John Stuart Mill and David Luban on Justice and Crimes Against Humanity

John Stuart Mill on Justice

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John Stuart Mill (1806 – 1873) was a British philosopher, economist, moral and political theorist, and administrator, and one of the most influential English-speaking philosopher of the nineteenth century. In order to learn about his approach to justice, I read chapter 5 of his book Utilitarianism, a philosophical defense of utilitarianism in ethics. The chapter is titled “Of the Connection between Justice and Utility.”

In this chapter, Mill begins by acknowledging his opposition, which claims that utilitarianism is incompatible with justice. Utilitarianism can imply that we should treat people unfairly at times, and in doing so violate their moral rights. It extends the acceptable choices that one makes for his/her own life to situations of conflict of interest among people.

In this chapter, J. S. Mill examines this conflict between utilitarianism and justice. He sees the problem as being that the sentiment of justice feels more compelling and morally authoritative than the sentiment of benevolence associated to utilitarianism. Mill thinks that ‘people are in general willing enough to allow that objectively the dictates of justice coincide with a part of the field of general expediency.” Still, the “subjective mental feeling of justice” is usually more imperative in its demands that the feeling “which commonly attaches to simple expediency”.

Mill looks for a common quality that unites all modes of conduct and policy we deem just. It is thought normally to be unjust to (a) violate someone’s legal rights, or those that ought to be his rights, (b) not to treat people as they deserve, (c) to break faith with anyone, (d) to be partial in those situations where impartiality is required, and (d) to treat people unequally, though people disagree greatly on what kind of equality is morally required.

Mill looks at the etymology of the word “justice”, and finds that the idea of justice is tied to the idea of conformity to law, at least law as it ought to be, and this is the common thread that he draws between different modes of injustice.

We consider something to be unjust if we think law should not enforce it, and that it is fit for punishment, either by law, public opinion, or conscience. However, this is not a specific idea of injustice but a more general idea morality. Mill states that an act that is morally wrong is one that ought to be punished somehow.

To define injustice, Mill talks about how a particular person or persons may be wronged. He states, “Justice implies something which it is not only right to do, and wrong not to do, but which some individual person can claim from us as his moral right” (p. 49). Justice, Mill argues, should not have independent moral authority against general welfare. The following is a summary of his points supporting this argument:

1. Justice is a primitive instinct. Mill says that “the sentiment itself does not arise from anything which would commonly or correctly be termed an idea of expediency, but that, though the sentiment does not, whatever is moral in it does” (p. 50). An example that he provides is that the desire to punish someone who harms a person grows out of two primitive sentiments–the instinct of self-defense and the feeling of sympathy. We want to harm those we see as threatening to harm us and those with whom we sympathize. There isn’t anything moral in these instincts, which Mill identifies with the principle of utility.

2. Justice is ambiguous. Injustice occurs when someone’s rights are violated. When someone has a right to something, he has “a valid claim on society to defend him in the possession of it” (p. 2). But there may be many conflicting rights claims, especially when considering controversial issues. For example, Mill brings up the point that some say punishment is just only when done to benefit the person punished; others say this would be wrong and that punishment is acceptable only when needed to protect the legitimate interests of other people, others say punishment is always unjust. Some say the punishment should be exactly proportioned or matched to the severity of the crime; others say that the only good justification for punishment is that it is necessary to deter that criminal or others from committing further crimes. Mill says only utility can reasonably resolve these conflicting claims. The rights claim that is valid is the one protection of which best promotes the general happiness.

3. Part of the explanation of the strength of the feeling of mortality, that we should do what is just is that, in general, this moral code promotes utility in matters that are important to peoples’ lives. Justice may not be a moral standard distinct from utility, but where justice that coincide with utilitarianism is “the chief part, and incomparably the most sacred and binding part, of all morality” (p. 58). Justice and utility overlap on rules forbidding people to hurt one another or interfere with their freedom without good reason, such as through torture. Of course these rules are not absolute, and they allow for unusual circumstances or cases when general happiness is best served by making an exception.

4. The core of justice is implied by the principle of utility. Treating other “according to his deserts, returning good for good, as well as repressing evil by evil, ” requires us to “treat all equally well . . .who have deserved equally well of us” and requires society to “treat all equally well who have deserved equally well of it.” This is, according to Mill, “the highest abstract standard of social and distributive justice.” This rule is derived from utilitarian morals, which requires that each person’s happiness “counts equally in calculations to determine social policy as every other person’s.” Norms of justice as implied by the utilitarian morality stipulate that everyone has an equal claim to happiness, and the means to happiness.

Even if these considerations of justice may not determine the morally right answer, they might rule out some wrong answers, and the utilitarian inclination might be among these. In order to establish equality in utilitarianism, there must be equal consideration when determining the right policy, and nobody’s interests and desires may be discounted. However, if the aim is to maximize the sum of utility, this practice may be compatible with extreme inequality. For some, equal consideration may not seem equal enough.

