Understanding Evil: An Interdisciplinary Approach

Understanding Evil: An Interdisciplinary Approach

At the Interface

Dr Robert Fisher Series Editor

Advisory Board Professor Ned Basic Dr Diana Medlicott Professor James Cameron Revd Dr Stephen Morris Professor Margaret Chatterjee Professor John Parry Dr Salwa Ghaly Dr David Seth Preston Professor Michael Goodman Professor Dan Primozic Revd Dr Kenneth Wilson, O.B.E

Volume 2 A volume in the At the Interface project ‘Perspectives on Evil and Human Wickedness’

Probing the Boundaries

Understanding Evil: An Interdisciplinary Approach

Edited by

Margaret Sönser Breen

Amsterdam – New York, NY 2003

The paper on which this book is printed meets the requirements of “ISO 9706:1994, Information and documentation – Paper of documents – Requirements for performance”. ISBN: 90-420-0935-7 ©Editions Rodopi B.V., Amsterdam – New York, NY 2003 Printed in The Netherlands

Contents Introduction PART I

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Grappling with Evil Evil and Literature: Grandeur and Nothingness

1

Neil Forsyth Reframing Evil in Evolutionary and Game Theoretic Terms

19

Theodore Seto The Catheter of Bilious Hatred

33

Robert N Fisher Reading for Constructions of the Unspeakable in Kafka’s Metamorphosis

43

Margaret Sönser Breen PART II

Justice, Responsibility and War Never Just, Always Evil: The View of Warfare in the Writings of the Ante-Nicene Fathers

57

Peter Day International Justice, Intervention, and the Prevention of Evil

75

Bill Wringe Terrorism and Just War Theory

95

Scott Lowe Collective and Individual Responsibility for Acts of Terrorism John T. Parry

107

PART III

Blame, Murder, and Retributivism Moral Responsibility, Liability, and Perversion: A New Understanding of Wickedness

129

Maria Michela Marzano The Humane Principle and the Biology of Blame (Evolutionary Origins of the Imperative to Inflict)

145

John A. Humbach Rescuing Kant’s Retributivism

163

Ramzi Nasser Ordinary Sinners and Moral Aliens: The Murder Narratives of Charles Brockden Brown and Edgar Allan Poe

181

Jean Murley Evilness and Law in Heinrich von Kleist’s Story “Michael Kohlhaas”

201

Karen-Margrethe Simonsen Notes on Contributors

221

Welcome to At the Interface/Probing the Boundaries By sharing insights and perspectives that are both inter-disciplinary and multi-disciplinary, ATI/PTB publications are designed to be both exploratory examinations of particular areas and issues, and rigorous inquiries into specific subjects. Books published in the series are enabling resources which will encourage sustained and creative dialogue, and become the future resource for further inquiries and research. Understanding Evil: An Interdisciplinary Approach is a volume which belongs to the research project Perspectives on Evil and Human Wickedness (www.wickedness.net). This wide ranging project seeks to explore issues connected with evil, suffering, pain and the consequences of human actions. It recognises that even the language of 'evil' is a problem, and attempts to find ways of beginning to make sense of human wickedness. Key themes that are central to the project include; · · · · · · · · · · · · · · · ·

the language of evil the nature and sources of evil and human wickedness moral intuitions about dreadful crimes psychopathic behaviour; is a person mad or bad? choice, responsibility, and diminished responsibility social and cultural reactions to evil and human wickedness the portrayal of evil and human wickedness in the media and popular culture suffering in literature and film individual acts of evil, group violence, holocaust and genocide; obligations of bystanders terrorism, war, ethnic cleansing the search for meaning and sense in evil and human wickedness the nature and tasks of theodicy religious understandings of evil and human wickedness postmodern approaches to evil and human wickedness ecocriticism, evil and suffering evil and the use/abuse of technology; evil in cyberspace

Dr Robert Fisher Inter-Disciplinary.Net www.inter-disciplinary.net

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Introduction Understanding Evil: An Interdisciplinary Approach consists of thirteen essays presented at the third annual Conference on Evil and Wickedness, held in March 2002 in Prague. Written across the disciplines of law, literature, philosophy, and theology, the essays represent wideranging approaches to and understandings of “evil” and “wickedness.” The collection consists of three sections. Part I, “Grappling with Evil,” offers four chapters, as does Part II, “Justice, Responsibility, and War.” Part III, “Blame, Murder, and Retributivism,” rounds out the collection with five chapters. “Grappling with Evil” begins with Neil Forsyth’s essay, “Evil and Literature: Grandeur and Nothingness.” This first chapter analyses constructions of evil at work in Shakespeare’s plays. Paying special attention to Macbeth, Forsyth argues that “Evil is nothing—or at least it leads to nothingness. Everything disappears into language, and the language is without meaning.” For Forsyth there is grandeur in this kind of nothingness: “Macbeth sees with great clarity and courage the nothingness that his life has become.” This combination of grandeur and nothingness, Shakespeare’s formula here for tragic heroism, anticipates Romanticism’s fascination with overreachers and madmen. It is a fascination, as Forsyth himself makes clear, in which twentieth-century and even contemporary culture still participate. Chapter 2, “Reframing Evil in Evolutionary and Game Theoretic Terms” by Theodore Seto, shifts our attention from literature to moral theory. Offering a theory of normative obligation based on evolutionary and game theory, Seto argues that “evil” may be defined “both concretely and usefully.” In terms of game theory, Seto observes that “[i]ndividuals who appropriately cooperate, punish, and forgive tend to survive and reproduce more successfully than those who do not.” Cooperation, he continues, is also a key mandate of evolution. Thus, evil may be defined as “a serious intentional maladaptive breach of the principle of reciprocity other than an individual failure to punish.” Chapter 3, “The Catheter of Bilious Hatred” by Robert Fisher, also seeks to define evil. Fisher begins by noting his “botherment”; his immediate concern is with the brutal deaths of two children, reported by the media in the United Kingdom in 2001. The descriptions of these deaths, which noted the sustained, systematic, and intricate forms of violence that the children endured, lead Fisher to a four-part definition of “evil” that recognizes its aesthetic quality. For Fisher, “‘evil’ is …peculiar to us as a species; …intelligently artistic; …intensely creative, and…personally satisfying.” Given these components, “evil,” Fisher argues, can only be answered by a “goodness” that consists of

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Introduction

____________________________________________________________ “intelligence, imagination, and creativity.” “Botherment” itself is the necessary ground for the production of “goodness.” Chapter 4 is my own essay, “Reading for Constructions of the Unspeakable in Kafka’s Metamorphosis.” Like “The Catheter of Bilious Hatred,” “Reading for Constructions” is interested in the aesthetics of “evil,” though in this latter case the aesthetics are aligned with the sociopolitical drive to brand cultural “others” as “evil.” More specifically, I consider in chapter 4 how the events of September 11, 2001 have been answered in the United States by widespread acts of intolerance and violence directed against various minority groups. Focusing on sexual minorities in particular, I discuss how an analysis of Franz Kafka’s paradigmatic tale of “othering,” The Metamorphosis (1915), allows one to recognize the desire to label people as “evil” as a persistent and widespread practice in the service of cultural hegemony. Part II, “Justice, Responsibility, and War,” begins with Chapter 5, Peter Day’s essay “Never Just, Always Evil: The View of Warfare in the Writings of the Ante-Nicene Fathers.” This chapter shares many of the concerns of the preceding one; however, whereas “Reading for Constructions of the Unspeakable” considers the contemporary United States cultural climate and offers a reading of a relatively modern text, “Never Just, Always Evil” focuses on the teachings of the early Christian church and on the “often selective” contemporary interpretation of those teachings. Specifically, Day contrasts the pacifist beliefs of Christians in the first three centuries with the Church’s later investment in the concept of “just war,” a concept that, tellingly, was taken up by the Church once “the Roman empire became a ‘Christian’ state.” For Day, this change in belief only foregrounds the importance of early Christian teachings. He concludes his essay by arguing that “[w]hile attitudes to war change over time, the misery and suffering caused by conflict do not.” Chapter 6, Bill Wringe’s essay, “International Justice, Intervention, and the Prevention of Evil,” sustains the concern with war. Shifting attention once again to contemporary events, Wringe begins his essay with a question: Do the governments of Western liberal democracies have a right or, under certain circumstances, an obligation to intervene in the internal affairs of other states, perhaps by military means, in order to prevent the subjects of those states from suffering persecution from their own government? In attempting to answer this question, Wringe examines arguments put forth by John Stuart Mill in “A Few Words on Non-Intervention” and,

Introduction

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____________________________________________________________ more recently, John Rawls in The Law of Peoples. Wringe’s critique of both arguments allows him to offer “a tentative…defence of intervention.” Chapter 7, Scott Lowe’s “Terrorism and Just War Theory” in turn looks at the issue of military intervention from a different perspective. He argues that terrorism “is not compatible with just war theory.” Critiquing the position of political theorist Andrew Valls, Lowe maintains that while certain isolated acts of terrorism may be justified, most acts of terrorism cannot meet the criteria of a “just war.” Like Chapter 7, Chapter 8 is concerned with terrorism. In “Collective and Individual Responsibility for Acts of Terrorism” John Parry “sketches a framework for attributing responsibility and imposing punishment for acts of terrorism.” With the September 11 attacks serving as his “baseline examples,” Parry argues that terrorist acts should be considered in terms of “traditional methods for attributing personal responsibility derived from criminal law” rather than in terms of the “broader and more dangerous ideas of collective responsibility and guilt.” Part III, “Blame, Murder, and Retributivism,” takes up the question of individual responsibility with which Parry, in his analysis of the September 11 attacks, is concerned and focuses it, in various ways, within domestic, local, and literary contexts. Part III begins with Chapter 9, Maria Michela Marzano’s “Moral Responsibility, Liability, and Perversion: A New Understanding of Wickedness.” Marzano’s point of departure is the case of an assisted suicide, in which a father helped his manic depressive daughter die. “Was her death a real challenge to the fact that killing is always wrong? Could a person like [the father] not be judged guilty on the grounds of diminished responsibility?” Marzano asks. Further, “could the notion of diminished responsibility help us when looking for a qualification for wickedness?” In pursuit of these questions, Marzano contrasts the father with the “pervert subject,” a person who, “able to understand the meaning of [his] actions and…consequences, …consciously decide[s] to ‘use’ and ‘objectify’ others.” For Marzano, it is the latter person against whom “wickedness” should be defined. Like chapter 9, Chapter 10 considers the issue of human suffering. Specifically, John Humbach’s “The Humane Principle and the Biology of Blame (Evolutionary Origins of the Imperative to Inflict)” argues in support of the Humane Principle of moral action, whereby any act to cause human suffering is wrong and must be avoided unless it is honestly meant as the most humane alternative that the situation presents, according equal concern to all who are affected.

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____________________________________________________________ For Humbach, a system of moral evaluation that places reliance not on the Humane Principle but rather “on blame-and-deter justice will inevitably leave many innocents to suffer.” Rooted in biological adaptation, the latter’s eye-for-an-eye course of action represents “a mode of social control…whose time has passed.” Chapter 11, in turn, takes a very different view of this Principle of Just Deserts. For Ramzi Nasser, in “Rescuing Kant’s Retributivism,” retributivism “sets forth a fair system of punishment, that is not, in theory, at least, cruel, vengeful, or in violation of individual rights.” Citing his own work as a public defender in San Diego, Nasser explains how many of his clients are illegal aliens who are charged with unlawful entry into the United States. Their sentences, he argues, far exceed their violation of the law. In their case, as in others’, Kant’s retributivism, “[r]ather than being harsh, exacting, and vengeful, …[would place] limits on the amount of punishment individuals receive so that the punishment is not out of proportion with the crime.” Chapter 12 shifts interest from the legal system to literature. In “Ordinary Sinners and Moral Aliens: The Murder Narratives of Charles Brockden Brown and Edgar Allan Poe,” Jean Murley argues that both of these American writers explored “evil” through their fictional accounts of murder. In her analysis of Brown’s Wieland (1799) and Poe’s “Murders in the Rue Morgue” (1841), “The Tell-Tale Heart” (1843), “The Black Cat” (1843), and “The Imp of the Perverse” (1845), Murley analyses the change “in the broad conception of human evil…between the lateeighteenth and mid-nineteenth centuries.” From Brown to Poe, evil moves from being a primarily external force that “invade[s]…fallen human nature” to being a component of certain individuals’ psychological makeup. For Murley, both writers’ fascination with evil attests to their investment not in a need for evil but rather in a “need to account for it.” Chapter 13 is the final selection, and Karen-Margrethe Simonsen’s “Evilness and Law in Heinrich von Kleist’s Story ‘Michael Kohlhaas’” may be said to combine the interests of the previous chapters in Part III. Simonsen’s concern lies with early nineteenth-century German writer Heinrich von Kleist’s fictional account of the relation between an actual historical figure, Michael Kohlhaas, and the law. At issue, once again, is the question of evil. “[W]hat,” Simonsen asks, “can be called ‘evil’ if there is no stable world order?” In “Michael Kohlhaas,” she argues, “evilness is what emerges when a whole set of concurring factors that in themselves seem insignificant, or even good, work together in an unhappy way to produce it.” Such an understanding of evilness necessitates that one

Introduction

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____________________________________________________________ look at both the social and the performative conditions for its development. Evilness is never simply out there to be pointed at in one person or in one action; it is always also here, germinating in our slightest doings and remarks. In other words, the process of identifying and combating evil is a daunting and perhaps even unlikely task, since evil itself, as Simonsen concludes, may consist of a seemingly innocuous combination of “complex carelessness, false idealism, and good intentions led astray.” Simonsen’s conclusion inevitably leads one to remember the socio-political contexts in which the essays that comprise Understanding Evil were composed. The events of September 2001 hover as a kind of spectral muse over this collection. Indeed, taken as a whole, the focus of the various essays plays out in uncanny terms the dominant narrative movements of grieving, loss, powerlessness, and retribution that have shaped so many political and cultural issues around the world since the fall of 2001. At the same time, the interdisciplinary nature of this collection, together with the divergent views of its essays, reminds one that, in the end, an inquiry into “evil” and “wickedness” is at its best when it promotes intelligence and compassion, creativity and cooperation. One final note: I would like to thank the various contributors to this volume, not only for their essays but also for their patience vis-à-vis my many questions during the editing process. Series Editor Robert N Fisher has been especially helpful. Finally, I would like to thank my family for their continued love and support. This volume is dedicated to them. For Jan, Hasi, and Meg; Anni and Ludi Margaret Sönser Breen New London, Connecticut

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Part I Grappling with Evil

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Evil and Literature: Grandeur and Nothingness Neil Forsyth There have been two dominating and competing approaches in our efforts to understand evil, approaches that are reflected in the two words of my title, “grandeur” and “nothingness.” The two traditions are quite different, and yet they intermingle, often to our confusion. I will argue that there is perhaps good reason why we need both, however confusing — and indeed that they need each other. One effort to separate them occurs in the idea of the banality of evil made familiar to us all by Hannah Arendt’s book on Eichmann. She writes about Eichmann’s apparent absence of motive for his crimes under the Third Reich, as follows: When I speak of the banality of evil, I do so only on the strictly factual level, pointing to a phenomenon which stared one in the face at the trial. Eichmann was not Iago and not Macbeth, and nothing would have been further from his mind than to determine with Richard III “to prove a villain.” Except for an extraordinary diligence in looking out for his personal advancement, he had no motives at all. And this diligence in itself was in no way criminal; he certainly would never have murdered his superior in order to inherit his post. He merely, to put the matter colloquially, never realized what he was doing. It was precisely this lack of imagination which enabled him to sit for months on end facing a German Jew who was conducting the police interrogation, pouring out his heart to the man and explaining again and again how it was that he reached only the rank of lieutenant-colonel in the SS, and that it had not been his fault that he was not promoted. ... [Yet] he was not stupid. It was sheer thoughtlessness — something by no means identical with stupidity — that predisposed him to become one of the great criminals of that period.1 This sense that bureaucracy is the rule of nobody, that it makes us all faceless, removes our ability to intervene in the world, and therefore our responsibility, is a modern form of an ancient idea, that evil is simply the absence of something, the failure to act or to understand, in this case a failure of imagination. Mary Midgley uses the Eichmann example in her widely read book Wickedness as part of an argument for the negative theory of evil.

