians talk generally about countless lives saved and plots foiled but avoid specifics. Or, if they do cite foiled plots, they connect this with torture-gained intelligence only by implication. We do, however, know that an important piece of false intelligence that was used to justify the Iraq War – which concerned Saddam Hussein’s training of al-Qaeda operatives in biological and chemical warfare – was extracted under torture in Egypt. See Robert M Pillar, ‘Intelligence, Policy, and the War on Iraq’, Foreign Affairs 82, no. 2 (March/April 2006). Invocations of national security can be greatly overdone. The Landau Commission spoke of PLO terrorists as threatening ‘the very existence of society and the State’ (formally, The Report of the Commission of Inquiry

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38 39 40 41

42

into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, published in English translation by the Israel Government Press Office in October 1987. This quotation comes from an excerpted version printed in the Israel Law Review 23 (1989), p. 157). Whatever may have been the ambitions of those involved, that was hardly an accurate depiction of their acts. And, appalling as they were, I do not think that US national security was deeply threatened by the events of 9/11. Yet much of the official language suggested otherwise. This was not the bombing of Pearl Harbor. No doubt American interests were damaged on 9/11 – as they were earlier when the US embassies were bombed in Nairobi and Dar-es-Salaam, and even when the World Trade Center was bombed in 1993. But such events fell significantly short of the kind of threat that is conjured up by appeals to national security. Luban, ‘Liberalism, Torture, and the Ticking Bomb,’ pp. 1447–50. For example, Alan Dershowitz, ‘Reply: Torture without Visibility and Accountability is Worse than with it,’ University of Pennsylvania Journal of Constitutional Law 6 (2003). Here there are probably insuperable issues of medical ethics. Almost every professional association opposes medical assistance with or oversight of torture, even though there has been an unfortunate history of medical involvement. See, for example, British Medical Association, The Medical Profession and Human Rights: Handbook for a Changing Agenda, available in part at http://www.bma.org.uk/ap.nsf/Content/The+Medical+Profession+ and+Human+Rights+-+Recommendations. Its advocates sometimes claim that the fear of torture may be as effective as, if not more than, its infliction, so that official approval would not necessarily imply its infliction. Dershowitz indeed argues that if torture warrants are approved, then a suspect would know that there would be no inhibitions about inflicting it and might therefore be more inclined to talk (Why Terrorism Works: Understanding the Threat, Responding to the Challenge, New Haven, CT: Yale University Press, 2003, p. 159). Such an argument, however, will take one only so far. Dershowitz, Why Terrorism Works, p. 148. Dershowitz, Why Terrorism Works, pp. 158–9. Under the PATRIOT Act (s. 215), even this is too specific. See, for 2002, http://www.fas.org/irp/agency/doj/fisa/2002rept.html; for 2003, http://www.fas.org/irp/agency/doj/fisa/2003rept.pdf; and for 2004, http://www.fas.org/irp/agency/doj/fisa/2004rept.pdf. Although the number of cases heard by the court has risen significantly in recent years, the court has approved nearly every application made to it. The federally appointed judges who sit on the FIS Court individually hear applications in secret, and hear only the government’s side. Moreover, for ‘national security’ reasons, it is not possible to challenge the basis for an application should information gathered subsequently be used in court. The scope of the Act (originally passed in 1978 after the Watergate scandal) was broadened by the PATRIOT Act. See John C. Yoo, ‘Judicial Review and the War on Terrorism’, George Washington Law Review 72 (2003); Alan M. Dershowitz, ‘The Role of Law during Times of Crisis: Would Liberty be Suspended?’ in Harry M. Clor (ed.), Civil Disorder and Violence, Chicago: Rand-McNally, 1972.

Torture and Political Morality 227 43 Korematsu v. United States, 323 U.S. 214 (1944). 44 See the series of articles by James Risen and Eric Lichtblau in the New York Times, commencing on 16 December 2005, especially ‘Bush Secretly Lifted Some Limits on Spying in U.S, after 9/11, Officials Say’, New York Times, 16 December 2005: A1. More generally, see James Risen, State of War: The Secret History of the C.I.A. and the Bush Administration, New York: Free Press, 2006. 45 See, for example, Public Committee against Torture in Israel, Back to a Routine of Torture: Torture and Ill-treatment of Palestinian Detainees during Arrest, Detention and Interrogation, September 2001–April 2003. http://www.stoptorture.org.il. 46 See Association of the Bar of the City of New York & Center for Human Rights and Global Justice, Torture by Proxy: International and Domestic Law Applicable to ‘Extraordinary Renditions’, New York: ABCNY and NYU School of Law, 2004; available at The Record (of the Bar Association of the City of New York) 60 (2005). 47 See Arrigo, ‘A Consequentialist Argument against Torture Interrogation of Terrorists’. 48 Oren Gross, ‘Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience’, Minnesota Law Review 88 (2004).

13 Military Obedience: Rhetoric and Reality Jessica Wolfendale

Introduction The military institution is justified by the existence of independent political communities with sometimes competing interests. But while nation-states are justified in maintaining military forces to protect their interests, they do not have carte blanche in how they use those forces. The laws of war, as laid down in the Geneva Conventions and other international treaties, strictly limit when and how military force may be used. Furthermore, the military in most Western countries claims to be bound by high moral and legal professional standards.1 According to military rhetoric, military personnel are supposed to be people of courage, integrity, obedience, honour and discipline. They are bound to follow the laws of war and are obliged to disobey orders that violate the laws of war. According to the Australian Defence Force website, for example, the good officer ‘complies with directives, orders and policies in a positive and mature manner, but challenges and reports unethical/ illegal orders or behaviour’.2 Similarly, the US West Point Military Academy Cadet Disciplinary Code states: ‘cadets are expected to exercise good judgment at all times. These include situations not covered by instructions or cases in which orders are obviously illegal or inappropriate’.3 Military law in most countries supports this view: ‘just following orders’ is no longer accepted as a legitimate defence in cases where illegal or immoral orders have been carried out.4 According to these statements, military obedience is not mindless obedience. Instead, it should be tempered by judgement and experience – good soldiers are expected to disobey illegal or immoral orders.5 Modern soldiers should in theory never commit crimes of obedience.6 228

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Yet ordinary military units have been and still are committing atrocities. The abuse and torture of prisoners in Iraq was perpetrated by ordinary Army reservists with the encouragement of Military Intelligence and CIA officers.7 During the Vietnam War, American and Australian troops were involved in torture, rape, and massacre, sometimes with the tacit consent and even active participation of their commanding officers.8 Not only are atrocities such as these occurring, but they are not even roundly condemned by the military hierarchy. Why is there such a discrepancy between rhetoric and reality? How has military obedience become a crime of obedience? In this chapter I argue that the discrepancy between rhetoric and reality points to a fundamental problem within the military institution. If the military institution is to be morally justified it must be committed to training military personnel in reflective obedience – obedience governed by moral judgement. According to military rhetoric, ideal military personnel are able to embody and protect the values that the military stands for, even under the stress of combat. Many will fail to live up to these ideals but, as I demonstrate, the cause of crimes of obedience is far more serious than the failure of individuals to live up to professional ideals. The cause of such crimes is linked to current military training practices that deliberately and systematically undermine the ability of military personnel to embody military virtues. Their training thereby undermines the military’s claims to be a profession. In the first section I argue that only reflective obedience is consistent with the military’s claim to be a profession. Using an Aristotelian virtue ethics approach,9 I show that military virtues cannot be unreflective emotional dispositions; they must be guided by wisdom. This view is supported by military rhetoric and military law which clearly show that military obedience is intended to be reflective obedience. This picture of virtuous obedience provides a point of contrast for the second section, in which I analyse the kind of obedience and psychological dispositions developed through modern military training methods. I argue that, contrary to the military rhetoric, the psychological dispositions created by modern training methods are fundamentally in conflict with the capacities needed for reflective obedience, and instil dispositions that make crimes of obedience more likely. Finally, I consider whether there is a solution to the discrepancy between rhetoric and reality. Given that modern training methods produce efficient soldiers, perhaps it is inevitable that creating an effective military force means creating soldiers who might violate the moral constraints (the laws of war) that justify the military’s very existence.

