What Is Foreseen and What Is Intended

I've been sparring with one of my intellectual mentors in a thread over at Liberty and Power about the Max Borders Controversy.

Perhaps the most objectionable part of Max's argument is his American exceptionalism. Max subscribes to a version of contractarianism - a version in which U.S. citizens are morally obligated to respect each other's rights by virtue of their social contract, but not necessarily obligated to respect the rights of foreigners.

While I find certain aspects of contractarianism appealing, I prefer Jan Narveson's approach, as laid out in The Libertarian Idea, which doesn't rely on any historical, legal, political, or otherwise concrete social contract, but on a sort of hypothetical, tit-for-tat strategy as a way out of the Prisoner's Dilemma state of nature. This is an ultimately cosmopolitan approach. And cosmopolitanism is a good thing; as I've noted elsewhere, "distinctions between people based on geographical location are unacceptably arbitrary and ethically unjustifiable."

But given the fact that deontological minarchist libertarians do make these sorts of unacceptably arbitrary and ethically unjustifiable distinctions, and those of us who don't still call them family, it's only fair to extend the same courtesy to Max.

That's one part of my disagreement with Roderick Long. The other part turns on whether torturing innocent people is self-evidently un-libertarian. Professor Long says yes. I say no. What follows is my reasoning and Professor Long's response.

Professor Long agrees with me that "Once one accepts that intentionally killing an innocent noncombatant is sometimes acceptable, complaining about torture is just haggling over price." In other words, if I can establish a single case where intentionally killing an innocent noncombatant is justified, I have successfully disproved the proposition that torturing innocent people is self-evidently un-libertarian.

I believe I have done so.

In an article titled "Thinking Our Anger," Professor Long wrote the following:

Some commentators distinguish between, on the one hand, the direct and deliberate targeting of civilians, of the sort that characterized the Allied bombing of Dresden and Hiroshima or the recent attack on the World Trade Center, and on the other hand, what goes by the military euphemism of "collateral damage"—that is, the unintended (though not necessarily unforeseen) civilian deaths that result as a byproduct from an attack on a military or otherwise hostile target, as occurred in President Reagan’s bombing of Libya, President Clinton’s bombing of the Sudan, and our current President’s ongoing bombing campaign against Iraq. It is often maintained that while direct targeting of civilians is immoral, collateral damage is not.

We know that the direct targeting of civilians is immoral, because we know that the terrorist attack on the World Trade Center was immoral. We dare not reject the former judgment without undermining our right to uphold the latter. But why might collateral damage be more justifiable? Well, the argument goes something like this. Suppose Eric straps a baby to his chest and then starts shooting at me. I can’t shoot him back without hitting the innocent baby. Yet although it’s too bad about the baby, it seems plausible to say that I still have the right to defend myself against Eric, and if the baby gets killed, the blame should lie not with me but with Eric, for bringing the baby into the situation in the first place. By the same token, it is argued, innocent deaths that result as a byproduct from attacks on hostile targets should be blamed on the hostile targets, not on the attackers.

But the moral legitimacy of collateral damage in the Eric case seems to depend importantly on four factors: first, the relatively small extent of the collateral damage (just the one baby); second, the high probability that shooting at Eric will actually stop him; third, the great extent of the contribution (total, as described) that stopping Eric will make to ending the threat; and fourth, the absence of any alternative way of stopping Eric that would be less dangerous for the baby. The case for collateral damage grows weaker as we alter any of these four variables. If Eric is shielded not just by one baby but by a whole city of babies; or if there’s some doubt as to whether Eric is actually even in the city; or if Eric is just one cog in a military machine, his individual contribution to the total threat being fairly small; or if there are ways of taking Eric out without bombing the city—to the extent that any or all of these are true, the case for the legitimacy of collateral damage is correspondingly weakened. As these variables move away from the Eric paradigm, the moral difference between collateral damage and direct targeting of civilians becomes more tenuous—as does the case for treating the two as morally different. Since in most real-world cases of collateral damage in warfare, most or all of these variables are shifted pretty far away from the Eric paradigm, I conclude that a general military policy of comfort with collateral damage is without justification.