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___________________________________________________________ Like many other philosophers, Colin McGinn for example, she uses chiefly literary examples, from Faust to Jekyll and Hyde, in order to demonstrate that in spite of its pretensions to grandeur evil is really just hollowness, which is what she says Hyde represents for Jekyll, or even pure destructiveness, for which idea she quotes Goethe. The spirit I, that endlessly denies And rightly too; for all that comes to birth Is fit for overthrow, as nothing worth; Wherefore the world were better sterilized; Thus all that’s here as Evil recognized Is a gain to me, and downfall, ruin, sin, The very element I prosper in.2 Yet these examples pull in different directions, towards emptiness or towards active efforts to overthrow the good. What Midgley is really doing in this book, I think, is not so much to argue a philosophical case for evil as negation, but rather to show it to be mean. That, if you like, is the weak form of her argument, and put like that we can see the sense of it — or perhaps even its banality. But Midgley uses the Arendt quotation for what emerges as the strong form of her argument, to develop Socrates’ practical position that evil is simply the lack of proper attention to one’s own good — absence of common sense, as it were. Despite the Socratic earthiness, in the Platonic tradition this argument quickly becomes metaphysical. In Peter Brown’s great biography of Augustine he writes at one point of “the fearsome intensity with which [Augustine] had driven the problem of evil into the heart of Christianity.”3 And the solution, though he wavered and developed it in many dialogues, was in a nutshell that “nothing is by nature evil, and nothing is by nature evil. Both meanings of the phrase apply. Evil is lack of good.”4 Now it has seemed to many that this theory confuses ontology and morality. It depends on the Neoplatonic idea that, since God is good and the utter fullness of being, the rest of creation is somehow less than God, in a descending scale (the “great chain of being”) till eventually we reach non-being, which is evil, the total absence of good. The argument has the virtue of creating a spectrum rather than a simple opposition of good and evil, but it fails to draw any line, to define any point at which evil starts to predominate over good. It has the virtue of making what we call evil necessary to creation, but it has the defect of ignoring the inherent opposition of evil and good (though Jerome hesitated about the theory, since ultimate non-being would be a principle in itself, opposed to God).

Neil Forsyth

3

___________________________________________________________ The problem became especially obvious when the theologians started to introduce the devil into the system. The theory can not account for malice, which all of us sense to be active in many cases, not simply indifferent: the devil is embodied and therefore active evil. In all the cases that interest us, evil is too strong and powerful a force in its own right. Thus in a fantasy novel called The Dark is Rising, by Susan Cooper, this opposing force is imagined not simply as the absence of light but as a kind of fog or cloud that threatens to envelope everything.5 But more usually, the force is embodied in some character and his actions. Indeed most literature of fantasy depends on some active personification of evil — Sauron, Smersh, Spectre, Satan, or in crime fiction, the murderer who is pursued and finally rooted out by the detective. This fantasy narrative, what at the higher levels of literature we call a “myth,” is what underpins Christianity in its apocalyptic origins and informs most of our thinking even now.6 A more serious difficulty with evil as nothingness is with the concept of nothingness — le néant — itself. Indeed nothingness is a common theme in literature. It is true that it can become just the negating of good, as in the Hemingway story, “A Clean Well-Lighted Place.” The hero is a waiter in a Spanish café, who has a monologue at the end of his night shift: Turning off the electric light he continued the conversation with himself . . . what did he fear? It was not fear or dread. It was a nothing that he knew too well. It was all a nothing and a man was nothing too. It was only that and light was all it needed and a certain cleanness and order. Some lived in it and never felt it but he knew it was all nada y pues nada y pues nada. Our nada, who are in nada, nada be thy name thy kingdom nada thy will be nada in nada as it is nada. Give us this nada our daily nada and nada us our nada as we nada our nadas and nada us not into nada but deliver us from nada; pues nada. Hail nothing, full of nothing, nothing is with thee . . . 7 In this sense, nothingness is certainly the absence, even the inversion, of good — the passage obviously depends on the Lord’s Prayer and the Ave Maria — but that nothing, also very obviously, is not evil. Other literary meanings of “nothing” are evident in the seminal Wallace Stevens poem, “The Snow Man.” It ends with the idea of this man of snow as a listener who perceives accurately what the world is like, and

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Evil and Literature: Grandeur and Nothingness

___________________________________________________________ in these lines there is a vital shift between at least two meanings of the word “nothing.” ...the listener, who listens in the snow, And, nothing himself, beholds Nothing that is not there and the nothing that is.8 Nothing there means the absence of prejudice, a necessary preliminary almost in a meditative sense to seeing clearly. At the end, “the nothing” becomes almost a positive entity, all that is left once we strip away the veil of illusion within which we normally live. So there are various reasons to be unhappy with at least the strong form of the negative theory, that evil is nothingness: it mixes up incompatible cases, as the efforts at finding literary examples show; it can be not much more than an elaborate way of saying we don’t like evil, it’s mean; and in the strong form it confuses ontology with morality, leaving no room for an active force of evil. And nothingness in itself is often not equivalent at all to anything what we might call “evil.” What then of the other, competing approach to evil, evil as grandeur? Since the eighteenth century, the criminal has been a figure of central, defining importance for European societies, and popular interest has been intense. In Diderot’s philosophical and novelistic dialogue Rameau’s Nephew (written around 1761) the nephew character remarks: If it is important to be sublime in anything, it is especially so in evil. You spit on a petty thief, but you cannot withhold a sort of respect from a great criminal. His courage bowls you over. His brutality makes you shudder.9 This is the idea that De Quincey picked up in his remarkable essay “On Murder Considered as One of the Fine Arts.” It was extended throughout the nineteenth century, in the burgeoning Romantic fascination with criminality, in Dickens and Dostoyevsky, in works like Mary Shelley’s Frankenstein, or the Modern Prometheus, Stevenson’s Jekyll and Hyde or Wilde’s The Portrait of Dorian Gray. It is the focus of that new genre of fiction, the detective novel, invented in the nineteenth century as a specialized form of the literature of fantasy in which evil is generally cultivated as a special, embodied and active force. But the grandeur of the criminal that we are familiar with here has a much longer history, or at least “the great criminal” is the heir to a more ancient lineage. For the true exploration of the aesthetics of murder, we need, as often in the study of literature, to go back to Shakespeare.

Neil Forsyth

5

___________________________________________________________ What is it that is distinctive about Shakespeare’s representation of villainy, such that Arendt uses his characters as the point of reference to illustrate precisely that grandeur that she did not find in Eichmann? Or, another way to ask the question: What is it that Shakespeare did that others did not or had not yet done? One answer common nowadays is that he was the first to create characters with genuine “interiority” — what became in Harold Bloom’s characteristic exaggeration, “the invention of the human.” The key statement is Hamlet’s claim, in reply to his mother’s complaint about his black clothes, that “I have that within which passeth show/ These but the trappings and the suits of woe.”10 But this is an inadequate account. It ignores what is most strange, and interesting in Shakespeare, the link of this newly invented interiority with evil. Marlowe’s Mephistopheles in Dr Faustus had started things off. He said, in reply to the Faustus’s question about why he is out of Hell: Why this is Hell nor am I out of it, Thinkst thou that I, who saw the face of God, And tasted the eternal joys of Heaven, Am not tormented with ten thousand hells?11 And later, Milton’s Satan on Mt. Niphates’ top has . . .troubled thoughts, and from the bottom stir[s] The hell within him, for within him Hell He brings, and round about him, nor from Hell One step no more than from himself can fly By change of place.12 Soon Satan confirms the narrator’s point in his own words: Which way I flie is Hell; my self am Hell And in the lowest deep a lower deep Still threatning to devour me opens wide, To which the Hell I suffer seems a Heav’n.13 Between these two — Marlowe and Milton — stands Shakespeare. What the main characters in Shakespeare have, and this is especially true for the evil characters, is intelligence and imagination, and they therefore contemplate themselves objectively, as a work of art: they become, as Hegel puts it, “free artists of themselves.”14 This is not merely selfconsciousness, though it is that, nor is it merely division within the self, though it is that too. It is the sense that they make themselves up as they

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___________________________________________________________ go, that they invent the beings they become, and revel in the freedom to do so. And that means partly freedom from restraint. Edmund’s wonderful speech about himself is a fine example. He is free, he says, (that is, not astrologically determined), despite what most fools think. This is the excellent foppery of the world, that, when we are sick in fortune,--often the surfeit of our own behaviour,--we make guilty of our disasters the sun, the moon, and the stars: as if we were villains by necessity; fools by heavenly compulsion; knaves, thieves, and treachers, by spherical predominance; drunkards, liars, and adulterers, by an enforced obedience of planetary influence; and all that we are evil in, by a divine thrusting on: an admirable evasion of whoremaster man, to lay his goatish disposition to the charge of a star! My father compounded with my mother under the dragon's tail; and my nativity was under Ursa Major; so that it follows, I am rough and lecherous. Tut, I should have been that I am, had the maidenliest star in the firmament twinkled on my bastardizing.15 That marvellous conclusion carries much of Shakespeare’s pervasive insistence on this new kind of freedom, and freedom to be evil. At the end of his life, Edmund can suddenly say, as he tries to save Cordelia from his orders, “I pant for life. Some good I mean to do,/ Despite of mine own nature.”16 He is thus, even at the death, free to reinvent himself. In terms that we have learned from Stephen Greenblatt, Edmund shares with Iago an ability both to capitalize on the unexpected and to transform given materials into one’s own scenario, to rewrite the story as his own. In Iago, however, Shakespeare constructed a character whose world gets away from him, whose evil leads him more and more into the necessity of doing further evil, ultimately causing the deaths of Othello and Desdemona. He had said early on “I am not that I am,”17 insisting on his freedom from the role he was playing as Othello’s ensign, but his final words tell us he has lost, that the evil he has created is bigger and stronger than he. At least that’s how I read their enigmatic brevity, that he has gone beyond what any language he knows can describe. OTHELLO: Will you, I pray, demand that demi-devil Why he hath thus ensnar’d my soul and body? IAGO: Demand me nothing, what you know, you know, From this time forth I never will speak word.18

Neil Forsyth

7

___________________________________________________________ Why is it that these characters are all so vivid to us? Part of the answer is simple. They talk to us directly, in soliloquy. It was in Richard III that Shakespeare first explored thoroughly the possibility of soliloquy for the villain, inviting the audience to be complicit in his plot, almost coconspirators. The play begins with that famous soliloquy “Now is the winter of our discontent/ Made glorious summer by this sun of York,”19 in which he announces that because he is misshapen and therefore “I cannot prove a lover/ ... I am determined to prove a villain.”20 He explains quite clearly that he intends to kill his saintly brother Clarence and then he turns back to us when Clarence leaves the stage and says: “Simple plain Clarence, I do love thee so/ That I will shortly send thy soul to heaven,/ If heaven will take the present at our hands.”21 He soon tells us that he plans to marry the lady Anne: “what though I killed her husband and her father?/ The readiest way to make the wench amends/ Is to become her husband and her father.”22 After his extraordinary seduction of this same poor woman, he tells us that “I’ll have her but I shall not keep her long.”23 Thus, even in this early play, the trick is already far advanced of using the soliloquy to make us enjoy the feeling of complicity with the villain; part of the reason in this play, perhaps the main one, is that we simply enjoy his wit, his brilliant energy. But, until it is too late, and his death is imminent, we do not watch Richard hesitate or share his doubts with us. The Shakespearean soliloquy develops to much greater depths over the next ten years, in the later history plays like Richard II, and in Hamlet. I want now to invite you to study one in particular, a difficult one of Macbeth’s. The play is a bit like a gothic horror story, or the examination of a serial killer, which is what we watch Macbeth become. So it is about murder, and the gathering sense of evil that follows it as guilt grows and other murders follow, inevitably it seems, from the first. Now Shakespeare’s tragic heroes all kill people, but the act of killing has different meanings and emphases. Lear kills the soldier who had hanged Cordelia, and if anything we will approve. The killings in Hamlet are more ambiguous, though certainly we learn that the murder which launched the action before the play starts was worthy of vengeance. That revenge is what the action of the play consists in. Othello’s attack on Desdemona is appalling, what we have been dreading for some time, yet we have all seen the degree to which, under Iago’s manipulation, he is by now beside himself. But there is no ambiguity about the murders in Macbeth. He has his reasons, mostly “vaulting ambition,”24 but his murders are, as one critic puts it, “acts of unambiguous evil.”25 Nonetheless the soliloquies draw us into the murderer’s consciousness, and now we are able to experience his doubts and hesitations. The acts he commits repel us, as in Richard III, and in ascending order of horror (Duncan, Banquo, Lady Macduff and her