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The limits of military obedience Obedience is often claimed to be a central military virtue, but what it means for obedience to be a virtue is rarely explained. For example, Colonel Anthony Hartle claims that ‘for the profession to perform its function, each level within it must be able to command the instantaneous and loyal obedience of subordinate levels. Without these relationships, military professionalism is impossible’.10 He writes that obedience and moral integrity are the ‘sine qua non of the military institution’.11 But he, like other writers, does not offer a definition of virtuous obedience and he does not explore whether obedience as developed through military training is virtuous obedience. Before assessing what the virtue of obedience entails, we must know what a virtue is. Aristotelian virtue ethics According to Aristotle the moral virtues are states of character connected to and partly constitutive of human flourishing – eudaimonia.12 Human flourishing in this sense refers to the distinctive ends and functions (the telos) of human life – ‘what we need, or what we are, qua human beings.’13 Good human functioning therefore aims at the production of happiness through the exercise of characteristically human ends. Aristotle argues that the distinctive telos of human life is not the life of nutrition and growth (which is shared by plants and animals), but the exercise of our rational capacities. We have the capacity to deliberate about the nature of the good life and about the actions that promote that good. The exercise of this capacity for practical wisdom (phronesis) is what makes us distinctively human. As Aristotle writes, ‘the function of a man is an activity of the soul which follows or implies a rational principle’.14 So good human functioning involves, and is partly constituted by, the exercise of rational deliberation. For Aristotle, therefore, virtuous action requires not merely the possession but the exercise of reflective moral agency.15 The virtues cannot be just any emotional state or character trait that contributes to a good human life; they must be governed by practical wisdom. Even natural dispositions such as compassion or generosity that can be the basis for virtuous action are not virtuous unless they are governed wisely. The practical wisdom that guides the virtuous agent derives from a two-step process. It involves, as Richard Sorabji explains, deliberation about the correct action in a particular case, and deliberation about what is required in a more general sense from the conception of the

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good life.16 In other words, phronesis refers not simply to the ability to deliberate about the best means to achieve one’s immediate aims; it also involves the ability to deliberate about what things (pursuits, behaviours, etc.) best lend themselves to living a good life.17 This means that our chosen actions reveal our character because they reflect our conception of the good.18 Unless we act from such wisdom we cannot be said to act from choice and our actions cannot be virtuous even if they are actions that a virtuous person would perform. Far from being unthinking emotional dispositions, the virtues are manifestations of rational deliberation: they are expressive of the agent’s voluntary choice.19 What does this analysis of virtuous behaviour imply about virtuous military obedience? The virtue of obedience As the above discussion makes clear, the virtues are a manifestation of rational choice and practical wisdom, the exercise of which is part of human flourishing. As such the virtues are not only instrumentally valuable, they are also valuable in their own right. Therefore, if obedience is to count as a virtue, it must be an expression of rational choice. It cannot be blind, unthinking obedience. It might appear unproblematic to claim that virtuous obedience must be governed by moral judgement, but this claim is not as straightforward as it seems. The problem is this: obedience requires that I suspend my moral judgement and substitute another’s judgement in place of my own. As such, the concept of obedience governed by my moral judgement seems to be a conceptual mistake. Can suspending moral judgement be virtuous? Being virtuous requires that we guide our emotional dispositions by the exercise of practical wisdom. If obedience by definition involves the substitution of another’s judgement for one’s own, then how could it ever be virtuous to be obedient? It is worth noting that Aristotle did in fact consider obedience to be a virtue, but only for slaves and women and precisely because he believed that they lacked the requisite reasoning skills to govern their actions by practical wisdom.20 Obedience has sometimes been thought to be an appropriate trait in children, mainly because of their reduced capacity for reasoning, but it has rarely been considered a virtue in adults. It is common to praise people for being just, honest or benevolent, but I have never heard of anyone being praised for being habitually obedient.

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This characteristic of obedience is why it is problematic to claim that it could be a virtuous character trait, in the military or in any other context. How can it be virtuous to refrain from making reflective moral judgements, since it is precisely such judgements that are necessary to assess the morality and legality of orders? But perhaps submitting to another’s judgement need not undermine moral judgement or be a failure of rationality. There are times when the most rational thing to do is to accept someone else’s judgement rather than one’s own. Sometimes we have to trust someone else’s judgement when we do not have the information or time to make the reflective judgement that we would make under ideal circumstances. We allow ourselves to be persuaded by another’s judgement in many aspects of our lives. When we trust someone, for example, we often accept their judgement as sufficient reason to act. Karen Jones has argued convincingly that sometimes we should trust someone else’s moral judgements about the morally relevant features of a situation. We should recognize, for example, that a person who has experienced sexism or racism is likely to be more aware of situations that are sexist or racist than someone who hasn’t had such experiences. Sometimes we should accept that we have not had the experiences that would enable us to recognize the moral issues.21 In such cases, it is rational, and evidence of moral maturity, for us to trust the judgements of those who have had relevant experiences. If moral trust – accepting another’s moral judgements in place of our own – is not irrational, then perhaps obedience is a kind of trust that leads us to accept another’s judgement as sufficient reason to act. In the military, good officers must be trustworthy – they must be able to command their subordinates’ loyalty and faith – because their subordinates’ lives are in their hands. Subordinates must also be able to trust each other absolutely. The consequences of loss of trust in the military can be momentous. Perhaps, then, obedience can be seen as a way of expressing complete trust in the order-giver; a recognition of their greater professional expertise and of their authority to make demands. If so, then we have solved the apparent contradiction between being obedient and exercising moral judgement. Obedience can be understood as a kind of wise trusting that involves no irrationality or undermining of moral agency. However, there are two problems with this account. First, trust and obedience are conceptually quite different. Obedience implies an unequal and non-reciprocal relationship between two parties: trust does not, although it does not exclude such a relationship. Obedience

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requires a hierarchical relationship of authority that need not have anything to do with trust. This is borne out by the Shorter Oxford English Dictionary definition of obedience: ‘submission to another’s rule or authority; compliance with a law, command etc.’.22 Trust can be reciprocal, but obedience is always one-way. Trust can occur between equals, obedience cannot. So while obedience may be based on trust, it is significantly different from trust. Even officers who do not have their subordinates’ trust may command their obedience. Second, wise trusting requires us to have access to information about the character and experiences of those whom we trust. My reasons for trusting another’s moral testimony are based on judgement and reflection. In the case of obedience, however, I might not have any information about the order-giver’s experiences or character. But I do not withhold my obedience until I have reflected on whether the order-giver is someone whose judgement I can trust. Instead, obedience requires a substitution of their judgement for my own, simply because they say so and they have authority over me. It implies an act of submission to their will rather than a reflective acceptance of their judgement. It is possible that trust forms one of my reasons for action (maybe I trust that the action ordered is necessary and that the justification is sound), but obedience requires that I acquiesce even if I do not have access to that information. I might not trust the ordergiver at all; I might be afraid of them or of the consequences of disobedience. So long as I judge that they have legitimate authority over me their order is a prima facie reason to act. Obedience implies a demand, not a request, suggestion or piece of advice. These, as David Owens explains, add reasons to an agent’s deliberations about whether or not to perform a certain action. An order, however, overrides the process of reason-weighing altogether. Owens points out that if, for example, I order my colleague to teach a course, my order indicates that I wish to take matters out of her hands. It is no longer up to her whether she should give the course, it is up to me. In requiring her to give the course, I am not attempting to address or influence her view of the merits of this action, I am not highlighting pros and cons for her consideration: rather I am taking control of what she does myself. I am seeking to substitute my practical judgement for hers.23 An order supersedes the agent’s own reasoning process about the desirability of the action in question. The order-giver has already made the

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decision and in giving an order is telling the subordinate that no reflection is required. The above discussion illustrates important differences between accepting someone’s moral judgement out of trust (in their character, expertise or for some other reason) and carrying out an order. The reasons for obeying an order may have nothing to do with trust. A soldier might obey her superior officers not just because she trusts them but because she recognizes that she is subject to their authority. Their authority includes the authority to judge what is the best course of action and to order her to act in accordance with that judgement in the expectation that she will obey, not because she agrees with the judgement or because she has reflected on the issue herself, but because it is an order. This difference between trust and obedience has important consequences for the discussion of obedience as a military virtue. If military obedience does not necessarily involve or require trust, and in fact overrides the moral reasoning process necessary for wise trusting, this means that we must be careful about claiming that obedience is a military virtue. We have not yet solved the apparent paradox of reflective obedience. Is there another way to understand military obedience so that it can be virtuous? Captain Christopher P. Yalanis describes obedience as a ‘moral bridge that allows the individual to move from a position of ignorance to one of moral certainty. It allows the subordinate to remain ignorant of the objectively correct decision, and to transfer varying degrees of his responsibility for making an autonomous moral decision to his superior.’24 There is therefore an important distinction between performing an order and obeying an order. One soldier might decide to obey an order after assessing the order’s justification and deciding that it is, upon reflection, the right thing to do. Another soldier might perform the action without knowing whether it is in fact the right thing to do, but simply because it was ordered. 25 The first soldier is not acting solely out of obedience because ‘the fact that the desired action is the right thing to do is justification itself to perform the act without its having been ordered at all’. 26 That the action was ordered might weigh as an additional (and very strong) reason for performing it, but she has reason to perform the desired act anyway. She performs the order rather than obeys it. Of course, Yalanis is not claiming that soldiers should decide and execute military strategy by themselves; he is pointing out that a soldier who performs orders does not obey without question. Her obedience is