Professor Long wants to make an important moral distinction between foreseen and intended killing. I find this distinction untenable. Maybe it's just my consequentialism talking, but it seems to me that if the U.S. decides to bomb a munitions factory in the process of a legitimate war of self-defense, and knows that the bombing has a high probability of collateral damage, the deaths of these innocent noncombatants are both foreseen and intended given the available options, even though the ultimate target is the munitions factory and not the civilians. The U.S. government can choose not to bomb the factory, in which case the civilians will continue to live.

If a result is foreseen, an action taken with the knowledge that this particular result will occur with high probability is rightly described as intended. It makes no sense to say that this is an unintended consequence when we know beforehand what the result will be. If we know beforehand that raising the minimum wage will cause unemployment, and yet we do so anyway in order to increase the wages of the employed, we cannot excuse our action by calling the foreseen unemployment an unintended consequence. We knew what consequence to expect; therefore it was an intended consequence, even though our ultimate goal was to help poor people. Perhaps, as some argue, the increase in unemployment is an acceptable cost and outweighed by the concomitant increase in wages for the remaining employed - just as others argue that the collateral damage is an acceptable cost and outweighed by the concomitant destruction of the munitions factory. But even if we assume for the sake of argument that the increased minimum wage is justified, the loss of jobs still traces back to our foreseeable and intended action, just as the loss of innocent lives (at least partially) traces back to our foreseeable and intended action. We may not like the bad consequences that accompany these decisions, and we may wish we lived in a world in which these bad consequences did not exist, but so long as we do live in such a world, and foresee that we do, we must accept the consequences of our actions as intended.

Thus, it is an open question whether intentionally killing an innocent noncombatant is sometimes justified. Thus, it is an open question whether torturing an innocent person is sometimes justified. Thus, Max gets to keep his libertarian membership card and remains in good standing with the powers that be.

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I'm not sure why a ban on

I'm not sure why a ban on torture is not necessarily a part of libertarian the ory. If libertarian theory embraces due process rights for the accused and witnesses, I would imagine one of the foundational rules would be "no torture".

- Josh

Try explaining all this

Try explaining all this wonderful and interesting theorising to a screaming mother who has just seen her husband and three children torn to pieces by American "collateral Damage".

Ah Micha, this article is

Ah Micha, this article is rife with questionable logic. Here’s just one of the flaws. Please forgive me if I’m a little sloppy, and for mixing my politics and philosophy, but it’s late:

Consider if you were within a stone’s throw of a sniper targeting you and had no defense but a grenade and no means of escaping. An innocent Shepard happens to be nearby the sniper, but unaware of the conflict. If I kill the sniper and sheppard with the grenade in self-defense, the violence is unintended but foreseen and justifiable. However, if I have a gun in my possession as well as a grenade, and could defend myself handily with it, without endangering the sheppard, then my use of the grenade, and the subsequent death of the sheppard, is intended, foreseen, and immoral. Innocence requires concerted effort to choose the least-harmful alternative, in cases of self-defense where harm to innocents are possible consequences.

I don’t know why you don’t bother considering that one should seek the least-harmful alternatives in these cases. If I were to take 1 guess, I would say that you are so happy to argue this line not for philosophical reasons, but because your brain has been muddled by the Israel-Palestine conflict. You aim to justify Israeli "collateral damage” that occurs in Palestinian’s lives. While I disagree with this, I think your real concern should be that this kind of attitude will not end the conflict, it will prolong it by giving otherwise level-headed Palestinians a legitimate reason to get involved in an otherwise crazy war (how many suicide bombers will the death of this girl inspire? And why is the Israeli government (to whom this man is accountable), and Israelis (to whom the government is ultimately accountable) turning a blind eye to the situation denying culpability, and thus complicit for the officer’s immoral act?).