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___________________________________________________________ children) but now what makes us come reluctantly towards his point of view is the poetic intensity, the uncanny psychological accuracy, of the language. The play envelopes us in a double perspective on the hero, and on that other central figure, his extraordinary wife. How does he come to commit murder? The first act and a half contain, in this sense, an action that takes up the whole of Othello, in that they show how a man, not really a bad man, even in some ways a good man, “brave Macbeth,”26 can be led to commit his crime. His first meeting with the weird sisters (the “witches,” as we commonly call them) awakens his “black and deep desires,”27 and his very thought frightens him. My thoughts, whose murther yet is but fantastical, Shakes so my single state of man, that function Is smother’d in surmise, and nothing is But what is not.28 —that is, action is inhibited by imagination, and indeed only thought has a real existence. That is what he means here by “what is not” — the world of thought as it is affected by “supernatural soliciting.”29 Macbeth clearly vacillates. He has two sides to his nature, and they are in conflict. His wife has told us he is “too full of the milk of human kindness,”30 but he is also the great warrior whose sword “smoked with bloody execution.”31 In the soliloquy which opens Act I, scene viii, we see him arguing with himself. Elsewhere in Macbeth’s own castle, a banquet is taking place to welcome the king, Duncan. But Macbeth sits alone: he has excluded himself from the festivities and he broods. He is trying to convince himself to kill the king. If 'twere done, when tis done, then ‘twere well It were done quickly. If the assassination Could trammel up the consequence, and catch, With his surcease, success; that but this blow Might be the be-all and the end-all — here, But here, upon this bank and shoal of time, We'd jump the life to come. But in these cases We still have judgement here; that we but teach Bloody instructions, which being taught, return To plague the inventor: this even-handed justice Commends the ingredients of our poison'd chalice To our own lips.32 The language is difficult, as I warned you, but the difficulty is part of what it means. Macbeth is trying to sort out his thoughts, he has only language

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___________________________________________________________ to do so, and yet it keeps slipping away from him. His words keep meaning more than he means them to (if you see what I mean), and he keeps turning back in surprise on what he finds himself saying. The sound of the words generates other words (“surcease — success”) and makes frightening meanings: here, death brings success. His syntax fails him,33 and he cannot get to the end of his sentences. That complex if-clause which begins the speech he never really gets out of. He is trying to imagine, not exactly the murder itself, but the aftermath, the time when it has already happened, — or rather he is trying not to imagine it, but to pretend that the act will end all. But his thoughts about the consequences catch up and run ahead of him. He moves from an attempt at practical thinking to a meditation on all future consequences in “the life to come.” As in most complex speeches in Shakespeare, the metaphors breed new metaphors quicker than thought can follow. In 1.vii.6 of the Folio text (the only one we have), bank and shoal reads “bank and schoole,” an acceptable alternative spelling and suggesting not only the shallows of a river (as in the fishing metaphor, the “trammel” and “catch” of line 3) but the judge’s courtroom (bench) and, of course, the schoolroom. These subsidiary concepts come to consciousness in the next lines of the speech, in the sentence “We still have judgment here, that we but teach/Bloody instructions.”34 His meanings have reverberations which return in unwelcome form: from fishing to the school bench to the last judgment. Note that he does not talk directly about killing, but uses roundabout expressions or euphemisms. Those if-clauses, those passive verbs that open the speech, where his own agency is occluded, turn into abstractions like assassination, consequence, judgment, justice, and then take on more tangible form and “return/To plague th’inventor.”35 In fact, he is beginning to wonder already about what we might call “poetic justice,” retribution for evil. He thinks (in terms that recall the final scene of Hamlet) of the poisoned chalice being drunk by “our own lips.”36 In the next section of the soliloquy Macbeth manages better to order his thoughts. He clearly leans towards sparing Duncan, listing reasons. He's here in double trust: First, as I am his kinsman and his subject, Strong both against the deed: then, as his host, Who should against his murderer shut the door, Not bear the knife myself. Besides, this Duncan Hath borne his faculties so meek, hath been So clear in his great office, that his virtues Will plead like angels, trumpet-tongued, against The deep damnation of his taking-off;37

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___________________________________________________________ But once again, as this line of thought continues, Macbeth finds himself again becoming the victim of his metaphors. And pity, like a naked new-born babe, Striding the blast, or Heaven's cherubim, horsed Upon the sightless couriers of the air, Shall blow the horrid deed in every eye, That tears shall drown the wind.38 As Mangan shows, the language of the speech works through “a startling series of transformations: images of innocence and vulnerability become interwoven with images of power and violence,”39 as in those trumpets that proclaim Duncan’s innocence and bring angels up smack against damnation. Now the abstract notion of pity is personified, first as the helpless “naked new-born babe,” but then quickly it strides the blast, whether that blast is the trumpets from the previous line, or the storm, or both (that’s how the imagination works in language). That idea in turn generates Heaven’s cherubim, which combines the earlier angels with the innocence of the babe, the sense of the word which survives in modern English. Quickly though, as the guilt of Macbeth’s thought speaks, these innocent cherubim become the powerful host of angels riding the storm upon the “sightless couriers of the air,” as the winds themselves do battle against Macbeth. Still more rapidly, the sightlessness of the air rebounds on human perceivers, blinding them and bringing tears which in turn drown the wind. The speech keeps the metaphor of the horse (“couriers”) active, as Macbeth in renewed doubt imagines his own situation as lacking any spur but vaulting ambition overleaping itself. Like most of these images, the idea turns quickly against the speaker. Too eagerly the horse leaps the fence and falls on the other side. I have no spur To prick the sides of my intent, but only Vaulting ambition, which o'erleaps itself, And falls on the other —40 But before the leap can be complete, the speech is interrupted — he does not get to “the other side,” and all we have is a kind of nightmare idea of leaping and falling over oneself. The entrance of Lady Macbeth at this point changes everything. The division in Macbeth’s own personality now becomes the subject of an argument between two figures who spell out different tendencies. Has Macbeth now reached the point of saying no to Duncan’s murder in his

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___________________________________________________________ own mind? We don’t know because of the interruption. But immediately in the presence of his wife, he seems to become decisive. “We will proceed no further in this business.”41 Knowing her as we already do, we can reckon that she is unlikely to acquiesce meekly in her husband’s decision. This is Shakespeare’s second great variation on the soliloquy convention. The first was having the villain talk to us as if he were Hamlet, and undecided, working through his thoughts. Now the soliloquy becomes a private dialogue of man and wife as they bring out all the implications together. Freud saw that Macbeth and Lady Macbeth were like two aspects of one character: later she lives out in her unconscious — in the sleepwalking scene — what Macbeth had done in his conscious life. The insight was a good one. In this scene, she becomes one side of Macbeth’s nature, the man of ambition, leaving the other to the vain protest of the innocent. In actor’s terms, she “drives” the scene, which is constructed as a battle of wills. Her first strategy is to attack Macbeth for cowardice when it comes to translating desire into action— as if, once again, he were a kind of Hamlet. His response is reasonable, but revealing, and gives her the lever she needs to persuade him. Prithee, peace! I dare do all that may become a man; Who dares do more is none. 42 She now turns his argument back against him. What beast was't then That made you break this enterprise to me? When you durst do it, then you were a man; And, to be more than what you were, you would Be so much more the man.43 Having established that she knows what it is to be a “real man,” and her husband has forgotten, she then reinforces the idea by denying in famous words her own nature as a woman. I have given suck, and know How tender 'tis to love the babe that milks me: I would, while it was smiling in my face, Have plucked my nipple from his boneless gums And dashed the brains out, had I so sworn as you Have done to this.44

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___________________________________________________________ This is an idea which she has contemplated before, in her own soliloquy, an invocation to the spirits (“Come, you spirits,/That tend on mortal thoughts, unsex me here,/ And fill me from the crown to the toe topfull/Of direst cruelty! . . . Come to my woman’s breasts,/ And take my milk for gall, you murdering ministers.”45 Now she uses it not to demonstrate her own callousness exactly, but to show Macbeth with the tenderest image she can think of how strongly she feels — what she would do in his shoes. It works better than she knows, for she was not present, as we just were, when Macbeth talked about “a naked new-born babe” as an image of Pity. Now his wife with brutal words denies her own capacity for pity with a similar image that is as powerful as it is because it is so precisely and graphically imagined (“while it was smiling in my face,” “boneless gums”). From this point on Macbeth can resist his wife no longer. The appeal to his masculinity, and to their childlessness, has done for him. He wavers, she tells him to be brave and they will not fail. He tells her that she should Bring forth men-children only; For thy undaunted mettle should compose Nothing but males. 46 The compliment is somewhat wry perhaps. She has told him what it is to be a man. He now attributes to her precisely those qualities she defined as manly. The presence of children in the language makes a strong contrast to the evil being contemplated. That is a common theme, essential in Christianity but especially important in the post-Romantic world, of “innocent babe” and evil. Yet it is also clear from these words that, in Macbeth, the couple’s childlessness is an important fact of their lives. It seems that there has been one child at least who died in infancy. (In Penny Woolford’s TV version, Macbeth on the Estate, the loss of the child is emphasized by shots of the baby’s room that the couple have kept as it was, with its cot, furry animals, and music boxes.) Childlessness reverberates in the play, as Macbeth tries to kill first Banquo’s child, Fleance, and then Macduff’s children. Malcolm points out that Macbeth has no children himself, just at the moment in fact when Macduff learns that his own children have been murdered: “All my pretty ones?”47 Malcolm does what many a man (at least an old-fashioned man) would do in these circumstances: he tells Macduff to “Dispute [the news] like a man” (IV.iii.219), that is, don’t cry, or don’t dwell on it. Macduff replies,

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___________________________________________________________ “I shall do so; /But I must also feel it as a man.”48 Macduff’s words make a fitting response to the scene between Macbeth and his wife. Their relationship is clearly defined by this scene, even though it changes as the play developes and Macbeth takes the responsibility himself for the subsequent crimes. In one sense, of course, the figure of Lady Macbeth picks up centuries of misogyny and focuses it on this terrifying woman. In the sleepwalking scene, later, she regains some of our sympathy as we watch her in the helpless throes of guilt, desperately trying to wash her hands. But here she is as strong and unscrupulous a woman, for the moment at least, as we are ever likely to meet in literature — a real Queen of the Night. She is the perfect embodiment of that solution to the mystery of evil that recurs from time immemorial: it was the woman’s fault. She gave me the apple and I did eat. This scene though is more subtle in its psychological realism. Macbeth is insecure, as we saw. And not only about his masculinity. He is one of those people who needs to be talked into something. Indeed, this kind of person often reacts in the opposite way at first, so that at first he says no, “we’ll proceed no further in this business.” In fact, though, he is waiting for the reply, and when it comes he quickly crumbles. As with the witches, he finds her words activating his own black and deep desires. He sets things up so that he has to be talked into the deed he partly wants to do anyway. To overcome his indecision. Clearly the witches, though supernatural, and Lady Macbeth play a similar role. They objectify his desires. In Macbeth’s final meditation on his acts, though, he recurs to a word that he used before, and this wonderful and famous speech will take us back, perhaps with renewed respect, to the philosopher’s theory I was questioning earlier. He had said before that, so disturbed is the time, “nothing is/But what is not.”49 In the final soliloquy-like speech, he pushes his own thinking further than anyone else has, or could. His wife has just died, he’s been told, and he responds, you recall: She should have died hereafter. There would have been a time for such a word. Tomorrow and tomorrow and tomorrow Creeps in this petty pace from day to day To the last syllable of recorded time And all our yesterdays have lighted fools The way to dusty death. Out, out, brief candle! Life’s but a walking shadow, a poor player Who struts and frets his hour upon the stage And then is heard no more. It is a tale

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___________________________________________________________ Told by an idiot, full of sound and fury Signifying nothing.50 So at least in the mind of this greatest of villains, nothingness is the point to which his life reduces itself, here at the end. In that sense, then, the philosophers were right. Evil is nothing — or at least it leads to nothingness. Everything disappears into language, and the language is without meaning. We recall that he had used “nothing” earlier as a way of describing thought, as opposed to tangible realities like his sword. Now that is all that is left him, a tale told by an idiot and signifying nothing. So the key to the power of these Shakespearean soliloquies is finally this alignment of thought, our interior selves, both with nothingness and with evil. And in a peculiar way the nothingness, put like that, becomes grand. Macbeth is the ancestor of those great criminals admired by the Romantics, and by many since. Indeed you will probably have noticed, in my opening quotation from Hannah Arendt, the need that reveals itself, even there in the context of a contrast with Macbeth, to speak of Eichmann as a great criminal. But what is grand about Macbeth, finally, is not so much his acts as his thinking. He sees with great clarity and courage the nothingness that his life has become. To understand it, even to begin to understand it, in so far as Macbeth is an instance of evil, we need both the idea of grandeur and of nothingness. Among philosophers who have thought about these equations, perhaps the most profound discussion was that inaugurated by Kierkegaard, who as usual saw the liberating potential within the terrifying doctrine of original sin. (He was as he saw it extending a basic Lutheran doctrine about sin). It was Adam’s sudden feeling of dread, Kierkegaard argued in The Concept of Dread, that made him aware of his full humanity. Before the decision to eat the apple, there opened in him a yawning abyss: he saw the possibility of his own freedom in committing the act, even before he did it. What opened for him was essentially the abyss of nothingness, since as yet there was nothing for him to think of except the negation: thou shalt not. This nothingness became the recognition of freedom for Kierkegaard, both dreadful and fascinating, and irresistible once he had experienced it. Heidegger developed this insight into the notion that Nothingness is the presence within our own being which as it were organizes everything and gives it structure (though he would not have used that word, I think, not being very structural in his thinking). Nothingness is the “inner quaking that goes on beneath the calm surface of our preoccupation with things.”51 Thus the anxiety that is the experience of being in that particular existential tradition is always connected to the experience of negation, of nothingness, of sin. In anxiety

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___________________________________________________________ we both are and are not at the same time, and this is our “dread,” a much grander idea than “fear.” And the word “Sin,” it turns out, is etymologically related to the complex of words that mean ‘being’ in Western languages, most obvious in the German word “Sein.” What Shakespeare inaugurated was a way of moving this link of sin, freedom, nothingness away from the religious to the secular world. That inner being of Macbeth is so fully explored because it is on a historical border: it uses the vocabulary of religion, damnation, judgment, angels, but as a way to explore the ruthlessness of secular ambition, its origins and its aftermath. This prepared the way for Milton to pick up all this newly invented language of interiority and return it to the Satan whose most moving words are “My self am Hell.”

1

Notes

Arendt, 1963, 287-9. 2 Goethe, 1949, 73. 3 Brown, 1967, 397. 4 Russell, 1981, 199. 5 The second in a children’s fantasy sequence that began with Over Sea, Over Stone. 6 Forsyth, 1990. 7 Hemingway, 1964, 394. 8 Stevens, 1978, 5. 9 Black, 1991, 36. 10 Shakespeare, Hamlet, 1982, I.ii.85-6. 11 Marlowe, 1993, 1.3. 78-81. 12 Milton, 1998, IV. 19-23. 13 Milton, IV. 75-8. 14 Bloom, 1994; cf Greenblatt 15 Shakespeare, 1993, King Lear, I.ii.115-130. 16 King Lear, V.iii.242-43. 17 Shakespeare, 1984, Othello, I.i.65. 18 Othello, V.ii.298-301. 19 Shakespeare, 1968, Richard III, I.i.1-2 20 Richard III, I.i.28-9. 21 Richard III. I.i. 118-9. 22 Richard III. I.i.154-6. 23 Richard III. I.ii.232. 24 Shakespeare, 1990, Macbeth, I.vii.27. 25 Mangan, 1991, 189. 26 Macbeth I.ii.16. 27 Macbeth I.iv.51.

