No democratic state will take a course that opposes the moral consensus of her people. This may seem like a tautology to you, but a surprising number of people — and pundits — think that one function of the apparatus of policy is to keep a country on a certain moral track, which it might otherwise stray from. This never happens in a democracy. The law is simply a reflection of what the people think, and this is more true the more the founding documents become “living”.
Which is why the “ticking bomb” — no, change that — the “kidnapped child” scenario is neither a distraction nor a frivolous inflammation in the torture debate — it is the crux.
Critics say policy should not be based on contrived scenarios, or extreme cases. But this is one policy area where the statute must either withstand the passions of an extreme moment, or it is useless, since it will, by definition, be consulted during the extreme. Normal people are not tempted to torture, normally, and that is the point: we only need a torture principle when we are being pulled away from normalcy by abnormal pressure.
So the very test is what you, personally, would do in the very abnormal situation. No other question is even relevant but this one: would you inflict suffering on a known conspirator to possibly save the life of your own kidnapped child? 95% of parents answer YES. Well, since every victim is someone’s child, why would you deny at a distance what you would do with your own hand? Let me help you: you won’t.
Some say this is precisely why we need a law – to protect us from our own worst tendency. The cool deliberations of the legislature instead of the passions of the nation of vigilantes, and all that.
This is breathtaking naivete. Do you charming philosophers not understand that the law can be reversed in an instant, and that laws are indeed revised with surprising rapidity in national crises? No law that contradicts the animus of the people can possibly survive the crisis.
Back to the point: no policy that contradicts the aggregate personal answers of the people can ever survive. If you answer “yes” to the kidnapper question, then you are a torturer. We’re not debating whether you have a principle, we are just debating at what point you will discard it.
So the hypocrisy of the present American conversation is remarkeable, even for a society where political hypocrisy is mundane. It is not that the emperor has no clothes — all the gawking people are naked, too. 95% of the people saying “this is America, we do not torture” would, in fact, torture — in some situation. No matter what law or policy this nation creates in its moral high dudgeon, it will reverse them all before the populace will see its own innocents killed or tortured by an enemy. This is a metaphysical certainty.
All the talk is just therapy, ahead of time.
TimothyOne 