The point is I think you take your innocents far too lightly. I would say that torture is only acceptable in the cases when it can be regarded self-defensive. In these cases, the tortured is never innocent, as far as I can tell.

Finally, once again, killing a non-combatant can not rightly be considered intentional if there is no alternative that achieves the goals of self-defense. However, if the death of an innocent occurs in an avoidable manner, then the death is intentional and the actor should be held accountable.

This way we can all defend ourselves without having to fear an over-zealous neighbor justifying murder under the name of self-defence.

...Ta Dah!...

oops my links were stripped,

oops my links were stripped, by my own fault. My apologies.

Here they are:
Dead Innocents: "this girl"
Not holding guilty subordinates culpable: Israel
Not holding your subordinates subordinates culpable: Israelis

I'm just saying, really twisted stuff lies down the road you are traveling. Then again, you were pro-Iraq war, right?

Ben W., For someone who

Ben W.,

For someone who accuses me of questionable logic, you make quite a questionable assumption yourself. This post has absolutely nothing to do with my thoughts on the Israel-Palestine conflict, and everything do with what I said it has to do with: namely, whether Max Borders willingness to entertain torture excludes him from the label "libertarian." Nothing more and nothing less.

If I kill the sniper and sheppard with the grenade in self-defense, the violence is unintended but foreseen and justifiable.

This isn't an argument. My post made clear why an intentional act with foreseen consequences should be considered intentional with regard to those consequences. I may be wrong, and am willing to be convinced otherwise, but simply stating the opposite of my conclusion with no supporting reasoning does not an argument make.

I don’t know why you don’t bother considering that one should seek the least-harmful alternatives in these cases.

I don't know why you assume that I don't make this consideration. Choosing the least-harmful alternative to achieve the desired result is a great policy. I'm all for it.

Finally, once again, killing a non-combatant can not rightly be considered intentional if there is no alternative that achieves the goals of self-defense.

Suppose that my wife is pregnant and there is only one path to the hospital (all the other possible paths happen to be blocked). I have a choice: I can either take my wife to the hospital (and achieve my goal of a safe birth) or not, and risk a home birth, which is significantly more dangerous.

If I choose to take my wife to the hospital using this one path, can this be considered an intentional act? After all, there is no other alternative path that achieves the goal of a safe birth. Should we say that my decision to take my wife to the hospital using this one path was unintentional?

I’m just saying, really twisted stuff lies down the road you are traveling. Then again, you were pro-Iraq war, right?

Nope. I was, since long before its inception, and remain to this day, strongly anti-Iraq war.

Josh, I'm sure you are more

Josh,

I'm sure you are more familiar with legal procedure than I am, but I believe there are a number of exceptions to due process rights, such as emergencies (no need for a warrant if you hear someone screaming inside the house) and war (enemy soldiers do not need to be read their rights). Insofar as libertarian theory embraces due process, I see no reason why it would not also embrace exceptions to due process, such as ticking-time-bomb scenarios and collateral damage when bombing a munitions factory.

A side point for Micha

A side point for Micha regarding positive rights:

Minarchists seem to want the positive rights of access to defense and policing to apply only to the citizens of the minarchy.

Some of these minarchists are clearly nationalists. They feel that foreigners are less important as people and thus aren't deserving of the positive rights.

Other minarchists may believe that all people are deserving of these positive rights, but that having a single government be responsible for providing these rights over too large a geographical area is inefficient.

These people would argue, for example, that citizens of Iraq deserved proper rule of law and defense services, but that the use of US power to provide such services would be too costly, viewed from the standpoint of ALL HUMANS, not just Americans. They might advocate the establishment of other organizations to achieve the same objective.

No hard feelings Micha. My

No hard feelings Micha.