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___________________________________________________________ 28

Macbeth I.iii.140-143. Macbeth I.iii.131. 30 Macbeth I.v.16 31 Macbeth I.ii.18. 32 Macbeth I.vii.1-12 33 as Mangan shows in an excellent analysis of this speech, pp. 193-97, to which my own is indebted. 34 Macbeth I.vii.8-9. 35 Macbeth I.vii.9-10. 36 Macbeth I.vii.12. 37 Macbeth I.vii.12-20. 38 Macbeth I.vii.21-5. 39 Mangan, 195. 40 Macbeth I.vii.25-28. 41 Macbeth I.vii.31. 42 Macbeth I.vii.46-48. 43 Macbeth I.vii.48-52. 44 Macbeth I.vii.55-60. 45 Macbeth I.v.39-47. 46 Macbeth I.vii.73-5. 47 Macbeth IV.iii.216. 48 Macbeth IV.iii.220-1. 49 Macbeth I.iii.142-3. 50 Macbeth V.v.17-28. 51 Barrett, 1962, 226. 29

References Arendt, H. (1963), Eichmann in Jerusalem. rev. ed. Penguin: Harmondsworth. Barrett, W. (1962), Irrational man. New York: Doubleday Anchor. Black, J. (1991). The aesthetics of murder: a study in Romantic literature and contemporary culture. Baltimore: Johns Hopkins University Press. Bloom, H. The Western canon. New York: Harcourt, Brace. ──. Shakespeare: the invention of the human. New York: Riverhead Books. Brown, P. Augustine of Hippo. Berkeley and Los Angeles: University of California Press. Cooper, S. (1973), The dark is rising. London: Chatto and Windus. De Quincey. T. (2000, 1827), ‘Murder considered as one of the fine arts’, [Blackwell’s magazine] in: The collected Works of Thomas De Quincey,G. Lindop (ed.) Vol. 6. London: Pickering Chatto.

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___________________________________________________________ Diderot, (1966/1761), Rameau’s nephew. Harmondsworth: Penguin, 1966. Forsyth, N. (1990), The old enemy: Satan and the combat myth. Princeton: Princeton University Press. Goethe. Faust. (1949), P. Wayne (trans.) Harmondsworth: Penguin. Greenblatt, S. (1980), Renaissance self-fashioning. Chicago: University of Chicago Press. Hegel, G.W.F. (1999), The philosophy of fine art. F.P.B. Osmaston (trans.) New York: Thoemmes Press. Heidegger, M. (1962), Being and time. New York: Harper and Row. Hemingway, E. (1964). ‘A clean well-lighted place’, in: Winner take nothing, rptd. in: The essential Hemingway. Harmondsworth: Penguin, 391-95. Kierkegaard, S. (1968), The concept of dread. Princeton: Princeton University Press. Mangan, M. (1991), A preface to Shakespeare’s tragedies. London: Longman. Marlowe, C. (1993), Dr Faustus. Revels Plays. D. Bevington and E. Rasmussen (ed.) Manchester University Press. McGinn, C. (1997), Ethics, evil and fiction. Oxford: Clarendon Press. Milton, J. Paradise Lost. (1998), J.Leonard (ed.) Harmondsworth: Penguin. Midgeley, M. (2001/1984), Wickedness: a philosophical essay. London: Routledge. Pocock, D. (1985), ‘Unruly evil’, in: D. Parkin (ed.) The anthropology of evil. Oxford: Blackwell. Russell, J.B. (1981), Satan: the early Christian tradition. Ithaca, NY: Cornell University Press. Shakespeare, W. (1982), Hamlet. H. Jenkins (ed.) London: Methuen (Arden). ── (1990), Macbeth. Oxford University Press ── (1984), Othello. N. Sanders (ed.) Cambridge: Cambridge University Press. ── (1968), Richard III. E.A.J. Honigmann (ed.) Harmondsworth: Penguin ── (1993), King Lear. R. Weis (ed.) London: Longman, 1993. Stevens, W. (1978), ‘The snow man’, in: Collected poems. New York: Knopf. Stevenson, R.L. (1956), The strange case of Dr Jekyll and Mr Hyde. London: Nelson.

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Reframing Evil in Evolutionary and Game Theoretic Terms Theodore P. Seto Calling a person or act “evil” is an act of moral rejection. We thereby place the person or act beyond the bounds of the even arguably defensible. But what is “evil”? Is it merely a linguistic placeholder for our subjective moral response? Or can it be given a more concrete meaning? I am in the process of developing a theory of normative obligation based on evolutionary and game theory.1 This chapter will preview relevant portions of my theory. It will then apply that theory to three problems. First, it will attempt to define evil. Second, it will address the problem of original sin – in secular terms, why it is that we sometimes find it hard to be good. Third, it will explore why evil is often associated with a desire to dominate. “Evil,” I conclude, can be defined both concretely and usefully. 1.

An Evolutionary Theory of Motivation and Normative Obligation The most serious problem with existing moral theory is that it fails adequately to answer the following question: Why are we motivated to be good? The moral theorist will argue passionately that goodness is X – adherence to a categorical imperative, for example, or maximization of total utility – but will offer no plausible reason why real human beings might actually care about X. Most simply assume that human beings are inherently motivated to care about goodness, however defined. This is profoundly unsatisfactory. We know a lot about the origins of motivation, at least in broad outline. Evolutionary theory tells us that motivations, like other attributes, generally evolve because they are adaptive. This means that individuals with adaptive motivations are more likely to survive and reproduce than individuals without such motivations. And this, in turn, means that any definition of goodness not tied in some way to adaptivity is implausible. A simple thought experiment demonstrates why this is so. Assume a population consisting of two types of individuals, good and bad – that is, people motivated to be “good” (however we define goodness), and people not so motivated. Assume further that good parents are more likely to produce good children and bad parents more likely to produce bad – in other words, that behaviours are to some extent transmissible. (For reasons beyond the scope of this chapter, the assumption of parentchild transmission is not necessary. It does, however, simplify my exposition.) Finally and most importantly, assume that being good is, in net effect, not adaptive at the individual level. In other words, assume that being good involves some net sacrifice to long-term individual prospects

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____________________________________________________________ for survival and reproduction. Over time, what will happen is that good people will survive and reproduce at a lower rate than bad people. They will not necessarily die out altogether, but they will become a smaller and smaller percentage of the population – eventually a percentage small enough that the average person will no longer care what goodness is or why good people are motivated to be good. And this is so simply because of the mathematics of probability. I am not invoking here an area of science that is controversial or uncertain. I am invoking basic math. But we know that the average person does care about goodness. It follows that being good must be adaptive. Indeed, it follows that goodness should be amenable to definition as a particular kind of adaptive behaviour. This explains why we are motivated to be good: we are so motivated because good people tend, on average, to survive and reproduce more successfully than bad. To ignore this dynamic – to conjure moral theory out of philosophical ether and then simply assert that we should care about the result – is no more likely to produce enduring truth than fourteenth- century alchemy. The next question, of course, is “Why is goodness adaptive?” The answer, I suggest, can be found in the theory of repeat games. This branch of mathematics has become quite elaborate in recent years. I will discuss it in only the simplest terms. In particular, I want to focus on a game known as the repeated Prisoner’s Dilemma. Our game involves two players, A and B. Each can make only one decision: she can cooperate (C) or defect (D). The payoffs to each player depend on the decisions of both. The following is an example:

Player A

C D

Player B C 3,3 4,1

D 1,4 2,2

In the foregoing table, each pair of numbers represents the payoffs to the players, the first to A, the second to B. For example, if both cooperate (Row C and Column C), then each gets a payoff of 3. If A cooperates but B defects (Row C and Column D), then A only gets a payoff of 1, while B is rewarded with a payoff of 4. If they both defect (Row D and Column D), then each gets a payoff of 2. Note A’s incentives. If she believes that B is going to cooperate, then A should defect, because then she will get a payoff of 4 rather than 3. If she believes that B is going to defect, then A should still defect, because then she will get a payoff of 2 rather than 1. In fact, in a single play of this game, it is always in A’s self-interest to defect. And because the table of payoffs is symmetric, the same is true of B’s incentives as well. Both

Theodore P. Seto 21 ____________________________________________________________ should defect. But if both defect, each will receive a payoff of 2, whereas if both cooperate, each will receive a payoff of 3. Hence the dilemma. The dynamics of the game change if the players know that they are going to be playing more than once. Now if A defects, she knows that B may respond by himself defecting in the future, as a result of which each player will earn a progression of 2’s rather than 3’s. What strategy for playing the repeated game is most successful? It turns out that the most successful strategies are variations of a strategy known, perhaps unfortunately, as “Tit for Tat.”2 Tit for Tat can be viewed as consisting of three parts: (1) begin by cooperating (“Do unto others as you would have them do unto you”), (2) if the other player defects, punish immediately (“An eye for an eye, a tooth for a tooth”), and (3) if the other player returns to cooperation, immediately return to cooperation yourself (in moral terms, forgive the other player). In other words, three of the world’s most fundamental moral principles – the Golden Rule, punishment, and forgiveness – appear to be part of the most successful solutions to this purely mathematical game. My moral theory is based on the assumption that this is not a coincidence. Individuals who appropriately cooperate, punish, and forgive tend to survive and reproduce more successfully than those who do not. As a result, the world has come to be dominated by individuals who, to some degree or another, have internalized these three principles. Morality, in short, responds to an underlying mathematics. Life, of course, is far more complex than any mathematical game. Even the most sophisticated games under study today are but crude approximations of reality. We are not yet able adequately to specify either the relevant game or its optimal solution. Nevertheless, my theory assumes that such a game exists. I label its optimal solution the “principle of reciprocity”, and I assume that Tit for Tat, the various formulations of the Golden Rule,3 Kant’s categorical imperative,4 John Rawls’ choice from behind the veil,5 and the classic parental question “How would you feel if Mary did that to you?” are all approximations of this principle. Goodness is simply adherence to the principle of reciprocity – no more, no less. Each culture implements this principle in a set of rules which members are obliged to observe vis-à-vis others of the same culture. I call such rules the culture’s “ethos of reciprocity.” The set of individuals thus bound and protected constitutes the “We” of that ethos. Those not so bound and protected are “They” or the “Others.” History is in part the story of the expansion of our most general “We” – from the tribe to the city-state to the nation to humanity as a whole. This expansion is predicted by game theory; to the extent that moral actors are excluded from our “We,” our relations with those actors are likely to be non-optimal because they will not be based on the principle of reciprocity. A Hobbesian international order is no more functional than a Hobbesian tribe. Over

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____________________________________________________________ time, those who internalize behaviours consistent with the principle of reciprocity vis-à-vis Others, bringing those Others within their “We,” are more likely to survive and reproduce than those who do not. The fact that goodness is adaptive, of course, explains why we might be motivated to be good, but not how. Two common explanations are inadequate. If motivations evolve because they are adaptive, one might be tempted to hypothesize a genetic basis for goodness, what some have called an “altruism gene.” Much work remains to be done in this area; preliminarily, however, it seems unlikely that genes can explain all the complexities of moral decision-making. Goodness, we have seen, has at least three parts – being cooperative, punishing, and forgiving. To be fully effective, an altruism gene would have to code for all three. A gene that merely motivated us to be nice would disable, rather than enable, goodness when punishment is the optimal path. A subpopulation unable to fight back when taken advantage of would quickly be washed out of the gene pool. This is not to say that genes are irrelevant. We are genetically motivated to bond with others and to become angry when others treat us poorly; an entire region of our brain appears to be devoted to the specialized task of detecting cheating on the social contract.6 I merely suggest that genes, by themselves, are not enough. I also reject reason as a sufficient explanation for goodness. The adaptivity of many learned behaviours – sharing, for example – only becomes obvious with extensive experience, sometimes the experience of many generations. Were we motivated solely by reason and self-interest, individuals might never undertake such behaviours or do so only after painfully inventing the wheel again and again. Indeed, if reason were a sufficient explanation, good parenting would be irrelevant, and institutions such as religion, devoted to the transmission of codes of virtue, would be unnecessary. Each child, upon reaching the age of reason, would deduce the same moral code – an explanation wholly inconsistent with our experiences as parents and teachers. We have a name for individuals motivated solely by reason and self-interest: we call them “sociopaths.” But if not by genes or reason, how are we motivated to goodness? My answer is that goodness should be viewed primarily as a set of internalized learned behaviours, transmitted from generation to generation. Although we do not fully understand the mechanics of such transmission, we do know that each generation comes to feel a compulsion to perform the transmitted behaviours and to feel discomfort – guilt or shame – when it does not. In my theory, learned behaviours evolve. That is to say, over time the population of learned behaviours becomes better adapted to the environmental conditions it faces. For the most part, this means that learned behaviours evolve to make individual humans better adapted to their environment as well. Most importantly, we learn more

Theodore P. Seto 23 ____________________________________________________________ each generation about what it means to be good, and we transmit those lessons, new and old, to our children, who hopefully internalize them and act on them regardless of reason and apparent self-interest. The moral theory I propose is thus both consequentialist and deontological. It is consequentialist in its ultimate explanation. Behaviours are good because of their consequences – they help us to survive and reproduce. Operationally, however, my theory is almost completely deontological: it requires that we internalize rules and, for the most part, follow them regardless of their short-term expected consequences. 2.

Defining “Evil” With this introduction, I turn to the definition of “evil.” If goodness is adherence to the principle of reciprocity, one might be tempted to define evil simply as a failure to adhere to that principle. Without further elaboration, however, such a definition would gloss over at least three important problems. First, the principle of reciprocity is not just the Golden Rule. It also requires punishment and forgiveness. Most of us find it intuitively easy to classify violations of the Golden Rule as “evil.” Perhaps less obviously, my theory suggests that a failure to forgive once another has returned to cooperation may be equally evil. Forgiveness of others, not merely personal adherence to the paths of righteousness, appears to be a necessary part of the most successful solutions to the repeated Prisoner’s Dilemma. More difficult is the issue of punishment. Some have characterized punishment as itself an evil, albeit necessary. My theory suggests, to the contrary, that failure to punish may be just as evil as failure to be good oneself. Is this so? Unfortunately, punishment is poorly modelled in current repeat game simulations. Real human beings do not merely cooperate or defect; we engage in an almost infinite range of social behaviours. Punishment may range from a mere withholding of approval to the most extreme fantasies of the vengeful. As a matter of game theory, all that is needed is an environment that decreases the likelihood that “bad” learned behaviours will survive and reproduce and increases the likelihood that “good” learned behaviours will do so. Articulating this goal is easy. Achieving it in the real world is not. The problem is further complicated by the fact that modern society, for the most part, transfers the punitive role to the state. This transfer solves a problem inherent in repeat games – that cooperative solutions are often not the only evolutionarily stable ones. When an individual player assumes the punitive role, it may be ambiguous whether his nastiness is punishment (and therefore good) or mere defection (and therefore bad). This ambiguity may lead the other player to punish in turn.