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governed by reflective judgement about the wisdom of the orders she receives and about the value of obedience. On the other hand, the soldier who simply obeys an order suspends entirely his moral assessment of the order’s justification. For him the reason to act is simply that the action was ordered – this tells him that no moral assessment is required. Does the military want its personnel to obey or perform orders? Military rhetoric seems to require fighters who are capable of reflective moral reasoning and whose obedience (though a default stance) is tempered by sound moral character and integrity. Such individuals obey their officers for the same reasons they might trust their officers – because they know from experience that their officers are of good moral character and can reliably be expected to issue only legal and moral orders. These fighters govern their obedience and their trust wisely. The problem with this account is this: obedience by definition requires a suspension of moral judgement and it is moral judgement that would indicate when obedience is misplaced. It is still not clear whether wise obedience is a conceptual possibility. A trusting agent does not suspend her moral judgement when she decides to trust someone – it is through exercising her moral judgement that she can decide whether it is right to be trusting. When obeying an order, an obedient soldier suspends her moral judgement and so loses the main faculty by which she could tell whether obedience is in fact justified. In response, it might be said that military personnel have good reason to obey their superiors because they can trust that their officers will not give immoral or illegal orders. Military rhetoric tells us that the context in which military obedience occurs – the chain of command with increasing professional expertise, the importance of the laws of war, etc. – mean that subordinates can rely on their officers not to give illegal orders. Just as it is not a sign of faulty moral agency to trust another’s moral testimony, so it is not a sign of faulty moral agency to obey one’s superior officer. The fault with this response is straightforward. The prevalence of crimes of obedience in past and present wars suggests that military personnel cannot rest assured that they will only be given moral and legal orders, even accepting that their superior officers have greater knowledge of strategy and other professional matters. Appealing to the unique requirements of the military profession and officers’ professional expertise does not resolve the paradox of reflective obedience.

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Yet despite (and perhaps because of) the tension in the concept of reflective obedience, it is clear that for military obedience to be a virtue it must be a manifestation of rational choice: the result of rational deliberation.27 The virtuous fighter must have the reflective capacity and the practical rationality to know when obedience is justified and when it should be withheld. They must exercise significant judgment about what orders to give, how orders are to be carried out, and which orders should be carried out. If military personnel are professionals, then we can expect that they will have – or at least should have – expertise in the laws of war. To think otherwise is like expecting lawyers to have only a layman’s understanding of court protocol. This means that if the military is genuinely committed to training fighters who will obey the laws of war and uphold the military’s high professional standards, it must train them in reflective obedience. Yet despite the clear constraints on military obedience and the requirement that fighters understand those constraints, crimes of obedience still occur. If the military is genuinely committed to developing the reflective obedience it claims to value, then we must wonder why it fails so badly. To address this concern, we must know what kind of obedience military training actually encourages. While there are many different aspects to military training, the central part of all military training is simple: all military personnel, regardless of their other duties, must learn to kill.

Military training and moral judgement Creating obedient killers As S. L. A. Marshall said, war is essentially the business of killing.28 Military training must help military personnel develop character traits that will enable them to kill on command and to order others to kill, and that will minimize the psychological impact of killing. To do this, modern training techniques work by making killing a routine action, divorcing it from its moral context. These techniques, developed in response to findings that traditional training methods failed to overcome many fighters’ resistance to faceto-face killing,29 aim to overcome the psychological resistance to killing. While retaining the use of the traditional repetitive drills, these methods aim to recreate the experience of killing a real human being as closely as possible in order to make the act of killing a routine, conditioned response.

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Unlike the previous training methods that used bull’s eye targets and firing ranges, these methods worked by a combination of desensitization, dehumanization and behavioural conditioning.30 Desensitization and dehumanization: making killing routine The first step in desensitizing military personnel to the act of killing is to familiarize them with the idea of killing. Slang and chants make the idea of killing the enemy part of the everyday barrack room atmosphere and training environment. By referring to the enemy by derogatory names – ‘nips’, ‘krauts’ or ‘gooks’, for example – and by depicting them as morally, racially or physically inferior these slang and barrack room chants dehumanize and demonize the enemy.31 The success of such methods is clearly apparent in the attitudes of the American soldiers at Abu Ghraib, who referred to the prisoners they tortured as ‘animals’. Such dehumanization can rapidly come to seem normal. As Seymour Hersh explains: ‘The 372nd’s [the military police company] abuse of prisoners seemed almost routine – a fact of Army life that the soldiers felt no need to hide’.32 The desensitization to killing works by altering the way killing the enemy is perceived. The constant dehumanization, combined with an almost casual attitude towards killing, encourages fighters to view killing not as a morally serious act, but simply a more realistic form of target practice. One soldier described this process: I yelled ‘kill, kill’ ‘til I was hoarse. We yelled it as we engaged in bayonet and hand-to-hand combat drills. And then we sang about it as we marched. ‘I want to be an airborne ranger … I want to kill the Viet Cong’ … In 1969 I was drafted and very uncertain about the war. I had nothing against the Viet Cong. But by the end of basic training I was ready to kill them.33 This desensitization is reinforced by the use of human-shaped targets that the trainee ‘engages’ (a euphemism for ‘kills’) on a mock-up of an actual battlefield. Some training-grounds even use devices such as balloon-filled uniforms and fake blood to make the conditioning even more effective.34 Desensitization and dehumanization are combined with the operant conditioning techniques developed by B. F. Skinner in his experiments on rats. Operant conditioning works by combining constant repetition of the act of killing with the use of positive reinforcements to reward correct behaviour. Eventually fighters, like Skinner’s rats, learn to

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respond instantly to the appropriate stimulus – to fire upon the enemy when ordered to do so.35 The last stage of this training process involves the development of what Grossman calls ‘denial defence mechanisms’.36 These function to minimize both the psychological trauma of killing itself and the trauma of being trained to kill. The most effective defence mechanism is the nature of the training itself. The trainee practises the act of killing so often that the distinction between a practice kill on a manshaped target and a ‘real’ kill is diminished. As a result the first real kill does not seem ‘real’ at all, and therefore it is easier for a soldier to deny that he has killed a real person as opposed to simply ‘engaging’ another ‘target’. The effectiveness of this training can best be described in the words of soldiers themselves. One British soldier told a researcher that ‘he thought of the enemy as nothing more or less than Figure II [manshaped] targets’.37 Others described their experience as follows: Two shots. Bam-Bam. Just like we had been trained in ‘QuickShoot’. When I killed, I did it just like that. Just like I’d been trained. Without even thinking.38 ‘It’s so instantaneous,’ explained Master Sgt Danny Leonard … ‘You don’t even realise you did it.’39 The aim of this training is straightforward. The processes of desensitization, dehumanization, conditioning and denial defence mechanisms are intended to produce military personnel who will shoot to kill when ordered to do so, without hesitation and without doubt. But what kind of psychological dispositions does this training generate? The ‘bullet-proof mind’ David Grossman refers to the psychological state developed through this training as the ‘bullet-proof mind’.40 Fighters are trained to be able to withstand not only the physical hardship of warfare but also the psychological trauma of killing and being witness to killing. As a result, the ideal modern soldier is more lethal than ever.41 But as well as creating effective killers, this training develops a particular set of moral dispositions and a very specific attitude to the act of killing. This attitude is evident in the experiences of the soldiers who fought at the battle of Mogadishu,in 1993 (the focus of the book and later the film Black Hawk Down). In this battle, fought between a few hundred

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American troops and several thousand Somalis, both sides armed with similar weapons, there were only 18 American casualties compared to 300–1,000 Somali casualities42 – statistics that demonstrate the effectiveness of the training in creating efficient killers. The American soldiers’ attitude to killing is revealed in their remarks: [Ranger Sergeant Scott] Galentine just pointed his M16 at someone down the street, aimed at center mass, and squeezed off rounds. The man would drop. Just like target practice, only cooler.43 I just started picking them out as they were running across the intersection two blocks away, and it was weird because it was much easier than you would think. You hear all these stories about the first time you kill somebody is very hard. And it was so much like basic training, they were just targets out there, and I don’t know if it was the training that we had ingrained in us, but it seemed to me it was like a moving target range, and you could just hit the target and watch it fall and hit the target and watch it fall, and it wasn’t real – you would just see this target running across in your sight picture, you pull the trigger and the target would fall….44 For these soldiers killing is experienced as literally a thoughtless action. The phrases ‘it wasn’t real’, ‘it was so much like basic training, they were just targets out there’, ‘without even thinking’ and ‘just like target practice, only cooler’ demonstrate the effectiveness of these training techniques in making killing a conditioned, automatic response. The moral dimension of killing is conspicuously absent – these soldiers talk about killing the enemy as if it were an act divorced not just from a broader moral context, but from any moral context. Furthermore, these soldiers did not (at the time) see those they killed as human beings at all, but as ‘targets out there’. Such dehumanization of the enemy contributes to the sense that killing is not a moral issue at all. Reflection on the morality of killing, if it occurs, does so after the event. Captain Pete Kilner argues that modern combat training conditions soldiers to act reflexively to stimuli – such as fire commands, enemy contact, or the sudden appearance of a ‘target’ – and maximizes soldiers’ lethality, but it does so by bypassing their moral autonomy. Soldiers are conditioned to act without considering the moral repercussions of their

