New York University Public Law and Legal Theory Working Papers

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This paper (originally presented as the Harvard Review of Philosophy Annual Guest Lecture in April 2011) explores the challenges involved in stating, characterizing and defending moral absolutes. The first part of the paper looks at the formulation of moral absolutes: must we assume that they are simple, directly prescriptive or prohibitive, not loaded with thick moral terms (as in "Do not kill the innocent"), etc? The paper compares the formulation of moral absolutes with the formulation of legal absolutes. And it considers some philosophical work on the subject, by Anscombe, Hare, Kant, and Finnis. The second part of the paper examines the ways in which moral absolutes – such as the rule against torture – deal with the burden of the humanitarian considerations arrayed against them in e.g. "ticking bomb" hypotheticals. Anxious to confront the best case that can be made against moral absolutes, the author insists that the most powerful challenge is that posed by Jeremy Bentham. Bentham's version of a ticking bomb hypothetical imagined that torturing one person may be the only way to save hundreds of people from being tortured. The challenge of this hypothetical is that each characterization of the awfulness of torture intensifies the stakes on BOTH sides of the dispute. This is the challenge that must be responded to, and the author argues that opponents of torture have made things too easy for themselves in just focusing on how bad (depraved, brutal, violative, etc.) torture really is. In responding to the challenge, the paper indicates a number of possible lines of inquiry – one in particular involving the idea of "tainted goods," i.e. the idea that the goods secured by a forbidden act (such as torture) may have some or part of their value compromised or tainted by the means used to achieve them. This and a number of other lines are explored. Along the way, the paper takes a couple of sly kicks at something called "threshold deontology." But at the end, the discussion is left open and inconclusive, with much more work to be done.

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Anscombe, Finnis, Hare, Kant, moral absolutism, rights, rules, security, ticking bombs, torture