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____________________________________________________________ If so, the result may not be long-term cooperation; it may instead be a stable cycle of mutual defection – in other words, a blood feud. Law solves this problem by removing the punitive role to a neutral third party. Punishment by a third party pursuant to neutral rules is much less likely to be misconstrued. Obviously, to the extent that law is perceived as biased, it will be less effective at solving this problem. The most effective legal order, therefore, is one that treats all players as equal under neutral rules. The rule of law and equality under law are thus both solutions to a game theoretic problem. Individually-administered punishment – vigilante justice – may actually undermine these solutions, at least with respect to infractions subject to legal correction. It may be helpful, perhaps even necessary, for individuals to disapprove of the defections of others. To permit such individuals to retaliate further, however, risks development of a state of blood feud. In a society of laws, it may be more adaptive for individuals to turn the other cheek. This is not because punishment is itself morally wrong; indeed, for the state to turn the other cheek – to fail to perform its punitive role – would be maladaptive and therefore wrong. It is rather because individual performance of a major punitive role often creates more problems than it solves. Failure to adhere to the Golden Rule and failure to forgive are both individual evils; in a society of laws, failure to punish (beyond the expression of disapproval) may not be. A second problem with defining evil simply as a failure to adhere to the principle of reciprocity is that in my theory goodness is merely a subset of adaptivity. There may be situations in which adherence to the principle of reciprocity is itself maladaptive. If so, in such situations violation of the principle should not be condemned, and therefore should not be labelled “evil.” For example, although killing another is generally a violation of the principle of reciprocity, allowing oneself to be killed is not adaptive. Therefore, in both morality and law, we recognize self-defense as an exception to the wrong of killing another. Perhaps an even more important example is the right to free expression of ideas. We might try to frame that right in terms of the principle of reciprocity: I allow you to say what you want because I want the right to say what I want. The problem is that the principle of reciprocity can also be used to justify censorship: I should not say things that will make you uncomfortable because I do not want you to say things that will make me uncomfortable. The right to free expression is more persuasively justified as necessary to facilitate the rapid evolution of learned behaviours. If we can criticize, propose, and debate, our learned behaviours will likely evolve more rapidly. The ability to adapt rapidly is itself extremely adaptive. Where free expression conflicts with the

Theodore P. Seto 25 ____________________________________________________________ principle of reciprocity, it is often adaptive – and therefore normatively right – to resolve that conflict in favour of free expression. By suggesting that adaptivity sometimes overrides the principle of reciprocity, I do not mean to suggest that we are free to disregard received moral codes whenever it may appear adaptive to do so. To the contrary, those codes themselves represent society’s accumulated wisdom about adaptivity; it is therefore essential that most actors behave as if bound most of the time. My position rather is that the codes themselves sometimes include deviations from an unalloyed application of the principle of reciprocity in situations where breach is more adaptive than adherence. This is particularly likely to be true where survival and reproduction are directly at issue. Hence perhaps the saying: “All’s fair in love and war.” A man who falls in love with and marries his best friend’s wife may violate the principle of reciprocity; we do not, however, necessarily label his actions “evil.” Similarly, many acts that would be reprehensible in other contexts are condoned in times of war. It follows that the concept of evil must be limited to breaches of the principle of reciprocity that are themselves maladaptive. Unfortunately, adaptivity is extremely difficult to ascertain. If a society’s moral codes represent its accumulated wisdom about adaptivity, this limitation might even be read to suggest that moral codes cannot themselves be evil. Consider, for example, the moral codes of the nineteenth-century American South, which treated people of African ancestry as subhuman. One might argue that such codes were adaptive to white Americans and therefore, under my definition, not evil. To this line of reasoning I offer two responses. First, I view all existing learned behaviours as in the midst of evolution, not as evolution’s final product. Just as we have not yet invented the perfect mousetrap, so we have not yet achieved the perfect moral code. Moral codes can embody and reflect states of stable defection; they do not automatically result in cooperation. More simply, the fact that a moral code exists does not necessarily make it right. Second, arguments of momentary advantage do not generally justify breaches of the principle of reciprocity – no more so for groups who create their own moral codes than for individuals. When adaptivity trumps reciprocity, it must do so pursuant to neutral rules applicable equally to all. Otherwise, it is likely to provoke defection in return. A third problem with defining evil simply as a failure to adhere to the principle of reciprocity is that such a definition ignores the purpose of the concept itself. That purpose is to influence intentional behaviour. Labelling an act “evil” may deter the listener from performing the act. It may justify retribution when such an act occurs. It may communicate or reinforce values with respect to such acts. To be useful for any of these purposes, however, “evil” must be limited to acts that involve choice.

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____________________________________________________________ Labelling something evil will not deter if choice does not exist. In a sophisticated moral world, retribution is generally justified only if the wrong was not accidental. The communication of values, similarly, is intended to influence future deliberate action. To make the concept of evil useful for these purposes, therefore, we must limit its scope to actions undertaken with some degree of intentionality – what Anglo-American criminal law would call mens rea. A mother who intentionally puts a knife into her child’s heart may be “evil”; a mother who is startled by an unexpected thunderclap and drops her child, thereby killing it, is not, even though the child is equally dead. The degree of intentionality required generally depends on the seriousness of the resulting breach of the principle of reciprocity. We may view a nasty comment as “evil” only if the resulting hurt was intended. If an act results in death, by contrast, we often label the act “evil” even if the actor is merely culpably inattentive to the possibility that death might result – as, for example, where a tobacco company persuades itself that its products are harmless. Defining with greater specificity the degree of intentionality required is beyond the scope of this chapter. For current purposes, it is enough to say that to perform its role in acts of moral rejection properly, “evil” must be limited to acts involving some degree of intentionality. Finally, we normally reserve the term “evil” for serious breaches of our norms. Taking into account all of the foregoing caveats, we can therefore define “evil” as a serious intentional maladaptive breach of the principle of reciprocity other than an individual failure to punish. In short, “evil” is not merely a linguistic placeholder for a particular type of moral response; it is amenable to concrete definition. But can an evolutionary and game theoretic approach to defining evil aid in understanding the problem? The remaining two sections of this chapter assert that it can. 3.

Original Sin (or Why It Is Sometimes Hard To Be Good) At first blush, evolutionary theory might seem to lead to the conclusion that being good should be easy. If individuals who do not adhere to the principle of reciprocity are less likely to survive and reproduce, we might expect that humans would have evolved so as to be motivated unambiguously to adhere to that principle – that is, to be good. By this logic, it should be just as easy to be good when faced with moral choice as it is easy to drink water when faced with thirst. Humans not so motivated should be washed out of the gene pool. Temptation simply should not exist. But, of course, we know that it does. Why? How can evolutionary theory account for moral difficulty? The answer is that the evolutionary pressure to adhere to the principle of reciprocity is not the only evolutionary pressure we face. To

Theodore P. Seto 27 ____________________________________________________________ explore this issue in all of the contexts in which it arises is beyond the scope of a single book chapter. Here, I will focus on one narrow but important part of human behaviour – mating and childrearing among sexually active heterosexuals. In most of its implementations, the principle of reciprocity requires marital fidelity: “I will be faithful to you and help raise any resulting children. In return, I expect you to be faithful to me and similarly participate in the support, rearing, and protection of our children.” Adherence to the principle is likely to result in more successful childrearing and therefore in more successful reproduction of the parents’ genes and behaviours. Yet childbirth is not limited to mated partners and even mated partners sometimes find adherence difficult. Why? Because the motivational structures that determine our mating and childrearing behaviours have evolved in response to competing evolutionary pressures – not merely in response to the principle of reciprocity. I call such competing evolutionary pressures “mandates.” Each species, in turn, resolves conflicts among the various mandates it faces in different ways. The first and most fundamental is the mandate of reproduction – the direct evolutionary pressure to survive and reproduce. A species that fails to respond to this mandate will most assuredly become extinct. In humans, as in other species, we should therefore expect to find many both genetically-triggered and learned behaviours responsive to this mandate. And we do. We are, for example, genetically motivated to seek pleasure and avoid pain. Sexual intercourse provides us pleasure; as a result we are motivated to engage in the acts necessary to produce offspring. But other, less obvious motivations are responsive to the mandate of reproduction as well. Human males, for example, produce effectively infinite amounts of sperm; they can increase the likelihood they will reproduce by spreading that sperm as widely as possible. Not surprisingly, we find that human males are often motivated to do so – a pattern of motivation and behaviour known as “polygyny” that conflicts directly with the obligation of marital fidelity. For the same reason, human males tend to be sexually stimulated by simple, fairly indiscriminate visual cues. Human females, by contrast, are biologically limited in their number of offspring. They can increase the likelihood of successful reproduction by being more selective in their mating. During the infertile portions of their cycle, they tend to be attracted to men who would make good husbands and childcare providers. Studies show that on days of fertility they tend, by contrast, to be motivated to mate with more virile men – again, often in direct conflict with the obligation of marital fidelity. Many important attributes of multicellular species cannot be explained solely by reference to the mandate of reproduction. One of the most important such attributes is sex – reproduction through the mixing of genetic material. Perhaps counterintuitively, sex is not responsive to the

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____________________________________________________________ mandate of reproduction. Why? The most efficient way for an organism to reproduce is by cloning – the production of genetically identical offspring. Diploidal reproduction, in which each of two parents contributes half of a child’s genetic material, is only half as likely to reproduce a given parent’s genes. Indeed, diploidal reproduction ensures that none of us will ever actually perfectly reproduce; human children are always genetically different from both their parents. Thus sex represents a serious deviation from the mandate of reproduction. Sex responds instead to a different mandate, which I call the mandate of genetic diversity. Evolution requires imperfect reproduction. In simple organisms with extremely large populations, such as bacteria, genetic mutation supplies the necessary imperfection. In species with more limited populations, including most multicellular organisms, mutation does not occur rapidly enough to permit evolution to operate at high enough speeds to allow species to adapt effectively to changing environmental conditions (in particular, to quickly evolving viruses, bacteria, and other parasites). Here sex – the production of offspring through the mixing of genetic material – comes to the rescue. Populations of creatures that reproduce sexually will be far more genetically diverse than populations of similar size that reproduce without such genetic mixing. When environmental conditions change, it is more likely that some portion of the sexually reproducing population will already carry the genes necessary to deal with that change. In other words, sex allows us to evolve to meet changing conditions more quickly. If genetic diversity is adaptive, we ought to observe the mandate of genetic diversity operating in our choice of mates. And we do. Despite sex, we could reproduce more perfectly, and thereby respond more effectively to the mandate of reproduction, by mating with our closest genetic kin – in other words, through incest. The mandate of genetic diversity, however, predicts the evolution of inhibitions to incest; and, indeed, we all carry such inhibitions, both genetic and learned. The mandate of genetic diversity also predicts that our mating choices will be somewhat random; and, indeed, we are often motivated to mate with unexpected, sometimes even objectively unsuitable, partners – again often in conflict with our marital obligations. As Pascal observed, “Le coeur a ses raisons, que la raison ne connaît point.” (“The heart has its reasons, of which reason knows not.”) The mandate of genetic diversity derives its power from the fact that the ability to evolve quickly is itself adaptive. But learned behaviours can adapt to changing conditions far more quickly than behaviours that are directly genetically triggered. It should therefore be an evolutionarily successful strategy to make major sacrifices to obtain the ability to carry and transmit learned behaviours. And we humans do. Unlike the young of

Theodore P. Seto 29 ____________________________________________________________ almost every other species, our young are born helpless. They cannot walk or feed themselves. Their heads are so large that they often kill their mothers in childbirth. They require over a decade to reach adulthood, in the meantime consuming extraordinary amounts of parental energy. From the perspective of simple survival and reproduction, human young make no sense whatever. Their characteristics respond instead to a third mandate: the mandate of learned behaviour, which rewards departures from the first two mandates to make learned behaviours possible. This third mandate again has profound effects on our mating patterns, this time not necessarily in conflict with our marital obligations. It is no longer in the male’s interest simply to impregnate and leave. Helpless children protected and raised by two parents are more likely to survive and reproduce. The male’s participation in childrearing also allows him to transmit his learned behaviours, not merely his genes, to his offspring. It is also no longer in the female’s interest simply to seek the sperm of the most genetically attractive male. She now needs a mate who will stick around to help raise her children; she may also be more concerned about the learned behaviours he will transmit to those children. The evolutionary advantage of adhering to the principle of reciprocity is thus but one of many mandates, the mandate of reciprocity. In most cultures, reciprocity requires stable and monogamous matings. When we internalize our cultures’ moral codes, we learn to feel discomfort if we breach the rules requiring such matings. The fact that we may ultimately respect those rules – that we give primacy to the fourth mandate – however, does not mean that doing so will necessarily be easy. Our genetic heritage retains the influence of the other three mandates. Men still feel the urge to spread their seed. We still become attracted to others when we shouldn’t. No matter how effectively we internalize learned behaviours that implement the principle of reciprocity, we will always face temptation. In my theory, original sin – the difficulty of being good – derives from such conflicts among the mandates. I have told the story of original sin in the marital context. Similar stories can be told in other contexts. We are motivated to evil because our motivational structures respond to more than just the principle of reciprocity. The very act of labelling something “evil” is an attempt to reinforce our internalized learned behaviours – responsive to the mandate of reciprocity – against conflicting motivations responsive to other mandates. 4.