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actions; they are enabled to kill without making the conscious decision to do so.45 These training methods create efficient and highly effective fighters, but do so by disabling their capacity for moral judgement and reflection. The methods desensitize fighters not only to the physical aspect of killing, but also to its moral side. As a result, these methods undermine the very capacities that military personnel need if they are to embody the military ideal of obedience. Reflective obedience requires fighters who are not only well versed in the laws of war, but who also have the moral sensitivity and judgement to establish if their orders violate deeply held moral (and military) values. By undermining fighters’ sensitivity and judgement, these training methods not only make reflective obedience hard, they are fundamentally incompatible with it. Training fighters in unreflective obedience removes the very capacities they need to identify illegal and immoral orders and refuse to obey them. While in theory the military promotes reflective obedience, it is clear that in practice military training instils the dispositions of unreflective obedience. It is unreflective obedience that is likely to lead to crimes of obedience. Crimes of obedience occur not just when there is a failure to be disobedient – this could be indicative of individual weakness – but also when there are institutional processes that aim to reduce the capacity for moral reflection and moral sensitivity. But perhaps I am too swift in criticizing this training. Can we really expect to train military personnel to be effective killers and good moral agents?

Rhetoric versus reality If the existence of distinct political communities justifies the maintenance of military forces, then these forces need to be effective and this requires military personnel who are able to overcome their natural resistance to killing. The training methods I have described are very successful in achieving this. Perhaps, then, it is just an unfortunate fact that military personnel need to become detached not only from the emotional distress that can arise from the sights and sounds of war, but also from moral qualms they might feel about what they must do. Of course, this does not mean there is no reason to maintain military rhetoric about reflective obedience. Some military personnel take these ideals very seriously, in which case maintaining the ideals – even if

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they are unachievable – helps impose a degree of moral restraint and may help attract new recruits. But maybe this is the main role that military rhetoric should play. This response is tempting, if cynical. It allows us to accept that military ideals play an important if deceptive role, to accept that the dispositions generated through military training are necessary, and to allow that they are far from virtuous. However, this response is misguided. The claim that the military is justified in training military personnel in blind obedience because of the unique requirements of military action has three flaws. First, this claim is justified only if there is some guarantee that military personnel will not be given illegal and immoral orders. But, as we have seen, that is a guarantee that cannot be made. Crimes of obedience are too prevalent to assume blithely that the best way to ensure good military behaviour is to instil unreflective obedience. Second, to corrupt an individual’s capacity for moral reflection is one of the greatest harms you can do to them. As most writers in moral philosophy recognize, the capacity for rational reflection is what makes us characteristically human. It is what makes us moral beings; it is only through exercising our capacity for rational reflection that we can act virtuously. As Randolph Clarke puts it, ‘in order to be a morally responsible agent, one must be capable of appreciating and acting on moral reasons’.46 Our everyday conception of moral agency and responsibility similarly presupposes the ability to reflect on one’s reasons for action and to act on one’s judgement. According to Karen Jones, the normative conception of moral agency involves capacities to step back from any actional impulse and inquire whether the desire really reflects anything choiceworthy in the action … to be able to respond to reasons as reasons, an agent requires critical reflective ability, dispositions to bring that ability to bear when needed, and dispositions to have the results of such reflection bear on their behaviour.47 To undermine the capacity for rational reflection or to prevent the exercise of that capacity is a great moral wrong – it is to attempt to undermine the basis of the moral self. Third, this claim undermines the moral justification for the military’s existence. The military’s permission to kill, destroy towns and cities and send soldiers to their deaths is based on the need to protect national security and is constrained by the laws of war. Because mili-

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tary permissions involve extreme destruction and killing they must be properly grounded and justified, otherwise there is no moral difference between the military and mercenaries. If these constraints seem extremely limiting, that is as it should be. Military force is too destructive and dangerous to give those wielding it a sweeping licence regarding how and when it is used. If the military can succeed in carrying out its function only by undermining fighters’ capacities for moral reflection and judgement and encouraging the habits of blind obedience, then these permissions are no longer justified and the military can no longer claim the status of a morally justified profession. If the military is to have any kind of strong moral justification, then we must alter our views about the nature of the military profession and the training of military personnel. How might this be done? An in-depth discussion of alternative military training practices is beyond the scope of this chapter, but some initial suggestions can be made.

Conclusion: rethinking military training The first and most important step in thinking about alternatives to current military training is to challenge long-standing assumptions about the relationship between unreflective obedience and effective military functioning. The assumption that instilling unreflective obedience is essential for good military functioning does not stand up to close examination. For example, Norman Dixon found that rigid adherence to the chain of command and a refusal to question or disobey orders was a contributing factor in major instances of military incompetence in British history, such as the Siege of Kut in the First World War and the fall of Singapore in the Second World War. The moral, intellectual, strategic and personal failings of the military leaders of these tragedies were compounded by the ‘terrible crippling obedience’.48 A study on dysfunctional decision-making in the US military found that a culture that encouraged rigid thinking and adherence to ‘groupthink’ mentality contributed to erroneous decision-making and to moral exclusion – the failure to consider moral principles that were directly relevant to the situation in question.49 The study found that the ‘suppression of critical thoughts as a result of internalization of group norms’50 negatively affected officers’ behaviour, resulting in the refusal to re-evaluate decisions in light of new information and to increased recommendations

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for aggressive responses to the hypothetical crisis.51 An even more disturbing finding was the officers’ (including senior officers’) lack of any awareness of the moral issues involved in the decision-making process: ‘not one of the sixteen 0-6’s [colonels/Navy captains – those of the highest rank tested] in the present study reported any moral or ethical considerations during their deliberations’.52 These studies indicate that far from promoting an efficient and effective military, promoting unreflective obedience can hamper creative military thinking. This is of particular concern in light of the military’s increasing involvement in operations other than war, such as peacekeeping. Once we rethink what character traits are necessary for good military functioning, we are in a position to consider alternative training practices that combine technical skills and psychological readiness for combat with a deep understanding of military law and ethical conduct. Mark Osiel suggests that this might be instituting a culture of ‘creative compliance’,53 in which soldiers are encouraged to reflect on the legality of their orders and, if in doubt, to carry out the legal interpretation of the order. This would need to take place at the level of military law and also during training and during combat. There must be clear support for justified disobedience manifested not only in the classroom but in basic training, elite training and during combat. There must be cohesion between the rhetoric taught in ethics classes and the obedience expected in the field and in basic training. Giving soldiers the information they need (and must have if they are to be professionals) regarding their duty to disobey, combined with a concerted effort to reward disobedience when it is justified, would go at least some way to mitigate the effects of military training and military culture. If the military is genuinely committed to upholding the moral values that it claims to be guided by, then it must radically rethink long-held assumptions about military obedience and what counts as military effectiveness, and it must begin the process of seeking alternatives to current training methods.

Acknowledgements This is a revised version of a paper first presented at the workshop on ‘Politics and Morality’, held in August 2004 at the Centre for Applied Philosophy and Public Ethics, University of Melbourne.