Mill suggests a proposal about what the utilitarian criterion of right conduct is. This is that a wrong act is one that is fit to be punished or ought to be punished, and a utilitarian account of wrong acts then stipulates that these acts that ought to be punished are the ones punishing which would maximize utility. A right act is an act that would be wrong to not do. An act is neither right nor wrong if it is not wrong to do it and not wrong to not do it either J
David Luban on Justice and Crimes Against Humanity

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David Luban is a Professor of Law and Philosophy at Georgetown University. He has also directed Georgetown’s center on National Security and Law. He has published many works, such as Legal Ethics and Human Dignity (Cambridge 2007) and Torture, Power, and Law (Cambridge 2013), as well several edited anthologies on legal ethics and textbooks on international criminal law and on legal ethics. His writing includes more than 150 articles on international criminal law, moral and legal philosophy, professional ethics, law and literature, just war theory, and issues surrounding the U.S. “war on terrorism.” He has testified before both houses of the U.S. Congress on the torture debate.

In his paper Liberalism, Torture, and the Ticking Bomb, David Luban talks about the nature of torture in relation to liberalism, and whether or not its use is justified. He begins by stating, “Torture used to be incompatible with American values”. He then brings up the point that the Bill of Rights forbids cruel and usual punishment, which includes all forms of corporal punishment except prison and death by methods deemed painless. He mentions the Senates ratification of the Convention Against Torture, anti-torture legislation that Congress has enacted, and America’s historical condemnation of states that utilize torture, and our practice of granting asylum or refuge to those who fear it.

He then moves to September 11. He described a quiz that was given to a university ethics class less than a week after the event, asking what the proper US response to the terrorist attacks would be: A execute perpetrators on sight, B bring them back for trial in the US, C subject perpetrators to an international tribunal, or D torture and interrogate those involved. A majority of the students chose A and D: execute on sight and torture them. He talks about the increased discussion of torture after 9/11, and the press reports about FBI harsh interrogation tactics, and generally the extent to which the supposed American abhorrence to torture had been shaken.

Luban defines liberalism in the context of the US being independent of progressive or conservative ideology, including conservatives as well as progressives so long as they believe in “limited government and the importance of human dignity and individual rights.” He argues that liberal abhorrence towards torture may only be “skin deep”. While the liberal reverence for individual rights makes torture morally unacceptable, these same liberal ideas can justify interrogational torte in cases of extreme danger.

The example the he brings up is that of the use of nonlethal torture in a ticking-bomb case, in which it would be justified. However, he points out that the ticking-bomb stories make the case for the use of torture as an emergency exception, but use institutions based on these exceptional cases to justify institutionalized practices and procedures of torture.

He discusses how there has been no taboo on torture in military and juridical contexts throughout most of human history, but it is in today’s society that cruelty is “put first”, and regarded as one of the most vicious of all vices. However, he argues that torture and cruelty are incompatible with liberalism, and seeks to show this through establishing that torturing terrorist for information is not done out of cruelty.

The difference between suffering in collateral damage during the Afghan and Iraq wars, the examples Luban gives, seem to be less immoral and illiberal than torture because of the relationship between torturer and victim. The self-conscious aim of torture to cause victims to be isolated, overwhelmed, terrorized and humiliated stripes away qualities of human dignity that liberalism prizes. Luban argues that the relationship between the torturer and victim of the torture is a microcosm of the highest level of intensity of the “tyrannical political relationships that liberalism hates the most.” Luban argues that there are five aims of torture: victor’s pleasure, terror, punishment, extracting confessions and gathering intelligence.

Liberalism, Luban says, incorporates “a vision of engaged, active human beings possessing an inherent dignity regardless of their social station.” Victims subjected to torture are in every aspect opposite to this vision, reduced, terrified and humiliated instead of engaged, active and dignified. The victor’s pleasure in torture is a living embodiment of liberals’ worst nightmares of tyrannical rulers who take pleasure from degradation of those who are subject to their will.

One aim torture is to terrorize people into submission, for reputation and intimidation for enemies. this practice of subduing and tyrannizing people is again fundamentally hostile to liberals’ political philosophy.

Punishment is another aim of torture. Luban talks about how the 8th Amendment to the US Constitution prohibits cruel and unusual punishments, rot cruelty more generally. He says that cruel and unusual punishments would be contrary to justice, and to the nature of the social contract, as suppressing citizens in the manner would contradict liberal understanding of the ends of society. Luban argues that the abolition of punitive torture had little to do with increased humanitarianism, but with the change in distribution of crime in Western Europe, how property crimes began to eclipse crimes of passion as social problems. This led to milder systems of punishment. Torture, Luban argues, was “a symbolic assertion of the absolute sovereignty whose personally prerogatives had been affronted by crime.” With the growth of liberal democracy, this ideology became irrelevant as the people had the rule, and the responsibility of punishment, whether punitive torture or otherwise, therefore fell on them.

Another aim of torture is extracting confessions.When it was accepted that the criminal justice system could base guilty verdicts on evidence that rationally established facts, rather than through confession, the need for torture to convict criminals was no longer present. Furthermore, the “only crimes for which the primary evidence is the perpetrator’s own words are crimes of heretical or seditious belief – and liberalism rejects the criminalization of belief.”