Evil and the Desire to Dominate One further such story explains why we often associate evil with a desire to dominate. Tolkien’s Sauron7 does not merely abhor the good; he insists on controlling the world. Satan is often similarly portrayed. As I have defined evil, of course, it should be possible to be thoroughly evil

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____________________________________________________________ without controlling anything; it should be equally possible to have great power without being evil. Indeed, religion commonly posits a God who is both omnipotent and good. Why the association between evil and power? And why, more specifically, is this association made in some circumstances but not others? At least two factors, both responsive to the mandate of reproduction, contribute to the human desire to dominate. First, there is the simple desire to get one’s way. If we can tell others what to do, we are more likely to be able to survive and reproduce. Not surprisingly, this desire is strong in humans, regardless of gender, from infancy on. A second component of the human desire to dominate is more pronounced in males. I have already noted the human female tendency to be selective in mating. Such selectivity often takes the form of a preference for males of high status – a behavioural pattern known as “hypergamy.” The corresponding male preference for females of high status is substantially weaker; human males tend to be attracted to nubile females regardless of status (indeed, sometimes seemingly without regard to any other factor whatever). The result is that in non-monogamous societies, high status males will commonly be able to obtain multiple mates; lower status males will commonly be less reproductively successful. Even in modern ostensibly monogamous societies, studies show greater variability in the number of offspring of males than in the number of offspring of females. This suggests that even low status females are able to find males to impregnate them; low status males, by contrast, are often unable to reproduce at all. (Similar phenomena can be observed in many other species, especially among the larger mammals – deer, wolves, walruses, and gorillas, among others. Males compete for status. The winners mate; the losers do not.) The net effect is to give males a powerful evolutionary reason to compete for dominance. Males not so motivated are less likely to reproduce. Significantly, when evil is associated with a desire to dominate, it is almost always portrayed as male. Female Sauron-equivalents (evil characters with a desire to take over the world) are not nearly as common. Regardless of whether it derives from a desire to advance one’s own survival and reproduction or from a male response to female hypergamy, the impulse to dominate almost inevitably conflicts with the principle of reciprocity. When we adhere to the principle of reciprocity, we typically do not get everything we want. This is why evil and the desire to dominate are often linked. Motive, however, is critical. Those who seek power for altruistic purposes are viewed differently than those who seek power selfishly. History and literature are filled with images of true and just kingship, which necessarily implies rule for the benefit of all, not just for the benefit

Theodore P. Seto 31 ____________________________________________________________ of the ruler. Tolkien’s Aragorn8 is an obvious example. The purest version of true kingship, of course, is the monotheistic vision of God. God is not motivated to power by a need to survive and reproduce. He is free to respond solely to the mandate of reciprocity; alternatively, that mandate is his mandate, built into the mathematics of the universe and reflecting something essential about his character. It is only when a desire for power reflects selfishness, responsive solely to the mandate of reproduction, that we associate power with evil. One further aspect of this relationship merits note. A party with disproportionate power is less likely to be punished. The theory of repeat games tells us that one who is never punished for his defections should become increasingly likely to defect. In the words of Lord Acton: “All power tends to corrupt; absolute power corrupts absolutely.” Substantial power imbalances invite breaches of the principle of reciprocity, regardless of the initial good intentions of the powerful. One might posit that the United States and Israel, for example, approach their conflicts solely with good intentions. The power imbalance between either of these countries and its foes, however, creates great risk of increasing deviations from the principle of reciprocity over time. In the long run, such deviations are unlikely to be adaptive. 5.

Conclusion My theory of normative obligation is still under development. It is not my purpose here to justify or defend that theory in detail. Rather my purpose is to suggest that the theory may be able to do useful work – that it sheds light on some of the most important characteristics of evil. Evil can be defined. And it can be defined in a way that is rigorous, consistent with common usage, and illuminating.

1

Notes

Portions of the theory are outlined in Seto, 2001 and Seto, 2002. 2 See generally Axelrod, 1985 and Axelrod, 1997. 3 Consider the following quotations: In Christianity, “All things whatsoever ye would that men should do to you, do ye even so to them: for this is the Law and the Prophets” (Matthew 7:12 ); in Judaism, “What is hateful to you, do not to your fellowmen. That is the entire Law: All the rest is commentary” (Talmud, Shabbat 31a); in Islam, “Do to all men as you would wish to have done unto you, and reject for others what you would reject for yourselves” (Mohammed in the Hadith); in Confucianism, “Confucius was asked, ‘Is there one word which may serve as a rule of practice for all one’s life?’ And he replied, ‘Is “reciprocity” not such a

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____________________________________________________________ word? Do not to others what you do not want done to yourself’” (Analects of Confucius); in Hinduism, “This is the sum of duty: do naught unto others which would cause you pain if done to you” (Mahabharata 5, 1517); in Buddhism, “Hurt not others in ways that you yourself would find hurtful” (Udana-Varga 5, 18); in Taoism, “Regard your neighbor’s gain as your own gain, and your neighbor’s loss as your own loss” (T’ai Shang Ken Ying P’ien); in Zoroastrianism, “That which is good for all and any one – For whomsoever – that is good for me. What I hold good for self, I should for all. Only Law Universal is true Law.” 4 Kant, 1963a, 119-121 and Kant, 1963b, 18-22. 5 Rawls, 1999, 118-123. 6 Cosmides and Tooby, 1995, 163, 182, 205. 7 Tolkien, 1965. 8 Tolkien, 1965.

References Axelrod, R. (1997), The complexity of cooperation: agent-based models of competition and collaboration. Princeton: Princeton University Press. ── (1985), The evolution of cooperation. New York: Basic Books. Cosmides, L. and J. Tooby. (1995), ‘Cognitive adaptations for social exchange’, in: J.H. Barkow et al. (eds.) The adapted mind: evolutionary psychology and the generation of culture. Oxford: Oxford University Press. 163-228. Kant, E. (1963), ‘Critical examination of practical reason’, in: Kant’s ‘Critique of practical reason’ and other works on theory of ethics. T.K Abbott (trans.) London: Longmans, Green & Co. 87-262. ── (1963), ‘Fundamental principles of the metaphysic of morals’ in: Kant’s ‘Critique of practical reason’ and other works on theory of ethics. 1-84. Rawls, J. (1999), A theory of justice. Cambridge, MA: Belknap. Seto, T. (2001), ‘Intergenerational decision making: an evolutionary perspective, Loyola Los Angeles Law Review 35: 235-76. ── (2002), ‘The morality of terrorism’, Loyola of Los Angeles law review 35: 1227-63. Tolkien, J.R.R. (1965), Lord of the rings. Boston: Houghton Mifflin.

The Catheter of Bilious Hatred Robert N Fisher The news is usually full of tales of human hatred, violence, aggression, and plain nastiness. Two news stories in particular have been prominent in the United Kingdom over the past two months. The first concerns the discovery of the body of a boy in a suburban park in London. The boy had been battered, stripped naked, beaten - especially around the arms, shoulder and head - doused in petrol, and burned. The coroner reports the boy was, in all likelihood, alive when set on fire. At the time of writing the boy still has no name. We know he was Asian, that he was 5ft. 2in. tall and about 12 years old. Beyond that, however, we know nothing. Only his hairstyle was discernible through the wounds. The one fact we know is that in the United Kingdom, a “wealthy country, forever poised on the promise of even better tomorrows, a child has died utterly, decisively remote from love and care and mourning.” 1 Nor has this child been alone: in September 2001, a child aged 5 was pulled from the Thames. I say a “child” - it was the torso of a boy, mutilated, decapitated, arms and legs hacked off. And -- despite appeals from dignitaries such as Nelson Mandela -- the child is also nameless. The second case concerns the death of eight-year-old Victoria Climbie, who died a “lonely and miserable” death of appalling abuse, neglect, and starvation.2 She was sent to the United Kingdom from the Ivory Coast by her parents who wanted a better life for her; she was subject to savage beatings by her great aunt, Marie Therese Kouao and boyfriend Carl Manning. She died within a year and a half of arriving of hypothermia. The Home Office pathologist found 128 separate injuries on her body, most of which were suggestive of “weapon type injuries.” 3 Anna was forced to live and sleep in a freezing bath in her own excrement. Her hands and feet were bound and she was naked except for a bin liner tied around her neck. Manning has admitted hitting her with bicycle chains and belt buckles, and beating her with weapons including a hammer and wire. He also admits to being enraged that no matter how hard he hit her, she would never cry. On the 14th of July 1999, Anna was admitted to hospital with severe cuts, bruises, and cigarette burns on her hands and legs. Ten days later, she was admitted to hospital again, this time with severe scalding to her head after boiling water had been poured over her after she complained of itching. She died shortly afterwards. Cases like these “bother” me; and “bother” is the only word I can find that is appropriate. As I sit and read the various explanations that come forward I can accept that in the first example, what happened to the boy was probably bound up with racial tension, and/or with group or even gangland dynamics. I can accept that in the second case it was probably to

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____________________________________________________________ do with social security fraud, social services incompetence and overly bureaucratic child welfare systems. These things - intellectually - make sense to me. Yet still I am “bothered.” To be bothered is to be concerned - to have one=s interest provoked. To be bothered is for something to cause irritation or annoyance - to be made angry or unhappy. I am concerned, beyond mere speculative interest, with what is happening in these two cases. They provoke me; they irritate me, and ultimately they annoy me. The reason lies in the fact that whilst all of the explanations offered sense to me, none of the explanations offered actually satisfy me. It is one thing to understand something; it is another to find satisfaction in such understandings. The explanations offered do not satisfy; they do not capture for me what actually happened. I want to be able to say that what has happened in these two cases is evil. I want to say that the events in both cases are evil; and I want to say that the persons who did these things are evil. Both the events and the persons involved in these events are evil - in such a way that there is no need for further qualification. The problem arises in wrestling with the sense in which we can call these events and persons “evil.” Here is the source of my “botherment.” By “sense” I mean something more than just wanting to say that these cases are “repulsive” or repugnant; something more than just parading moral outrage and an exercise in fist shaking. I want to say that here, on clear and explicit display, is evil. And I want to say that this is something more than just simply being “bad” and is something more than just simply being “morally wrong.” When we consider these cases, I want to say that we are dealing with evil. And in wrestling with “evil” it is precisely the “something more” that needs to be unpacked and spelt out. What follows is a first attempt to unpack the “something more.” I want to argue that “evil” is a blend or mixture of four things. Evil is a) peculiar to us as a species; b) intelligently artistic; c) intensely creative, and d) personally satisfying. When these four elements come together, then, I think, we are dealing with “evil.” 1.

Evil as Peculiar to us as a Species Evil is peculiar, though not I think totally, exclusive to us as a species. Some species, under the definition I am offering here, are capable of displaying and performing “evil” actions. For example, whales are

Robert N Fisher

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____________________________________________________________ capable of playing a very sophisticated game of “tennis” by tossing a living seal into the air and batting the creature between them using their tail fins. The sophistication of what they are doing can be seen in the fact that the seal never hits the water between “points.” Another example could be that of a domestic cat playing with a bird. The cat doesn=t kill the bird it simply disables the animal to prevent it from escaping, and then seemingly proceeds to extract enjoyment by tossing the bird in the air and catching it.4 The key to unlocking this point is provided in Philip Larkin=s poem Myxomatosis: Caught in the centre of a soundless field While hot inexplicable hours go by What trap is this? Where were its teeth concealed? You seem to ask. I make a sharp reply, Then clean my stick. I=m glad I can=t explain Just in what jaws you were to suppurate: You may have thought things would come right again If you could only keep quite still and wait.5 Larkin is “glad he can=t explain.” Why? Why is he “glad”? Clearly he is “bothered.” I feel his sentiment. It would be embarrassing to explain to an animal just exactly what human beings get up to. I'd be ashamed to explain to an animal that we have the ability to sit down and think about the construction and design of a trap. I'd want to ask the rabbit whether animals design devices to hurt (not kill) but just hurt other animals. It seems that the ability to be cruel - and to be so artistically cruel - is peculiar to the human animal. Imagine a conversation between Pooh Bear and Rabbit: “Hello, Rabbit.” “Oh, hello, Pooh Bear.” “What=s that around your neck, Rabbit?” “I don=t know, Pooh Bear; I just ran into it as I was making my way between these two trees. It=s very tight - and as you can see, I=ve hurt myself quite badly.” “What are you going to do, Rabbit?” “Well, Pooh, I=ve tried chewing at it, but it=s too strong for my teeth; and if I try and pull myself out, it only gets tighter. I guess I shall just sit here a while and see if it will go away.”

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____________________________________________________________ The rabbit cannot understand the situation it is in. It knows it is stuck; it knows it is in pain and cannot release itself from this pain. The rabbit doesn=t have either the intellectual sophistication or the ability to conceive of the nature of the trap it is in. It is totally beyond it. When we are in pain we also keep still and hope it will go away. But we understand what is at work in the situation. The animals don=t. They lack the intelligence, and they lack the imagination which is a key element in performing an evil action. 2. Evil as Intelligently Artistic The need for intelligence is a vital ingredient in determining whether something or someone is evil or has performed an evil action. The level and degree of intelligence required needs further exploration, but unfortunately that cannot be done in this chapter. The implications of placing intelligence at the heart of evil are varied - but the point is that someone lacking in intelligence cannot do evil. However, intelligence by itself is not enough for evil to come about. A second element is required - imagination. Fyodor Dostoyevsky in his novel The Brothers Karamazov captures the point well. Ivan Karamazov tells a story to his brother Aloyosha: By the way, not so long ago a Bulgarian in Moscow told me...of the terrible atrocities committed all over Bulgaria by the Turks and Circassians... They burn, kill, violate women and children, nail their prisoners= ears to fences and leave them like that till next morning when they hang them, and so on - it=s quite impossible to imagine it all.6 Notice Dostoyevsky=s language - it is impossible to “imagine” it all. Television news coverage of wars and atrocities show us devastating scenes from across the world. Yet even these pictures are very often not the “true picture.” The pictures we see are carefully selected according to the time of day in which they are broadcast, cleaned up, edited, and generally sanitised. We can only imagine what we are not seeing. And as survivors of terrible events often tell us, “you had to be there - you can=t possibly imagine it all.” Imagination is the key to being capable of evil and being in the presence of evil. Imagine a lion. The lion is hunting. It sees a gazelle. Very slowly it circles, getting ever nearer to the unsuspecting prey. Suddenly the chase is on: a swift burst of speed, two huge paws close over the gazelle=s rump, force the animal to the ground, and with a single bite to the neck, severs the creature=s spinal cord. A clean, simple, kill.