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Notes 1 For some examples, see the website of the Royal Military College Duntroon http://www.army.gov.au/rmc/, and the Australian Defence Force Academy http://www.defence.gov.au/adfa/. Most books on military ethics also refer to it as a profession. 2 Australian Defence Force, at http://www.defence.gov.au/army/rmc/ first_class.htm. Italics mine [accessed 14 February 2004]. 3 Australian Defence Force, at http://www.defence.gov.au/army/rmc/ first_class.htm. 4 It is accepted in a certain limited number of situations. In the Australian Defence Force Discipline Act 1982, for example, ‘the “defence of superior orders” is available where: 1. the act or omission was in execution of the law; or 2. was in obedience to a) a lawful order; or b) an unlawful order that the person did not know, and could not reasonably be expected to have known, was unlawful’ (Rhonda M. Wheate, Rhonda M. and Lieutenant Nial J. Wheate, ‘Lawful Dissent and the Modern Australian Defence Force’, Australian Defence Force Journal 160 (2003), p. 20). 5 There are other cases in which disobedience may be justified, such as when the order-giver is exceeding their authority, when the order would require the subordinate to violate internal regulations or when the order is a general or standing order (for example, ‘the town X is out of bounds until further orders’) (Nico Keijzer, Military Obedience, Alphen aan den Rijn: Sijthoff and Noordhoff, 1978, p. 86). For the purposes of this chapter, I am limiting the scope of my discussion to the question of obedience to illegal orders. 6 The sociologist Herbert Kelman defines a crime of obedience (for example, torture) as ‘a crime that takes place not in opposition to the authorities, but under explicit instructions from the authorities to engage in an act of torture, or in an environment in which such acts are implicitly sponsored, expected, or at least tolerated by the authorities’ (Herbert C. Kelman, ‘The Social Context of Torture: Policy Process and Authority Structure’, in The Politics of Pain: Torturers and Their Masters, ed. Ronald D. Crelinsten and Alex P. Schmid, Boulder,CO: Westview Press, 1993, p. 21). 7 Seymour Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib, Melbourne: Allen Lane, 2004, pp. 28–30. 8 Joanna Bourke, An Intimate History of Killing: Face-to-Face Killing in Twentieth Century Warfare, London: Granta Books, 1999, pp. 178–80. 9 This approach is particularly appropriate for the military profession for three reasons. First, Aristotelian virtue ethics captures many common intuitions about the importance of a professional’s good moral character. This is consistent with the military’s emphasis on soldiers’ good moral character. Second, Aristotelian virtue ethics places central importance on the exercise of reflective moral agency, which is particularly important given the importance of military action. Lastly, it ties virtuous behaviour to the concept of good functioning in particular roles, where those roles are themselves justified by their link to the service of important human goods. A full defence of the virtue ethics approach to professional roles is beyond the scope of this chapter, but it is worth noting that the conclusions I draw in

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10

11 12

13 14 15 16

17 18

19 20

21 22 23 24

25 26 27

28

relation to the connection between virtuous action and the exercise of reflective moral agency would also be consistent with a Kantian or consequentialist approach to professional ethics. For an in-depth discussion, see Justin Oakley and Dean Cocking, Virtue Ethics and Professional Roles, Cambridge: Cambridge University Press, 2001. Samuel Huntington, The Soldier and the State, Cambridge, MA: Harvard University Press, 1957, p. 73, quoted in Anthony E. Hartle, Moral Issues in Military Decision Making, Lawrence, KS: University Press of Kansas, 1989, p. 29. Hartle, Moral Issues in Military Decision Making, p. 47. This term is often translated as ‘happiness’, but it means more than simple pleasure. It does not refer to a simple emotional state, but a state of satisfaction or fulfilment (David Ross, ‘Introduction’ to Aristotle, The Nicomachean Ethics, Oxford: Oxford University Press, 1998, p. xxvii). Oakley and Cocking, Virtue Ethics and Professional Roles, p.15. The Nicomachean Ethics, I.7.1097b25–1098a15. Rosalind Hursthouse, On Virtue Ethics, Oxford: Oxford University Press, 1999, p.103. Richard Sorabji, ‘Aristotle on the Role of Intellect in Virtue’, in Amelie Oksenberg Rorty (ed.), Essays in Aristotle’s Ethics, London: University of California Press, 1980, p. 205. Aristotle, The Nicomachean Ethics, VI.5.1140a20-b6. Christine Korsgaard, ‘From Duty and for the Sake of the Noble: Kant and Aristotle on Morally Good Action’, in Stephen Engstrom and Jennifer Whiting (eds.), Aristotle, Kant, and the Stoics: Rethinking Happiness and Duty, New York: Cambridge University Press, 1996, p. 215. The Nicomachean Ethics, III.2.1111b1-22. In Book I of The Politics Aristotle writes: ‘the slave has not got the deliberative part [of the soul] at all, and the female has it, but without full authority’ (The Politics, I.v.6). Karen Jones, ‘Second-hand Moral Knowledge’, The Journal of Philosophy 96 (1999), pp. 65–6. The Shorter Oxford English Dictionary, Oxford: Clarendon Press, 1993. David Owens, ‘The Authority of Practical Judgement’, unpublished paper, 2003, p. 14. Captain Christopher P. Yalanis, ‘The Virtue (?) of Obedience’, paper presented at the Joint Services Conference on Professional Ethics, Springfield, Virginia, 2001. www.usafa.af.mil/jscope/JSCOPE01/Yalanis01.html. Yalanis, ‘The Virtue (?) of Obedience’, p. 4. Yalanis, ‘The Virtue (?) of Obedience’, p. 3. The same criteria would also hold for the other military virtues such as loyalty. Virtuous loyalty in the military, like obedience, must be a product of rational deliberation about the ends of the military profession and the role that loyalty might play in promoting those ends. S. L. A. Marshall, quoted in Lt. Col. David Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society, Boston: Little, Brown, 1995, p. 250.

246 Jessica Wolfendale 29 This fact was established in a study conducted by S. L. A. Marshall in the Second World War, as well as in studies by Gwynne Dyer and Ben Shalit. See Grossman, On Killing, pp. 29–36. 30 Grossman, On Killing, p. 25. 31 Grossman, On Killing, p. 161. 32 Hersh, Chain of Command, p. 24. 33 Grossman, On Killing, p. 306. 34 Grossman, On Killing, p. 254. 35 Grossman, On Killing, pp. 253–4 36 Grossman, On Killing, pp. 255–6. 37 Grossman, On Killing, p. 256. 38 Grossman, On Killing, p. 257. 39 Peter Maas, ‘A Bulletproof Mind’, The New York Times Magazine, 10 November 2002, p. 54. 40 Maas, ‘A Bulletproof Mind’, p. 52. 41 Maas, ‘A Bulletproof Mind’, pp. 52–4. 42 Captain Pete Kilner, ‘Military Leaders’ Obligation to Justify Killing in Warfare’, presented to The Joint Services Conference on Professional Ethics, Washington, DC, 27–28 January 2000. http://www.usafa.af.mil/jscope/ JSCOPE00/Kilner00.html [accessed 9 March 2005]. 43 Mark Bowden, Black Hawk Down: A Story of Modern War, New York: Atlantic Monthly Press, 1999, p. 64, quoted in Kilner, ‘Military Leaders’ Obligation to Justify Killing in Warfare’. 44 Interview with Ranger Private First Class Jason Moore for CNN/Frontline. http/www.pbs.org/wgbh/pages/frontline/shows/ambush/rangers/moore.ht ml, quoted in Kilner, ‘Military Leaders’ Obligation to Justify Killing in Warfare’, p. 1 45 Kilner, ‘Military Leaders’ Obligation to Justify Killing in Warfare’, p. 1. 46 Randolph Clarke, ‘Free Will and the Conditions of Moral Responsibility’, Philosophical Studies 66 (1992), p. 55. 47 Karen Jones, ‘Emotion, Weakness of Will, and Normative Conception of Agency’, in Anthony Hatzimoysis (ed.), Philosophy and the Emotions, Royal Institute of Philosophy Supplement 52, Cambridge: Cambridge University Press, 2003, p. 190. 48 Norman Dixon, On the Psychology of Military Incompetence, London: Jonathan Cape, 1976, p. 82. 49 Jeffery Bordin, ‘On the Psychology of Moral Cognition and Resistance to Authoritative and Groupthink Demands during a Military Intelligence Analysis Gaming Exercise’, paper presented at the Joint Services Conference on Professional Ethics, Springfield, Virginia, 24–25 January 2002. http://www.usafa.af.mil/jscope/JSCOPE02/Bordin02.html. 50 Bordin, ‘On the Psychology of Moral Cognition and Resistance’, p. 3. 51 Bordin, ‘On the Psychology of Moral Cognition and Resistance’, p. 26. 52 Bordin, ‘On the Psychology of Moral Cognition and Resistance’, p. 28. 53 Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline and the Law of War, New Jersey: Transaction Publishers, 2002, p. 315.