My argument is that we should take these two, easily distinguishable classes of action (regular action and active, materially harmful action) and treat them and those who go about doing them in different ways. I think the goal of all these moral arguments is that we want to minimize the latter, so it makes sense to me that we have to treat these two differently when diagnosing these scenarios.

I aim to protect a persons right to self-defense without allowing actions that are unnecessaryily harmful. So in the munitions case, I would say that the actors, while potentially causing harm to innocents, can suitably justify these harms because their actions are self-defensive and they acted in a manner that would minimize these harms. Thus, we shouldn't treat these harms as "intended," for purposes of making a moral judgement, even if they are foreseen and intended. Essentially, they get a self-defence bye. So I don't dispute that the drive to the hospital is intended. This is not an easy standard to apply, but I haven't heard a better one.

I don’t know why you assume that I don’t make this consideration. Choosing the least-harmful alternative to achieve the desired result is a great policy. I’m all for it.

In short, I think it is necessary to consider whether the offensive action was the least-harmful one in making our moral judgements, not just our policy judements.

As for torture, I think my problem with it would be that it is, by it's very nature, not a tactic that minimizes harms in achieving the self-defensive aims of attaining information necessary for self-defense. Torture is very bad at producing good information, and it is harmful. Suitable alternatives include infiltration, intercepting communications, etc. I would say that torture may sometimes be justified, it is justified very rarely and immoral very often, so we are best off in maintaining a policy against it. I would like a more prinipaled argument against the general use of torture, but I don't know one.

Nope. I was, since long before its inception, and remain to this day, strongly anti-Iraq war.

Sorry for the false accusation.

Ben W., Thus, we shouldn’t

Ben W.,

Thus, we shouldn’t treat these harms as “intended,” for purposes of making a moral judgement, even if they are foreseen and intended. Essentially, they get a self-defence bye. So I don’t dispute that the drive to the hospital is intended. This is not an easy standard to apply, but I haven’t heard a better one.

I don't have a problem with giving these sorts of actions a "self-defense bye", and at the same time calling the harmful consequences intended. I'm not saying we shouldn't pursue these sorts of actions; only that we should recognize that we are partially responsible for all of the foreseeable consequences of our actions.

As for torture, I think my problem with it would be that it is, by it’s very nature, not a tactic that minimizes harms in achieving the self-defensive aims of attaining information necessary for self-defense. Torture is very bad at producing good information, and it is harmful. Suitable alternatives include infiltration, intercepting communications, etc. I would say that torture may sometimes be justified, it is justified very rarely and immoral very often, so we are best off in maintaining a policy against it. I would like a more prinipaled argument against the general use of torture, but I don’t know one.

I agree with this for the most part: justified uses of torture are very rare, and thus it might be good policy to ban it generally. But notice that this is a consequential argument against torture, not a natural rights one. And as you note, there are conceivable exceptions.

Micha, I'd like to set aside

Micha,

I'd like to set aside the question of forseen and intended consequences for a moment. Not because it's unimportant or uninteresting, but because I don't think that it actually bears very much on the issue with Max Borders. There is another important distinction that needs to be made here, and once made I think the question of forseen and intended consequences can be mooted without any effect one way or another on the debate over the permissibility of boiling innocent foreigners alive. There is an important disanalogy between the Eric case and what Borders says about boiling foreigners: in the case of Eric, I think it would be seriously mistaken to conclude that what the Eric case shows is that sometimes you can shoot innocent babies without their rights being violated, or that there are cases where assaulting innocents is not blameworthy. Not so: the baby's rights are being violated; it is being murdered. What the thought experiment shows is that the blame falls on Eric, not on the shooter. Why? Because it is Eric, not the shooter, who made it so that the baby would be shot. Killing innocent babies is not permissible on any theory of rights that could be plausibly characterized as "libertarian"; what the Eric case is meant to show is not that it's permissible, but to open the question of who is to blame for the rights violation.

