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The Results of Legal Plunder

Nicholas M. Guariglia - 4/30/2008

The French philosopher Frederic Bastiat once defined the nexus of legality and morality in an 1849 treatise entitled The Law. In it, Bastiat highlights “the results of legal plunder,” a dilemma in which citizens may find the lawfulness of a practice to be ethically abhorrent. “The safest way to make laws respected is to make them respectable,” it states, continuing, “When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence…”

A free society cannot endure without the rule of law. This much is certain. But what are the ramifications in unquestionably conceding to the law, and reinforcing the notion that legality supersedes extenuating circumstance? Without a societal habit of periodic self-scrutiny –– a tradition to question tradition, in a sense –– we overlook that history is littered with examples where what was lawful was wrong.

The enslavement of the Helots was, by Athenian standards, legal. The compulsory American laws which disallowed matrimony between two people of different ethnicity were eventually seen to be defunct and improper. Lawyers of the Third Reich ensured their Nazi masters what they were doing was lawful and written down on some obscure German legal document.

Any debate regarding detainee interrogation should be put into this context. I have never been put to this test, and hopefully never will be, but I would like to believe no such moral fog would arise if given the stark choice between conducting subjectively tortuous acts to save innocents, and doing nothing to kill them –– maintaining the very Kantian ethic of remaining pure at heart, consequences be damned.

Just how can the interrogator live with oneself knowing that a vile of toxin, say, wouldn’t have made it to a county’s water reservoir if only he or she had belly-slapped the interrogated a little harder, and a little more often?

The morality of a law ought to be adjudicated by the landscape in which it was written, in which it is or is not followed, and by whom. On an international level, the political nature of law-abiding or law-violating actors must never be disregarded. A professor of mine recently handed out case studies of torture, mixing in the stories of Abu Zubaydah and Khalid Sheikh Mohammad with that of tortured journalists in Zimbabwe, human rights activists in China, and monks in Burma. What struck me was the amorality in applying the same standard amongst the detainees in question. (I remind all reading that it was our drugging up of Zubaydah that exposed al Qaida’s links to the Saudi royal family’s inner circle. Prince Turki al Faisal had been Zubaydah’s interlocutor, and an accused Faisal later came to lecture diplomacy students at Seton Hall about “cultural understanding” and all that nonsense.)

Domestically, the courts and our law enforcement see broad distinctions between the apprehended; someone who commits a harsher crime will invariably receive higher bail, et cetera. Yet no such apparent differentiation transpires with international law, in that many find it altruistic to apply one legal standard whether we are dealing with a democracy dissident or an internationally wanted terrorist.

There’s a certain peculiar strand of thought that is uncomfortable with this kind of subjectivity, where bias is not seen in its morally neutral light –– is it not morally good to be “biased” in favor justice and morally wrong to be “biased” in favor of genocide? –– but rather as an indication of an unfair predisposition, and where “judgments” of any kind are frowned upon.

Some view the one-standard concept as a testament to our idealism and values –– “Who else, if not us, would afford such legal leeway to such al Qaida monsters?” –– not an insult to legitimate political prisoners, or, dare I say, a reckless position no responsible statesmen, with the lives of millions on his or her back, would take before a moment of pause.

All that is required is a sober acknowledgement that existing interrogation laws may, perhaps, be archaic; that certain individuals with the intent and, perhaps, the wherewithal to destroy ten cities with ten suitcases be treated legally different than those without such intent; and not to allow such interrogated individuals veto power over what he or she considers to be subjectively tortuous (loud music, verbal insults, mockery, barking dogs, etc.).

I’m aware of the slippery-slope implications and we should welcome them with the following corollary: If it is morally permissible to take a life to save lives –– think of a hostage situation –– how can it not be morally permissible to inflict pain to save lives? When it comes to the interrogation of a few specified suspects, the law should reflect morality, not vice versa.