Index absolutism Christian 25, 33 compared with weak consequentialism 25–7, 32 absolutist moral values 8–9, 15, 23 Abu Ghraib prison, use of torture in xxx, 212, 229, 237 accountability political 203, 204–5, 206 torture warrants 220 Acheson, Dean 114, 124–5 act utilitarianism 193 action choices and costs 7 joint 157–8, 160–1 resolute 23–4 wrong 65 see also collective action; corrupt actions; political action Aeschylus 18n Agamemnon 18n agent-regret 7, 9, 17–18n agents responsibility for 52n, 200 see also dirty hands agents allegiances, personal 69–70, 143, 245n altruism, and patriotism 148, 149–50 Antigone 11 Arendt, Hannah 194, 202, 203 Aristotelian virtue ethics 229, 230–1, 244–5n Aristotle 80 theory of virtues 116, 117 Aron, Raymond 116 Augustine of Hippo 191 Augustine, St 114, 146 Australia, immigration policy 170–1, 183–4, 185, 188n, 203–4 Australian Defence Force 228, 244n Beccaria, Cesare

belief, and corrupt action 94, 101 Bentham, Jeremy 195 Berlin, Isaiah 128 Berlusconi, Silvio 105 blame avoidability of 52n for being corrupted 111n for corrupt actions 94, 97 and punishment 38, 41, 42–3, 44–5 body, changing views of 209–10 Bok, Sissela 204, 206 border protection Australia 170–1, 183–4, 185, 188n ethics of 171 and ethics of proximity 184–5 moral cost of 177–81 borders as arbitary 177–8 conflict of rights 181 historical contingency of 178, 180 and moral claims of refugees 182–3 normative force of 178 political xxvii, 173–7 Brecht, Bertholt, The Measures Taken 5 bribery corrupting effect of 95 refusal 109 and sting operation 102 Burke, Edmund 114 Bush, George W., US President 138, 222 Callicott, J. Baird 214–15 Calvin, John 114 Camus, Albert 17n capital, movement of 181 Carr, E.H. 114, 115 Catholicism response to dirty hands 17n view of lying 192

210 247

248 Index chauvinism 148 China 103 choice and actions and costs 7 in Aristotelian virtue ethics 231 between evils xviii, 12 and coercion 110n Christianity loss of influence 117 and moral universalism 146 view of lying 192 Churchill, Winston 46–7 circumstance, realist appreciation of 120, 121 citizens 86, 90–1n acquisition of moral responsibility 164 alienation from government 147, 189 and collective responsibility 154 commitment to friends and colleagues 162–3 commitment to nation 161 complicity in state injustices 157–9 of dictatorships 154, 161 free riders 168, 176 moral duties of 155, 157, 173 passive 154, 158–9, 162 perceived lack of influence 153–4 political participation xxvi, 147, 161, 164–6, 179 and problem of many hands 154–7, 162 relations with ruler 86, 195–6 and responsibility for dirty hands of politicians 48–50 uncommitted 167–8 citizenship 172, 179 and nationality 179 civil society 203 Clarke, Randolph 241 Clinton, Bill, US President 200 coercion and choice 110n immoral 15–16 moralism of imposition 123 and persuasion 198 state use of 84–5

to corrupt action 94 collective action 154, 156–7 and Individual Difference Principle 157 collective responsibility xxvi–xxvii, 47–50, 154 for injustice 166–8 and problem of many hands 154–7, 162 Colombia dirty hands actions 109–10 pursuit and death of Pablo Escobar 107–9 commitment 160–6 and joint action 160–1, 165–6 and responsibility 161–6 Condren, Conal 201 consequences, opaque 23 consequentialism, weak 22, 25–7 consequentialist calculations in dirty hands situations 78 in moral conflicts 12–14, 15 and participation 156 in public life 9–10, 195–6 responsibility for injustice 166–8 and rights violations 39 and torture 210, 224n Constant, Benjamin 191 context and moral conflict 34–5, 37n of political action 205 contra-moral justification 65–6, 69 contractualism 75 corrosion, institutional 94, 110–11n corrupt actions corrupting effect of 93, 95 effect on actor 95 habitual 98–9 and intention 94, 101 as morally wrong 100 motive for 100–1 presuppositions 96 corruption 92–110 definitions of 99–100 human rights violations not 93 institutional 93–4, 102 as legal wrong 92 moral connotation 99

Index 249 as moral wrong 92 noble cause xxiii–xxiv, 92–110 personal xxiii, 86, 104 potential for 82–3 process of 96–7 cosmopolitanism 177 Costa Rica, non-military patriotism 150 costs calculation of 12–13 choices and actions 7 moral 15 crimes of obedience 228, 235, 241, 244n cruelty 214, 223n as assault on the defenceless 215–16 cultural relativism, simple 122–3 cultures diversity within 123 within state borders 175–6 deception deliberate xxviii–xxix, 190–1 use of 194, 201 democracy 206 and collective responsibility 48–50 commitment to 163–6 costs of 168 delegated decision-making 195–6 institutional means to prevent injustices 159 institutions of 203 parliamentary codes of ethics 196 participation and commitment 164 and popular election 87, 90–1n, 153 voting as a duty 155, 168 see also citizens deontological moral theory 10, 25, 31, 193 and rights violations 39–40 Dershowitz, Alan 220–1, 222 desires, incompatible 8 dirty hands agents autonomy of 44

blameworthiness 44–5, 49 complexity of attitudes to 43–4, 46, 49 dishonouring of 46–7 punishment of 38–50 soul of 51n ‘dirty hands’ dilemma xv–xvi, 20–35 compared with noble cause corruption 105–7 conceptual confusion 6–8, 22–3 dirty features of 11–16 erroneous criteria 8–11 examples 13–15 and immoral means to moral end xxii–xxiii, 3 justification 35 and moral conflict 9, 13–14 and moralism of scope 119 in private sphere 13, 14, 15 in public sphere 13, 14, 15, 185–6 as unreal 28 within politics xxvii–xxviii, 170 dirty hands situation (DHS) 76–9 conditions defining 76–7 responses to 77 and responsibility 88, 119 dishonouring of dirty hands agents 46–7 as inappropriate 47 and restoration of rights 47 division of labour 79 ‘double-counted impossible oughts’ 6–7, 16 double-effect, doctrine of 45 elections 87, 90–1n, 153, 189–90 Enlightenment, The, view of torture 209–10 Erasmus of Rotterdam xii, xv Escobar, Pablo, pursuit and death of 107–9 ethical universalism 145–7 ethics Aristotelian virtue 229, 230–1, 244–5n of conviction xiv, xviii professional xxii, 56, 76–89 of responsibility xiv

250 Index ethics of proximity 183–5 eudaimonia (human flourishing) 230, 245n evil, forced cooperation with 12 evil human agency 12, 15 evils, choice between xviii, 12, 13, 20 exclusion from free associations 176–7 justification for 179 and moral claims of refugees 182–3 role of state borders xxvii–xxviii, 170–1, 174 experience, guilty knowledge in politics 5–6 family loyalty, and patriotism 143 fanaticism 116 fields of reason moral and personal as separate 58–9 moral and political as separate 59–60 First World War, Siege of Kut 242 flags, as focus of patriotism 137, 138, 151n foreign policy and impossible demands of morality 119–20 and patriotism 142 foreign relations and dangers of moralism 127–8 realism in 114–15 freedom of association 176 and exclusion 180 and nature of association 176–7 Gandhi, Mahatma 139 Geneva Conventions 228 Gilbert, Margaret, on commitment 160–2, 164, 166 Gomberg, Paul and moral universalism 145–6 ‘Patriotism is Like Racism’ 144–5 good faith in moral considerations 12 untruths told in 191 Gordon, Aaron, Zionist 139 Gowers, Sir Ernest 199

Greek tragedy 18n Gross, Oren 222 Grossman, David 238 Guantánamo Bay, interrogation techniques 211 guilt xviii–xix feeling of 21, 29–30 public justification of 31 and regret 30 Hare, R.M. 203 Harris, Sir Arthur (‘Bomber’) 45, 46 Hartle, Colonel Anthony 230 Herder, Johann Gottfried von 146 heroism military 149–50 non-military 150, 151–2n Hiroshima and Nagasaki, atomic bombing as immoral acts 14 Hitler, Adolf 202 Hobbes, Thomas 114, 143 Hoffman, Stanley, realism 113, 114, 120 Hollis, Martin 57 Hong Kong 103 Horace, Ars Poetica 148 human rights security as 51n violations not corruption 93 hypocrisy 118 idealism and fanaticism 116 in foreign affairs 115 and realism 114 reliance on 127–8 ideals defence of 72 military 240–2 ideology and ‘coalition of the willing’ (Iraq 2003) 197–8 and coercion 198 and use of rhetoric 202 Ignatieff, Michael 51n ignorance, excusable 45 immigration controls 180, 185–6 see also border protection

Index 251 immoral actions 14–15 criteria 11–12 immoral coercion 15–16 impartiality, principles of 57 imposition and coercion 123 moralism of 121–4 inaction 23 Individual Difference Principle 157–9 inflexibility, of moral absolutism 126–7 information, access to 206–7 injustice citizens’ responsibility for 166–8 complicity in 157–9 maintained by borders 181 institutional corrosion 94 institutional corruption 93–4, 102 institutions as constraints on politicians 87, 88–9, 196 as constraints on professionals 83 corporate corruption 97–8 as democratic tools 159 legally legitimate 99 morally legitimate 96, 99 negative moral effects on 98 state 85 interests competing 57–8, 104, 196 public 196 see also national interest international policy, and impossible demands of morality 119–20 international violence, and patriotism 137–8, 150 Iran, patriotism in 138 Iran-Contra affair 194 Iraq, war in (2003) 197–8, 226n Israel High Court ruling on torture 220, 222 Landau Commission 220, 227n use of torture 209, 217 James, William, ‘The Moral Equivalent of War’ 149–50