Based on these arguments, Luban concludes that the four illiberal motives for torture are victor’s pleasure, terror, punishment, and extracting confessions. The last aim of torture that he discusses, and that he argues might conceivably be liberally acceptable is torture as a technique of intelligence gathering from captive who will not talk. This aim is the most relevant and important in the context of the FBI 9/11 interrogation techniques report. The key difference between this aim and that of extracting confessions is that the later is focused on ratifying the past for purposes of retribution, while the former is forward-looking and aims to gain information to prevent future evils such as terrorist attacks. This rationalizes the motivation for torture, and can almost make it seem heroic if it is done to save lives. However, Luban calls this a “dangerous delusion”. He believes that the ticking bomb is the wrong thing to think about, and that it is proffered against liberals who believe win absolute prohibition against torture in order to force them to admit that torture is justified in a least this one situation. Once the prohibitionist concedes this, opposition to torture is no longer based on principle, and it is only a question of what conditions justify torture.

Luban discusses a case in 1995 in which an al Qaeda plot to bomb eleven US airliners and assassinate the Pope was thwarted by information tortured out of a Pakistani bomb-maker by the Philippine police. Luban argues that one cannot use the argument atht preventing the al Qaeda track justified the decision to torture, as at the moment he decision was made, no one knew about eh al Qaeda attack; it was based solely on word of threats that the police as heard – rumors. Luban argues that the ticking time bomb case is the wrong question to ask as the conditions of knowing for sure that there is a bomb, and that officials know it and know they have the man who planted it will seldom be met. He instead asks how likely does it have to be that a victim of torture know something important? And, how long should the victim be tortured before officials accept that he or she knows nothing?

Luban brings up the reality of torture in the US, referring to the group of lawyers in President George W. Bush’s administrate who wrote the secret memoranda that came close to legitimizing torture for interrogate purposes. He talks about the two Office of Legal Counsel (OLC) memos written in early 2002, concluded that the Geneva Conventions do not cover al Qaeda or Taliban captives. He also recalls President Bush’s February 7, 2002 memo asserting that “the prisoners would be treated consistently with Geneva to the extent appropriate and consistent with military necessity,” a large loophole for intelligence-gathering he claims.

Luban concludes that the liberal ideology of torture, which assumes that torture can be neatly categorized as moral or justified in the exceptional ticking-bomb cases and therefore removed from cruelty and tyranny, is a dangerous delusion.

This is especially important, he notes, in the contexts of an endless war on terror, a permanent emergency in which the White House insists that its “emergency powers rise above the limiting power of satires and treaties.”

In his paper A Theory of Crimes Against Humanity, Luban defines crimes against humanity in relation to justice. He first distinguishes between different definitions of “humanity” – the first is the abstract property, the quality of being human, while the second refers to humankind, the set of individuals. Crimes Against Humanity, he states, are “not committed only against the victim, but primarily against the community whose law is violated.” He brings up Mary Ann Glendon’s explication of Crimes Against Humanity at the Nuremberg Trials. She states that to “persecute, oppress, or do violence to individuals or minorities on political, racial, or religious grounds in connection with such a war, or to exterminate, enslave, or deport civilian populations, was a crime against humanity.” Luban says “crimes against humanity are simultaneously offenses against humankind and injuries to humanness.” They are so “universally odious”, he argues, because they injure a fundamental aspect of human being, that of our character as political animals. We are creatures compelled to live socially by nature, but we cannot do so without artificial political organization that “inevitably poses threats to our well-being, and, at the limit, to our very survival.” The worst of these threats, he says, are represented by crimes against humanity. Luban essentially proposes that 1) “humanity” in “crimes against humanity” refers to our political character and 2) that these crimes pose a universal threat that all humankind has interest in repressing. He expresses how all the statutory “definitions of crimes against humanity” have in common is that they specify that these crimes are severe persecution inflicted by a state, or a state-like organization, on a civilian population or groups under their control as part of an organized plan. In the case of the interrogation and torture practices on the part of the CIA, the state would be the US, and the group or population would be anyone suspected of association with the al-Qaeda and with Islam.

Resources and Citations:

Luban, David, “A Theory of Crimes Against Humanity” (2004). Georgetown Law Faculty Publications and Other Works. Paper 146.
http://scholarship.law.georgetown.edu/facpub/146

Read here: http://scholarship.law.georgetown.edu/facpub/146

 

Luban, David, “Liberalism, Torture, and the Ticking Bomb” (2005). Georgetown Law Faculty Publications and Other Works. Paper 148.
http://scholarship.law.georgetown.edu/facpub/148

Read here: http://scholarship.law.georgetown.edu/facpub/148

 

Mill, John Stuart (1906). Utilitarianism. Chicago, IL: University of Chicago Press.

Read here: http://www.marxists.org/reference/archive/mill-john-stuart/1863/utility/ch05.htm

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