Near the top of the list of annoying pernicious tendencies are moralistic readings of law and punishment. I was reminded of this in this essay by Charles Krauthammer, in which he argues that, in certain cases, we are morally obligated to torture a person. His position is much more thoughtful overall than many others who advocate torture of detainees, if still wrong. Krauthammer advocates torture only when it is necessary to prevent a terrorist attack. Nevertheless, the following passage is typical of what I call the moralistic position on torture:
"Breaking the laws of war and abusing civilians are what, to understate the matter vastly, terrorists do for a living. They are entitled, therefore, to nothing. Anyone who blows up a car bomb in a market deserves to spend the rest of his life roasting on a spit over an open fire."
In short, by committing an act of terrorism, one completely gives up ones dignity, and thus is to be treated humanely merely as a gesture of our largesse.
I'm sure all of you have encountered similar utterances in discussions of terrorism.
Now, it is naturally deeply unpopular to say anything that might be seen as sympathizing with terrorists or other killers. And sympathy has nothing to do with my objection to this way of thinking. It has everything to do with the idea of "certain inalienable rights". Often overlooked in the passage from which this quote is taken is the word "inalienable". In short, that means you can't take a persons rights away, or at least not with any sound justification. This applies especially to the state. This, in my view, is why it is widely accepted, and true, that torture is wrong in all cases.
"But what about the rights of the victims?" is the obvious question, and it deserves a real response. My reading of liberal (read: 'small L') theory is that the only justification for the state's infringing on a person's rights is for the protection of the rights of the whole. To murder is to negate another's fundamental rights and the prerequisite of an open society, and thus it clearly cannot be tolerated. The purpose of the punishment is to protect these rights for all, and the society that they whose existence they enable. What a criminal "deserves" is determined only by what measures are minimally effective to achieve this end.
By contrast, to conceive punishment as retribution, or as compensation of the victim, can only lead to barbarism. What exactly is enough compensation? Is anyone suggesting "an eye for an eye" anymore? The answer is that the latter is clearly forbidden by our constitution. The former has no clear answer.
The moment punishment is determined by a person's very subjective notion of what is morally fitting for another person, all reason and coherency in matters of justice break down. Not one person, nor even a majority of them, in any country, has the right to decide who possesses dignity and who doesn't. Any infringement upon human dignity is only justified by its demonstratable necessity in the name of preserving liberty.
Krauthammer is right to point out that terrorist acts are an attack on the foundations of an open society, and thus are grave crimes that may even go beyond mass murder. All crimes, however, represent a similar threat, albeit to a greater or lesser degree. But to then say that that one surrenders ones rights in proportion to the extent one has violated those of others simply leads to the 'eye for an eye' theory.
The key point here is that human dignity is inalienable, and we must infringe upon it only with great reservation and care. It is far too easy to let ones emotions dictate how we let the state treat people. It is more difficult, but also infinitely more noble and rational, to distance oneself just enough to understand what is ultimately fair and just and what isn't.