Jesuits, doctrine of ‘mental reservation’ 192 Johnson, Lyndon B., US President 149 Johnson, Samuel 136 joint action and commitment 160–1 and complicity 157–8 journalists, and use of language 201 judgements considered 20 personal and moral 58–9 practical 120 see also moral judgements judicial process corruption of 96 and issuance of warrants 221–2 justice, Rawlsian concept of 22 justification 12, 31, 35 for breaking moral rules 61 consequentialist 41–2 contra-moral 65–6, 69 in noble cause corruption 101–2 political, for morally wrong action 64–5 private 65 see also moral justification justified betrayal 12–15 justified disobedience 243, 244n

Kant, Immanuel xi–xii, xv, 191 Kennan, George 73n, 114, 127 Kennedy, John F., US President, Peace Corps 149 Kierkegaard, Søren 33 killing desensitization to 237–40 psychological resistance to 236–7 Kilner, Captain Pete 239–40 Kissinger, Henry 114 Kohn, Hans 146–7 Kolakowski, Leszek 23 Kutz, Christopher, Individual Difference Principle 157–9 Kymlicka, Will, Liberalism, Community and Culture 175

252 Index language euphemism 199 ideological (vague) 196, 197–9 jargon 199 and rhetoric 200–4 and self-deception 200 style of politicians’ 190 use and misuse of 196, 198–9 Lenin, V.I. 202 lesser evil choice of 20 and moral conservatism 23 not wrong 22 liberalism, and non-interference 122 lies and lying accusations of 201–2, 205 assumption of in politics 190 as broken promises xxviii, 199–200, 205 as commonplace 193 as deception xxviii, 190–1 and decline in trust 204 as deliberate untruth 190 as distortion of facts 197 and doctrine of ‘mental reservation’ 192 ideological xxviii, 190, 197–8 as intention to mislead 190, 203–4 moral prohibition of 61 ‘noble lie’ 195 permissible in politics xii–xiii, 204, 205–6 and secrecy 191, 205 social role of 193–4 see also language ‘lifeboat ethics’ 19n loyalty 245n Machiavelli, Niccolò xii–xiii, xix, 17n, 105, 114 The Discourses 85 ends and means 192 inappropriate virtues for prince 118, 124 The Prince 76, 84, 85 and realism xxiv, 54–5 unscrupulousness of politicians 54, 57, 73n use of deception 194, 201

MacIntyre, Alasdair, ‘Is Patriotism a Virtue?’ xxv, 140–2 McMahan, Jeff, on patriotism 143–4 Madison, John 114 Manne, Robert and Corlett, David 183–4 ‘many hands’, problem of 154–7, 162 Marshall, S.L.A. 236 May, Larry 154–5 mental suffering 211 military forces dysfunctional decision-making 242–3 moral justification for 228, 241–2 moral motives of soldiers 149 military law 228 military obedience xxx and crimes of obedience 228, 235, 241, 244n and instances of incompetence 242 limits of 230–6 see also obedience; orders military personnel commission of atrocities 229, 235 standards expected of 149, 228, 236 military training xxx, 229 ‘bullet-proof mind’ 238–40 conditioning 237–8 creating obedient killers 236–7 desensitization 237–8 and military ideals 240–2 and moral judgement 236–40 Mogadishu, battle of (1993) 238–9 Montaigne, Michel 193, 223n moral absolutism 8–9, 15, 23, 116, 126–7 moral agency 23, 158 and military training 241 reflective 230, 239 moral character corruption of 96 pattern of actions 98 moral conflict 8–9 compared with dirty hands 11–12, 14

Index 253 and consequentialist calculations 9–10 context in 34–5, 37n moral costs 15 moral crimes xviii, 29 moral dilemmas xv–xvi, 8, 14 definitions 17n, 60 and moral residue argument 66–7 private xvii see also ‘dirty hands’ dilemma moral judgements 12, 123–4 certainty of 122 equal to personal reasons 59, 62–3 falling short of overall reasons 59, 60, 62, 63 legitimacy of 121 made in good faith 12 and military training 236–40 obedience as suspension of 231–6 as overriding 59, 61 as politically necessary 60 role of 117 as separate from personal reasons 59, 61–2 as separate from political reasons 59–60 moral justification 27, 61, 62–4 lack of 63–4 for military forces 228, 241–2 noble cause corruption 101–2 moral reality 4, 16 moral relativism 122, 131n moral residue 38, 66, 67 moral rules annulled 67 can be overridden 33–4, 67 evaluation of 7 justifiably broken 61 prima facie 32 as social prohibitions 34, 61 universal xiv, xv, xxvii, 173 utilitarian 41, 61 moral standards 96 moral theory, and moral reality 16 moral values absolute 8–9, 15, 23 in foreign affairs 115

private and public conflict 9–10 moralism xxiv–xxv, 117–29 absolutist 126–7 of abstraction 124–6 dangers of 128–9 of deluded power 127–8 of imposition or interference 121–4 of scope 118–21 varieties of 117–18 morality xx–xxi, 3 boundaries of 118 in foreign affairs 114, 115 and moralism xxiv, 116, 130n and national interest 119, 129, 141–2 realist critique of 113–16 universal 173 morality-when-it-is-justified 62, 63 moralizers, moral superiority of 117–18 Morgenthau, Hans 114 multiculturalism 122, 175–6, 179 Mussolini, Benito, and relativism 122, 131n Nagel, Thomas 27–8, 57, 74n Nathanson, Stephen, ‘In Defense of Moderate Patriotism’ xxv, 142–3 nation, moral status of 187n national anthems 137 national interest and morality 119, 129, 141–2 politicians and 206 scope of 121, 130n national security, invoked to justify torture 227n nationalism and imagined communities 175 and patriotism 144, 146 nationality, and citizenship 179 nationhood commitment of citizens to 161 definitions 142 Navarrus, theologian 192 negligence, culpable 97 neoclassicism, response to dirty hands 17n

254 Index Niebuhr, Reinhold 114 Nixon, Richard, US President 193–4 noble cause corruption xxiii–xxiv, 92–110 morally justified 101–2 in politics 103–7 non-corrupt actions 95 North, Colonel Oliver 194 Northern Ireland, use of torture 209, 217 Nye, Joseph 104 obedience and justified disobedience 243, 244n military xxx and performance of orders 234–5 reflective 229, 240 as submissive 233 as suspension of moral judgements 231–6 and trust 232–4 unreflective 241–2, 243 as virtue 231 see also crimes of obedience; military obedience, orders occupational ethics 79 occupational roles 79–80 Oedipus 18n offices duties and obligations 9–10 political 85–6 and roles 81–2, 86, 88 opinion, in political debate 202–3 opinion polls, on honesty of politicians 189–90 opponents, reasonable objections 70, 72 orders illegal or immoral 228 obedience to 228, 235 performance of 234–5 Orwell, George 197, 198 Otsuka, Michael 52n Owens, David 233 pain intentional infliction of 214–15, 225n

213,

mental suffering 211, 225n physical 211 severe 212 participation and commitment 160–6 in joint action 157–8 political xxvi, 147, 161, 179 and responsibility 156 patriot, use of term 136–7 patriotism xxv–xxvi and altruism 148, 149–50 American 147–8 antipathy to 139 and bellicosity 145 as cause of war 140 devaluation of term 136–7 and ethical universalism 145–7 instinctive 147 and international violence 137–8 moderate, blameless 142–5 moral status of 139–40 as reactionary 147 reflective (rational) 147, 148, 150 as virtue 140–2 personal corruption xxiii, 86, 104 personal justification xxi, 65 and morally unjustified actions 63–4 personal reasons, as separate from moral 58–9 personal well-being xx–xxi and general good 121 and moral reasons 55, 63 see also fields of reason philosophers, use of language 203 phronesis (practical wisdom) 230–1 Plato 202 notion of body 210 Republic xii, 194–5 pluralism 128 police, and noble cause corruption 102 politeness, as diplomatic lie 193 political action 54–5 contextual 205 and moral challenges 55 and reasons of allegiance 69–71 political community 172, 187n