It's an interesting and important question how far this analysis applies, and whether it applies to some of the different attempted justifications of torture that have appeared (I think it doesn't apply to most of them; because most of them actually involve a situation in which the torture victim is not innocent, and so have to do more with procedural rights and proportionality than with non-aggression). But however broadly or narrowly it may apply, it doesn't do Borders any good. His claim isn't that, when boiling innocent foreigners alive serves American interests, the fault for the boiling might rest on someone other than the boiler (who would it rest on?). His claim is that there just isn't any question of objective fault at all. No matter how hard you tried, you couldn't do anything wrong to an innocent civilian under a foreign sovereign; you could at most do something that would be foolish strategically, or perhaps something that you would find gross. Whereas the question of whether you can shoot the baby to stop Eric hinges on who gets the red card in the human rights game (you or Eric or both of you), the question that Borders raises is whether boiling innocent civilians is even governed by the rules of the game at all. Borders' stated position is that trying to blame anyone (much less demanding restitution from them) for boiling a completely innocent foreigner alive is like trying to pay with a cheque in a society that has no banks. Those of us who find his position monstrous (and/or anti-libertarian) are concerned with that, not with a disagreement over who properly to blame for the boiling.

Charles, I think it would be

Charles,

I think it would be seriously mistaken to conclude that what the Eric case shows is that sometimes you can shoot innocent babies without their rights being violated, or that there are cases where assaulting innocents is not blameworthy. Not so: the baby’s rights are being violated; it is being murdered. What the thought experiment shows is that the blame falls on Eric, not on the shooter. Why? Because it is Eric, not the shooter, who made it so that the baby would be shot.

I partially agree: I was not claiming that you can shoot innocent babies without their rights being violated. But I don't see why the thought experiment shows that the blame falls on Eric. Perhaps part of the blame falls on Eric, but part of the blame also falls on the shooter. The shooter has a choice: he can either shoot Eric and also kill the baby, or he can do neither. Although Eric ultimately restricted the shooter's choices to two undesirable ones, the choice to take the baby's life still lies with the shooter.

Under certain circumstances, I think shooting Eric and the baby is okay, but this certainly entails violating the baby's rights. All this shows is that, along the same lines David Friedman argued in Machinery of Freedom, sometimes other concerns outweigh strict adherence to natural rights principles. Wrote Friedman,

"Our response to such questions demonstrates that we do not really believe in simple single values. Most libertarians, myself among them, believe that a libertarian society is both just and attractive. It is easy enough to claim that we are in favor of following libertarian principle whatever the consequences--given that we believe the consequences would be the most attractive society the world has ever known. But the claim that we put individual rights above everything else is, for most of us, false. Although we give some value, perhaps very great value, to individual rights, we do not give them an infinite value. We can pretend the contrary only by resolutely refusing to consider situations in which we might have to choose between individual rights and other things that are also of great value.

"My purpose is not to argue that we should stop being libertarians. My purpose is to argue that libertarianism is not a collection of straightforward and unambiguous arguments establishing with certainty a set of unquestionable propositions. It is rather the attempt to apply certain economic and ethical insights to a very complicated world. The more carefully one does so, the more complications one is likely to discover and the more qualifications one must put on one's results."

Borders’ stated position is that trying to blame anyone (much less demanding restitution from them) for boiling a completely innocent foreigner alive is like trying to pay with a cheque in a society that has no banks. Those of us who find his position monstrous (and/or anti-libertarian) are concerned with that, not with a disagreement over who properly to blame for the boiling.

True. Borders' position is certainly an unconventional one among libertarians. But then so is ethical subjectivism in general. I don't think that excludes Borders' position from libertarianism in general, unless we are willing to apply the same strict standard to all ethical subjectivists, all minarchists, and all those who are willing to let other concerns outweigh respect for natural rights.

"Under certain

"Under certain circumstances, I think shooting Eric and the baby is okay"

Careful Micha, Bargnier might find out where you work.

Yes, I'm still bitter.