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____________________________________________________________ Now imagine a different scenario. A lion is hunting. It sees a gazelle. Very slowly it circles, getting nearer to its unsuspecting prey. Suddenly the chase is on: a swift burst of speed, two huge paws close over the gazelle=s rump, and force the animal to the ground. But this time the lion nicks the hamstring of each leg, leaving the gazelle perfectly alive, but incapable of moving. Now the lion can do what it wants. The lion thinks to itself, with a sense of satisfaction, “this gazelle - oh yes - this gazelle stuck its tongue out at me last week; I=ll show it - I=ll teach it a lesson.” So the lion eats the knee caps first. So as to keep it alive longer, he chews off the ears, then the tail, and then the nose. Finally, in the heat of the midday sun, he starts gnawing deliberately at the back of the gazelle=s head. The gazelle, unable to move, bleats in pain, waiting for death to eventually come. The above scenario just doesn=t happen. It wouldn=t occur to a lion to kill a gazelle in this kind of way. Lions don=t harbour seething resentment or the desire for revenge; they don=t feel slighted and insulted. And this is Dostoyevsky=s point; human beings have elevated killing to an art form. It demands imagination and it requires creativity. This is artistry - almost perfect artistry. Dostoyevsky continues: And, indeed, people sometimes speak of man=s “bestial” cruelty, but this is very unfair and insulting to the beasts: a beast can never be so cruel as a man, so ingeniously, so artistically cruel. A tiger merely gnaws and tears to pieces, that=s all he knows. It would never occur to him to nail men=s ears to a fence and leave them like that overnight, even if he were able to do it.7 The “artistry” of the human creature was clearly on show in Sierra Leone. Troops - mainly aged between 15 and 20 - would enter a village. The first thing they do is round up all the pregnant women. They would keep a book in which was recorded all the bets between the soldiers on the sex of the unborn child. When all the bets were taken they would take a machete and hack the unborn children from its mother=s stomach to see who wins the bet. 3. Evil as Intensely Creative If intelligence and imagination are needed, creativity is no less required. Creativity is the link between intelligence and imagination from which novelty arises. It is, however, perhaps the most important of the elements. Dostoyevsky again provides the key:

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____________________________________________________________ One incident I found particularly interesting. Imagine a baby in the arms of a trembling mother, surrounded by Turks who had just entered her house. They are having great fun: they fondle the baby, they laugh to make it laugh and they are successful: the baby laughs. At that moment the Turk points a pistol four inches from the baby=s face. The baby laughs happily, stretches out his little hand to grab the pistol, when suddenly the artist pulls the trigger in the baby=s face and blows his brains out....Artistic isn=t it? Incidentally, I=m told the Turks are very fond of sweets.8 Dostoyevsky presents us with the picture of innocence. The human child, the human animal, at birth, has no idea of evil. Like the other animals on the planet, it doesn=t occur to the baby just what a gun is, what its purpose is, nor what it can do to human flesh. Notice also the picture Dostoyevsky gives us of the human animal when it is grown up - the human creature that is on the other side of the pistol. Who designs a gun? Who sits down and designs an instrument, a weapon, which can kill? Who sits down and designs a chemical weapon? Who sits down and designs a biological weapon? And who points a gun at a baby=s face? Consider the sheer creativity that surrounded the construction of the concentration camps. A camp has to be designed; plans drawn up, architects linking with engineers, linking with constructors. Styles, formats, materials have to be selected. The camps have to be populated: railway systems consulted, trains booked, timetables organised. The inmates have to be killed: methods contemplated and tried - shooting, carbon dioxide, gas. The bodies have to be disposed of: cremation, burial, experimentation. The Holocaust was an act of unparalleled intense administrative creativity. These considerations also undermine the argument that evil is mundane, ordinary, everyday. In one sense it is - for those looking on. But the performance of evil act requires an individual or group of individuals who are “bothered” - people who have taken an active interest in achieving the best result in the most efficient manner. If what they were doing was of no interest or a matter of indifference, the action or event would not happen. Evil needs someone, somewhere, to be bothered --to take an interest. And it no less requires of that person an act of intelligent, imaginative, creativity.

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____________________________________________________________ 4.

Evil as Personally Satisfying The issue of interest --of being bothered-- brings us to the final element in the evil act or the evil person. The end result must be personally satisfying. Imagine one further set of scenarios. I come home. My wife is in bed with another man. Under scenario A, I am so enraged I reach for the baseball bat I keep just behind the bathroom door, and with a single blow, knock them both unconscious. But, no. That will not do. This bastard has slept with my wife. He has hurt me, wounded me, insulted me, made a fool of me. This bastard must pay. So, under scenario B I knock him unconscious. Fortunately we=re doing a house extension: a pneumatic stapler is close to hand. I staple his hands to the walls to keep him there. Now I have him (just as the lion has the gazelle!). I now have time to think about how to make this person feel as bad as I do and experience some of the hurt he has inflicted on me. I could cut his penis off - but frankly that=s not really good enough. A single slice and it=s over. No. “Something more is needed.” An idea raises. Get a razor blade --the blunt razor blade I keep in the old shaver in the bathroom cabinet. Slice his scrotum open, and pull out his testicles. Slice each one off in turn and stuff them into his mouth. That=ll teach him. How creative! How satisfying! And at this moment, I suggest, evil is born. Here you can see the definition with which I working in action -in two senses. First, you can see the human creature functioning at full ability to use his intelligence, his creativity, his imagination to pull off something that he finds personally satisfying--an action, designed to not just to hurt, but to hurt with maximum pain for the longest duration in order to achieve what I want. But second, here you also have the human creature who is writing this chapter, imagining how best to illustrate his definition of evil, using the creativity he has to satisfy the point he is trying to make! The objection can be raised that element four—evil is personally satisfying-- is nothing more than sadism. But this is not an objection. Of course it is sadism: the desire to hurt another human being and enjoy doing so is a necessary part of doing something evil. To do it without enjoying it, or without taking some measure of satisfaction would be a different kind of action all together. When the catheter of bilious hatred is squeezed to its maximum, we paint the canvass of human evil with artistry unparalleled on the planet, and unprecedented in history. In us, evil is lit up in all its creative artistry and imaginative glory. We alone, of all the animals on this planet, are best equipped to conceive, to imagine, to create, and to deliver evil. And in such moments as these, not only are the things we do evil, but so the

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____________________________________________________________ person doing these things is evil. The people who killed the unnamed boy in the park were evil in those moments they hatched the plan to kill this boy and strip him of his identity; the people who beat and abused little Victoria were evil in those moments when they designed ever more creative ways of abusing her in an attempt to get her to cry. This is the “something more” which gives “evil” its meaning; and the four elements I have brought out today are a jolly good indicator of knowing when we are in the presence of evil. But only in those “moments.” No one is always evil. It comes and it goes, waxing and waning as the tide of intelligence and creativity are directed toward certain objects, persons or events. To be permanently evil is impossible. It comes to be only when we are “bothered.” I started this chapter, and followed this particular road, because I was bothered by these two cases. I finish with the fact that evil comes to be because persons become bothered with the things or people around them. Is my being bothered the same as their being bothered? In short, the answer is “yes.” Just as evil comes about because there is an active interest, so overcoming evil will only happen if there is an active interest taken by those who are bothered by the things they see or read. Goodness, just as much as evil, is a question of being bothered --an invitation to take an interest in objects, events, and people and then to use intelligence, imagination, and creativity to do something about what has bothered one in a way that produces personal satisfaction.

1

Notes

Orr, 2002, 1. 2 See www.victoria-climbie.org.uk for the official inquiry site and documents. 3 Holt, 2001, 1102000/1102191.htm. 4 There is a lot of work that needs to be done on this area. The question of whether members of other species are capable of “evil” actions has far reaching consequences. Could an animal be put on trial for its actions? If animals can be said to do evil actions, does this give them enhanced status and position within the human world? 5 Larkin, 1977, 31. 6 Dostoyevsky, 1958, I, 278. 7 Dostoyevsky, 278-79. 8 Dostoyevsky, 279.

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References Babuta, S. and J-C. Bragard. (1988), Evil. London: George Weidenfeld and Nicolson. Bavidge, M. (1989), Mad or bad? Bristol: Classical Press. Das, V. et al. (2001), Remaking a world: violence, social suffering and recovery. Berkeley: University of California Press. Dostoyevsky, F. (1958), The brothers Karamazov, D. Margashack (trans.) 2 vols. Harmondsworth: Penguin. Ellul, J. (1970), Violence: reflections from a Christian perspective. London: SCM Press. Holt, A. (2001), BBC news, Friday, Jan. 12. news.bbc.co.uk/hi/English/uk/newsid_1102000/110211.stm Home Office. (2001), www.victoria-climbie.org.uk London. Larkin, P. (1977), The less deceived. London: The Marvel Press. Midgley, M. (1984), Wickedness: a philosophical essay. London: Ark. Orr, D. (2002), >Pity the child that dies unknown=, in The Independent, Feb. 22. (www.independent.co.uk/story.jsp?dir=1&ory=138972, 1).

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Reading for Constructions of the Unspeakable in Kafka’s Metamorphosis Margaret Sönser Breen 1.

Introduction One of the most challenging issues confronting secondary and university teachers is how to teach subjects that have been labelled “off limits,” either by school boards or institutional policies or, more pervasively if vaguely, by cultural norms. Discussions of non-normative or minority genders and sexualities are for this reason muted or silenced within educational contexts, ironically the very contexts ostensibly committed to social change and betterment. Teachers are often caught in a battle between idealism and pragmatism: how is one to afford students opportunities for thinking about such typically unspeakable matters as non-normative genders or sexual practices if, in doing so, teachers face the very real risk of not being tenured or of losing their jobs? In this paper I consider the importance of training students to recognize that the construction of meaning through language, whether in literature or culture at large, is a political process that renders certain subjects legitimate and others illegitimate. I begin by briefly examining the most disturbing contemporary examples of language as political process: American (U.S.) rhetoric immediately following the September 11 attacks. This rhetoric works to identify and de-legitimate various cultural subjects as subjects; in effect, subjects become “others.” So, for example, in the rhetoric produced post September 11, women, gays and lesbians, Muslims, and Arabs were all variously deemed “suspect” subjects, capable of threatening dominant social norms. Discussion of contemporary examples of the rhetorical production of cultural “others” serves as a useful segue for an analysis of literary texts or, more particularly, for moments in literature engaged in censoring their subjects or transforming those subjects into something improper or suspect. The literary text on which I focus is Kafka’s 1915 novella, The Metamorphosis. A chilling tale of how social policing and surveillance work to silence accounts of gender (as well as racial and sexual) transgression, The Metamorphosis offers students an allegory for the dehumanizing social construction of non-normative groups. My paper argues that by reading texts (in this case specifically Kafka’s novella) as fundamentally political, as offering representations of various ways in which populations are controlled, the teacher provides students with an epistemological framework not only for recognizing constructions of the unspeakable in their lives but also for identifying the pedagogical dilemma of how to teach what may not be taught—the “don’t ask, don’t tell” power play of an ostensibly “open” society—that so many teachers face.

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____________________________________________________________ Reading for constructions of the unspeakable (the suspect subject) works then, ultimately, to radicalize the educational process for students and teachers alike within a society fuelled at least in part by various forms of prejudice such as homophobia and heterosexism. 2.

September 11 and the Death of a Metaphor I am writing this essay after September 11, a late summer day of brilliant visibility, just at the beginning of the school year: a day when life in the United States changed irrevocably. With the hijacking of four airplanes and the ensuing attacks on the World Trade Center and the Pentagon, not only did thousands of people lose their lives, but the possibility of Americans defining themselves as safe and of linking that sense of safety to a commitment to cultural pluralism, vaporized in a matter of minutes. The tragedy of September 11, in other words, is not simply the death of so many people but the death of one of the country’s most important metaphors, “the melting pot.” Seemingly, this metaphor only attests to the horror of the day when so many bodies disappeared together in the burning rubble of the World Trade Center towers.1 In the wake of this twinned loss of people and metaphor, Americans have begun to scrutinize themselves, engaging in the monstrous activity of dividing themselves between “patriots” and “foreigners”; between “real” Americans and “others.” It is a destructive process, one that has quickly resulted in damage to hundreds of stores, mosques, and businesses, as well as violence against thousands of people, simply because they somehow carry a mark of “difference,” which this time has been labelled “Middle Eastern” or “Arab” or “Muslim.” Bigotry, racism, and other overt forms of violence have thrived on the call for a metaphoric disconnection. On the level of rhetoric, a pervasive language of moral judgement bars any rational contextualization of the attacks. The attacks have been labelled “evil,” the perpetrators “evildoers.” While the violence and horror of the attacks cannot and should not be denied, what the language of morality here effects is the refusal to recognize the attacks as the product of a rationally coherent political position. Instead, the attackers’ motives are represented as “inexplicable”; the attackers themselves stand beyond the pale of reason. This polarizing rhetoric of morality points to the inevitability of the United States’ political response as one of non-negotiation. Both the subsequent acts of terrorism and the responses that they have engendered have participated in this symbolic register of nonnegotiation. In the case of the anthrax mailings, correspondence has itself become diseased. Letters have literally infected people. On the level of metaphor, people have reacted by refusing correspondence: in the name of national and personal security, they have called for various forms of

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____________________________________________________________ profiling; they have split the country into camps of “them” and “us.” September 11 and its aftermath have thus revealed the Conradian horror of the rhetorical practices of social control. Terror, whether induced by a foreign or domestic agent or by the state itself, exacts the death of the metaphoric relation between self and other; it exacts the refusal to engage the other as oneself. In this sense, September 11 has only writ large the processes of dis-identification that are always at work in order to isolate and eradicate particular individuals or groups that pose some kind of social threat. 3.

Dis-identification and Metamorphosis The shift in cultural mood in the United States after September 11 seems as sudden and as irrevocable as the change accorded the protagonist of Franz Kafka’s Metamorphosis (1915): “When Gregor Samsa woke up one morning from unsettling dreams, he found himself changed in his bed into a monstrous vermin.”2 From the beginning of Kafka’s novella, there is never any question that Gregor is some kind of cultural “other”; only the extent to which the people around him, most notably his family, will be able to recognize his humanity is at issue. Because their ability to identify with him steadily and irremediably erodes, Kafka’s early twentieth-century parable of alienation might well be read as a parable for the epistemological fallout of September 11. And vice versa. Christian Fundamentalist leader Jerry Falwell’s infamous reaction to September 11 comes to mind: I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make an alternative lifestyle, the ACLU, People for the American Way—all of them who have tried to secularize America—I point the finger in their face and say, “You helped this happen.”3 For Falwell, the tragedy of September 11 testifies to the United States’ fall into secularism, by which we may understand a fall from a Christian fundamentalism that refuses to grant value or legitimacy to cultural and religious practices beyond its own.4 Such a compulsion to stigmatize bespeaks an epistemological entrenchment that requires the dismissal of the importance of the melting pot metaphor: various ethnic, racial, religious, gender, and/or sexual minorities become unassimilable, even unthinkable, within the metaphoric stuff of cultural exchange. The numerous post-September 11 manifestations of prejudice of which Mr. Falwell’s comments provide one instance thus teach us much about the social mechanisms of dehumanization, so that the quasi-fantastic tale of

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____________________________________________________________ Gregor Samsa’s metamorphosis into a bug no longer seems so fantastic or improbable. Perhaps that metamorphosis even seems inevitable. In other words, pace Oscar Wilde, much as literature can help us understand reality (that is, the cultural constructions and social assumptions upon which the conventions of “reality” are based), reality can help us understand literature. It is my belief that by reading at this present cultural moment The Metamorphosis we can readily identify its constructions of the unspeakable and the dehumanizing consequences of their enforcement for Gregor Samsa. Kafka’s text is a text for our own time, a powerful literary witness to the persistent cultural practices of alienation and dehumanization. 4.