Index 255 political debate 167 opinion in 202–3 political leaders and fear of punishment 41–2 moral challenges for xii, 56 permitted to lie xii–xiii, 204, 205–6 relations with citizens 86, 195–6 responsibility for actions of agents 52n political lies xii, 193–4 political necessity 54, 60 political parties 87 political realism 54, 206 politicians acceptance of responsibility xiv–xv, 50, 88 conflict with personal roles 55 consequences of actions 57 discretionary powers 87–8 expertise 86–7 improper extension of role of 105 motivations of 50n, 87 option of resignation 17n, 24 perceived dishonesty 189–90 professional ethics xxii, 56, 76–89 relations with electorate 147–8, 189–90 representative capacity of 56, 71 role morality 78, 83, 89 unavoidability of dirty hands 47, 49, 52–3n as unscrupulous 57–8 see also political leaders politics xxvii, 206 accountability 203, 204–5, 206 application of morality to xi–xii, xiii–xiv, xxvii, 194 compromise between competing interests 57–8 conflicts of interest 104, 196 consequentialism of 195–6, 205 defined as political community 172 ends and means of 83–4 mass 196 moral complexity of 57–8 noble cause corruption in 103–7 and private gain 104, 105

ritualization of 202 role conflicts within 55 and role morality 125, 126 see also political leaders; politicians poverty, and corruption 93 power of princes xii–xiii, 84–5, 86 role of 119–20, 121 practical arts 80 practical judgement 120 press freedom 203 Primoratz, Igor, on ethics of lying 192–3 princes power of xii–xiii, 84–5, 86 virtue in xii–xiii, 76 private gain, and institutional corruption 104, 105 productive arts 80 professional ethics xxii, 76–89 professionals collective organization 81–3 identified by office 81–2 occupational role 79, 81–2 potential for corruption 82–3 practical skills 80–1 provision of goods 79–80 promises, broken 67–8, 189 justified 67 lies as xxviii, 199–200, 205 Protestantism and ethical universalism 146 response to dirty hands 17n prudence, morality and 120–1 punishment 40–5 and blame 38, 41, 42–3, 44–5 deserved 43, 44 and ‘dirty hands’ dilemma xix–xx, 38–40 fear of 42 as immoral 44 retributive 43, 44, 46 Quiggin, John

50n

racism, and patriotism 144 rape, analogous to torture 226n rationality, and universalism 123 Rawls, John 22

256 Index Reagan, Ronald, US President 194 realism xxiv, 113–14 compared with religion 113–14 critique of morality 113–16 and idealism 114, 115 political 54, 206 realpolitik 5–6 and use of torture 210, 220 reflective moral agency 230, 239 refugees 170 and ethics of proximity 183–5 moral demands of 172, 181–3 regret 20–1 and remorse xxii, 15, 17n, 92 see also agent-regret resignation, option of 17n, 24 respect, morally required 70 responsibility xiv–xv, 21, 38 avoidance of 47 causal 41 and commitment 161–6 as complicity 157–9 first-person ascriptions of 40, 49 for injustice 166–8 and roles 88 widely distributed 38, 47–50 see also blame; collective responsibility rhetoric 200–4, 206 rights and border controls 181 restoration of 47 violation of as lesser evil 24–5, 39–40, 71–2 see also human rights role morality 78, 83, 89, 125–6 roles and offices 81–2, 86, 88 and responsibility 88 Roosevelt, F.D., US President 151n Rosenthal, J.H., Righteous Realists 114 Rousseau, Jean-Jacques 146 rule-utilitarianism 41, 61

Sartre, Jean-Paul, Dirty Hands (play) xv–xvi, 4–5, 21 Scanlon, T.M. 73n, 75n

Schlesinger, Arthur and moral absolutism 126 ‘The Necessary Amorality of Foreign Affairs’ 115 ‘scrupulosity’ 119 Second World War 148, 242 RAF Bomber Command 46–7 US internment of JapaneseAmericans 135, 151n, 222 secrecy 191, 205 distinct from lying 191 torture and 220 security, as human right 51n self-deception 200 self-defence, as justification for killing 218 self-righteousness, of moralism 127–8 September 11, 2001 terrorist attacks 138 and reconsideration of torture xxix–xxx, 209, 227n Shils, Edward 201–2 Shklar, Judith 193, 202 Shue, Henry 215 simple cultural relativism (SCR) 122–3 skills 80–1 required of politicians 86–7 Skinner, B.F. 237 Socrates, and ‘noble lie’ 195 Sophocles, Antigone 11 Sorabji, Richard 230–1 Soviet Union 103, 197 state assumption of moral legitimacy 103 consequentialist justification 89 as corporate entity 84 as ethical xi–xii, 73n as geographical region 84 institutions 85–6 as morally justified 27, 71–2 and need for military forces 228, 241–2 and non-interference 122 official sanction of torture 212–13 use of coercive force 84–5

Index 257 state borders alternative to 177 and dirty hands problem 185–6 and exclusion xxvii–xxviii, 170–1, 174, 181–2 and freedom of association 176 and maintenance of injustices 181 movement between polities 177 necessity of 173–7 and political goods 175 to defend cultures 175–6 Stocker, Michael criteria for dirty hands scenarios 11–12 ‘double-counted impossible oughts’ 6–7 Stoicism, moral universalism 146 Strauss, Marcy 211–12 Styron, William, Sophie’s Choice xvii surveillance warrants 221 Sussman, David 216 telos of human life 230 terrorism, and use of torture 10, 209 Thompson, Dennis 104 Thompson, Kenneth W. 130 Thucydides 114 Tocqueville, Alexis de, on patriotisms 147, 148 tolerance, and cultural relativism 122–3 Tolstoy, Leo xxv antipathy to patriotism 139–40, 142–3 torture aims of 213 changing view of 209–10 definitions 210–14 and ‘dirty hands’ dilemma xvi–xvii, xviii, xxix–xxx effect on society 216 effect on torturer 216 and extraordinary rendition 222 as failure of regard 216 false intelligence 220, 226n fear of 227n and harsh treatment 219

instrumental 209 interrogatory 216–17, 219, 226n and invocation of national security 227n and medical ethics 227n moral case against 214–17 physical pain 211 possible justification of 217–19 punitive 209 responsibility of agents 220 ‘safe’ (‘torture-lite’) 212 severe (permanent physical damage) 212, 221 symbolic resonance of 215 ‘ticking bomb’ scenario 210, 213, 217–18, 219–20, 222 use of drugs 212, 224n Walzer’s scenario 4, 28–31 torture policy, slippery slope argument 219–20 torture warrants 220–2 accountability 220 and fear of torture 227n issuance problems 221–2, 227n political exploitation of 222–3 trust decline in 204, 206 moral 232 and obedience 232–4 truth and honesty 191 in politics 191 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 210–11, 214, 224n UN Conventions on war 218 United States and extraordinary rendition 222 Foreign Intelligence Surveillance Act (FISA) 221, 222 internment of Japanese-Americans 135, 151n, 222 McCain amendment to Defense Appropriations Act (2006) 213, 219 Patriot Act (2001) 136, 227n

258 Index United States – continued patriotic devotion to flag 137, 151n patriotism 135–6 Peace Corps 149 policy on torture 209 pre-emptive war 145 pursuit and death of Pablo Escobar 107–9 Watergate affair 103, 193–4 United States Army attitude to killing 239–40 dysfunctional decision-making 242–3 soldiers at Abu Ghraib 237 in Vietnam 229 West Point Military Academy code 228 universalism 123 moral 145–7 of moral rules xiv, xv, xxvii, 173 utilitarianism 22, 193, 195 view of morality 3, 4 weak consequentialism as compatible with 25–7, 31–3 see also rule-utilitarianism utopianism 115 values and evaluations 18n national 71 plurality of 18n theories of 7 see also moral values Vietnam War 115, 229 virtue Aristotelian theory of 116, 117 not helpless 6 in princes (Machiavelli) xii–xiii, 76 virtue ethics, Aristotelian 229, 230–1

Walpole, Sir Robert 136 Walzer, Michael and claim of punishment for dirty hands 38–50 crooked deal scenario 66, 89, 106, 107 definition of dirty hands 8–10, 60 dirty hands inherent in politics 105, 106 doing wrong to do right 21–2, 28, 30, 76–7, 105 moral residue argument 66 ‘Political Action: The Problem of Dirty Hands’ xv, xvi, xvii, xviii–xix, 27 role morality 78, 89 torture scenario 4, 28–31, 106 war laws of 228 and moral conflict 141 patriotism as cause of 140 pre-emptive 145 ‘war on terror’, and recourse to torture xxix–xxx, 10 Watergate affair 103, 193–4, 203 Watson, Don 199 Weber, Max 17n, 105, 111n, 114 ‘Politics as a Vocation’ xiv, xv Weimar Republic 24 Williams, Bernard 27–8, 38, 49 Wittgenstein, Ludwig 114 wrong categorical 38–9, 44 lesser evil is not 22 prima facie 31, 32, 38–9, 51n wrong action, politically justified 65 xenophobia

147

Yalanis, Captain Christopher

234