The Metamorphosis and Contemporary Constructions of the Unspeakable From the novella’s beginning, Gregor resists the ready categories of thought that the text supplies in order to contain him. When he awakens to find himself a bug, it is as a bug like no other. He is a “monstrous vermin,” an embodiment of processes of dis-identification that render him neither fully bug nor fully human. It is difficult to say precisely what he is. As Stanley Corngold argues, the vermin should not conjure for the reader an insect of some definite kind….Sometimes he behaves like a low sort of human being, a “louse”; but at other times he is an airy, flighty kind of creature. In the end he is sheerly not-this, not-that—a paradox…5 Gregor’s alienation (including self-alienation) exists even on the level of language itself. What could cause Kafka to figure his protagonist not simply as a bug but as an obscured figure composed of human and bug-like characteristics? Here one can consider the alienating cultural contexts for Kafka’s own life. His estrangement as a German-speaking Jew living in Prague during the waning days of the Austro-Hungarian Empire is well known and has been much discussed. Much less discussed is the issue of homosexuality, the ubiquitous taboo of Kafka’s time, euphemistically referred to as “the unspeakable vice.”6 Partially because it itself was the paradoxical off-limits, omnipresent topic of the late Hapsburg era and partially because it has retained that status within the American classroom almost a century later, homosexuality proves a key focal point for teaching The Metamorphosis. By considering those moments in the text that actively figure representations of sexuality as censored, we can draw attention not only to the prevailing social and moral codes of Kafka’s era

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____________________________________________________________ but also to comparable mechanisms that police and delimit the scope of the teachable in the present time. Late nineteenth- and early twentieth-century discussions of sexuality prove important for The Metamorphosis’ characterization of Gregor precisely because these discussions rely so heavily on the kinds of rhetorical censorship at work in Kafka’s text. As Mark Anderson’s study of Kafka’s writings has shown, the latter was well aware of contemporary debates on homosexuality. As Anderson notes, even as homosexuality was far from being an accepted practice either in Hapsburg Bohemia or Wilhelminian Germany…Kafka’s culture produced an astonishingly rich body of theoretical studies, from Freud and KrafftEbing to Otto Weininger, Magnus Hirschfeld, Hans Blüher and Otto Gross, which laid the groundwork for a non-normative view of same-sex relations between men….Kafka came into contact with many of these theories and in several instances freely speculated about his own homoerotic impulses.7 Thus, late nineteenth- and early twentieth-century sexological studies occupied an uncanny cultural space that offered Kafka and his contemporaries in-depth discussions of unspeakable sexual behaviours. One of the most well known of these studies is Krafft-Ebing’s Psychopathia Sexualis, originally appearing in 1886 and then substantially revised and posthumously published in 1906. For Krafft-Ebing, nonnormative sexual practices, including masturbation and homosexuality, were the product of a hereditarily determined moral degeneracy. The language of the preface to Psychopathia’s first edition reveals this assumption: The scientific study of the psychopathology of sexual life necessarily deals with the miseries of man and the dark sides of his existence, the shadow of which contorts the sublime image of the deity into horrid caricatures, and leads astray aestheticism and morality.8 Krafft-Ebing’s language here participates in a kind of metamorphosis that resembles Gregor’s own. Non-normative sexual practices can not be spoken of directly; they must be understood as “miseries” and as “dark sides” that in turn cast a “shadow” on the individual’s existence. The word “shadow” here of course extends the metaphor of moral “darkness.” Given that it means “figure,” “shadow” also draws our attention to “figure

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____________________________________________________________ of speech” or language and the constructions of thought that “shadow[s]” convey. Aberrant sexualities, in other words, must necessarily be represented in terms of ruptured categories of thought and contorted metaphors. So, Krafft-Ebing explains, the “shadow…contorts the sublime image of the deity into horrid caricatures.” Like Gregor’s own, the sexual deviant’s horror is that s/he transgresses the boundaries of thought: s/he is not simply a “horrid caricature[]”; s/he is that and the “sublime image.” Stated another way, non-normative sexual practices threaten not only individuals but also language. For Krafft-Ebing such practices signal both “normal” individuals’ propensity for perversity and “tainted” individuals’ latent perversion.9 So, for example, masturbation is problematic not simply because it is a non-normative sexual behaviour that Krafft-Ebing reads as working to inhibit heterosexual relations; masturbation can also be indicative of a perverse identity category, homosexuality. Masturbation, in other words, is threatening as both a practice and a sign, a sign that, significantly, can call homosexuality into being. Krafft-Ebing’s rhetorical struggle to contain masturbation’s power as a sign is apparent in his introduction to the section on masturbation, titled “Homo-sexual Feeling as an Acquired Manifestion in Both Sexes,” from which I quote at length. Krafft-Ebing writes, Nothing is so prone to contaminate—under certain circumstances even to exhaust—the source of all noble and ideal sentiments, which arise of themselves from a normally developing sexual instinct, as the practice of masturbation in early years. It despoils the unfolding bud of perfume and beauty, and leaves behind only the coarse animal desire for sexual satisfaction. If an individual, thus depraved, reaches the age of maturity, there is wanting in him that aesthetic, ideal, pure and free impulse which draws the opposite sexes together. The glow of sensual sensibility wanes, and the inclination toward the opposite sex is weakened. This defect influences the morals, the character, fancy, feeling and instinct of the youthful masturbator, male or female, in an unfavourable manner, even causing, under certain circumstances, the desire for the opposite sex to sink to nil; so that masturbation is preferred to the natural mode of satisfaction…. With tainted individuals, the matter is quite different. The latent perverse sexuality is developed under the influence of neurasthenia induced by masturbation, abstinence, or otherwise.

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____________________________________________________________ Gradually, in contact with persons of the same sex, sexual excitation by them is induced. Related ideas are coloured with lustful feelings, and awaken corresponding desires. This decidedly degenerate reaction is the beginning of a process of physical and mental transformation, a description of which is attempted in what follows, and which is one of the most interesting psychological phenomena that have been observed. This metamorphosis presents different stages, or degrees.10 Masturbation awakens in the homosexual “a process of physical and mental transformation…[a] metamorphosis.” Strikingly in this section, even as Krafft-Ebing asserts that “the matter is quite different,” the description of normal individuals in their perversity itself blurs into a description of “tainted” individuals in their perversion. Thus, even in “normal” individuals masturbation is always a sign of homosexuality. The practice in play always suggests the possibility of the identity category at work. What is one to do then but to censure masturbation as a sign? Such is the case in Kafka’s Metamorphosis. In a key scene near the end of part two, Gregor the bug responds to his mother and sister’s removal of his furniture from his room by climbing atop his one prized possession, a picture from a glossy magazine of a woman that he has framed and hung on his wall: …he broke out…then he saw hanging conspicuously on the wall…the picture of the lady all dressed in furs, hurriedly crawled up on it and pressed himself against the glass, which gave a good surface to stick to and soothed his hot belly. At least no one would take away this picture, while Gregor completely covered it up.11 Pressing his body against the image of the woman in furs, where furs, as Elizabeth Boa notes, are “evocative of the furry animality of the female genitalia,”12 Gregor redirects the framed image: it becomes one of a masturbator. This scene does not, however, as Boa asserts, identify Gregor as “homo futuens” or “heterosexual man.”13 With a literary antecedent in Sacher-Masoch’s Venus in Furs (1870), in which the protagonist Severin, in his masochistic role as his lover’s slave, is renamed “Gregor,” Kafka’s own “woman-in-furs” scene rather captures Gregor Samsa’s capacity for sexual perversion.14 As the analysis of the extended passage from Psychopathia Sexualis makes clear, Gregor’s masturbatory

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____________________________________________________________ posture threatens to disclose his homosexuality.15 His sticky “hot belly” testifies to the wider “metamorphosis” that, as Krafft-Ebing has argued, masturbation engenders within the congenital homosexual. Significantly, mother and sister respond to Gregor with verbal indirection. His mother screams, “Oh, God, Oh, God!” and his sister calls out “You, Gregor,”16 turning his name into an invective. Taken together, the reactions frame Gregor’s action as a moral transgression, but for mother and sister alike that action remains unspeakable. So, too, does Gregor, for his redirection of the image enacts his parodic christening: stuck to the glossy photograph and secreting bodily fluids, he becomes an embodiment of perversion, an identity category to which the picture frame that he has made itself draws the reader’s attention. Gregor the masturbator/homosexual occupies a rhetorical silence. Unspeakable as a human being, Gregor must henceforth be identified only as a bug, a “monstrous vermin,” an “it” that his family would rather eradicate than engage. So Gregor’s sister remarks some pages later: “I won’t pronounce the name of my brother in front of this monster, and so all I can say is: we have to try to get rid of it.”17 This refusal on the part of family members to recognize Gregor as one of their own, and as such worthy of their care, underscores how theirs is a repudiation of his identity category. Though, as the etymological meaning of his name suggests, Gregor has kept watch over his family, they, in the end, reject him: removed from their society, he remains closeted within his room, where, eventually, he dies.18 5.

Lessons from The Metamorphosis The Metamorphosis, particularly when read against turn-of-thecentury sexological discussions, provides a powerful example of how society, whether as local as the family or as extensive as a culture, polices its members. Some of these means of control are readily identifiable; others are not. Similarly, Kafka’s text offers both overt and subtle signs of Gregor’s alienation. In terms of the former, the text’s continual comparisons of Gregor with Christ come readily to mind. Beginning with the novella title, which in German (die Verwandlung) conveys the idea of transubstantiation as well as metamorphosis, these comparisons with Christ ultimately culminate in Gregor’s death, which he understands as a self-sacrifice for the good of his family. Such overt signs of course allow the reader to identify Gregor’s estrangement and to recognize his heroism in the process. Importantly, though, such signs do not allow one to experience The Metamorphosis as a text that itself participates in the censorship of its meaning. That is, key to understanding Gregor’s alienation is the reader’s consciousness that the narrative itself works to disrupt the reader’s interpretation of and identification with the

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____________________________________________________________ protagonist. The Metamorphosis most effectively conveys Gregor’s alienation in those moments that themselves call attention to the text’s construction of meaning as unspeakable. Those moments exist both within the narrative framework of text and within the reader’s own social context. In terms of the text, because of the policing mechanisms at work within it, Gregor’s masturbation scene could be readily overlooked in a discussion of the novella that focuses on Gregor’s alienation without considering the power of cultural frameworks to determine that alienation. Yet, importantly, within the scene Gregor is framed, and, pressed against the picture of the woman in furs, Gregor is framed by a frame that he has himself made. This scene, then, attests not to the power of social transgression but instead to the power of the cultural closet to which Gregor himself adheres. Here Gregor’s identity as a sexual deviant is codified through its construction as unspeakable. This scene proves crucial to understanding the political power of Kafka’s literary text in particular and cultural texts in general. Brilliantly demonstrating the pervasive power of cultural frameworks to define subjects’ il/legitimacy, Metamorphosis both mirrors and participates in Gregor’s alienation. If, as this reading has suggested, that alienation depends upon the political practice of stigmatizing non-normative practices and people, one is left wondering whether Gregor would fare any better in post-September 11th American society. It is a question worth asking our students as well, for, like the text itself, the reading context is rife with mechanisms of social control. The classroom is a political space, and many teachers can speak of such unspeakable subjects as non-normative sexualities and genders only at very real risk to their jobs. We would do well to tell our students that, some ninety years after The Metamorphosis’s publication, the teacher, like Gregor Samsa, remains an embattled subject. How is one to speak of homosexuality when homosexuality remains culturally proscribed as “unspeakable”? Perhaps the most important lesson that we can offer our students is that the construction of meaning through language is a political process that always harbors the potential for subjects’ horrifying metamorphosis. If we are to resist the fate of the alienated being that is Gregor atop the framed magazine picture, we must draw attention to the various forms of bigotry, homophobia among them, that frame educational experience.

1

Notes

It is worth noting that one of the most popular post-September 11 bumper stickers has been one with an American flag and the phrase “These colors

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____________________________________________________________ don’t run.” The text here suggests that at a time of national crisis the running of colors, and, by extension, the blurring or melting together of cultural boundaries, is a cowardly and, potentially, un-American act. 2 Kafka, 1972/1915, 3. 3 Falwell’s remarks are quoted in Alterman, 2001, 10. 4 More recently, in August 2002, Reverend Franklin Graham, son of wellknown evangelist Billy Graham, remarked that Islam embraces terrorism. In response, Ibrahim Hooper of the Council of American-Islamic Relations warned of the “growing demonization of Islam by extremist right-wing commentators and by representatives of the evangelical Christian community.” See Wilson, 2002, A12. 5 Corngold, 1972, xix; emphasis added. 6 For a fascinating recent study of cultural otherness in Kafka’s work, see Gilman, 1995, which argues that in turn-of-the-century sexological discussions, “the Jewish male body” functioned as “the analog to the body of the homosexual” (160). 7 Anderson, 1996, 79-80. 8 Krafft-Ebing, 1932/1906, vii; emphasis added. 9 Krafft-Ebing distinguishes between perversity (non-normative sexual acts by normal individuals) and perversion (non-normative sexual acts by sexual deviants) on page 286. 10 Krafft-Ebing, 286-287, 289; first two emphases in original; third emphasis added. 11 Kafka, 35; emphasis added. 12 Boa, 1996, 128. 13 Boa, 128. 14 I am indebted to my colleague Pam Brown for drawing my attention to Kafka’s likely allusion here to Leopold von Sacher-Masoch’s Venus in Furs (1870). As Larry Wolff notes, when Krafft-Ebing coined the term masochism in 1890, he was not merely borrowing the name of Leopold von Sacher-Masoch as a convenient label; rather, the case histories in the many editions of Psychopathia Sexualis indicated that Sacher-Masoch, through his published writings and even through personal contacts, had already long exercised a sort of cult appeal upon people who recognized their own sexual inclinations in his literary work (vii). 15 Krafft-Ebing’s discussion of perverse metamorphosis (metamorphosis sexualis) finds resonance in this moment in Kafka’s Metamorphosis, when Gregor presses himself against the picture of the woman in furs. In the original German, while Krafft-Ebing uses the term “Metamorphose,” Kafka chooses “Verwandlung,” a synonym that also connotes

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____________________________________________________________ “transubstantiation.” Kafka’s word choice in effect allows him to keep the reference to Krafft-Ebing in play, even as “Verwandlung” foregrounds the tension between sexuality and conventional Christian morality within Gregor’s world. 16 Kafka, 36. 17 Kafka, 51; emphasis added. 18 Many thanks to Neil Forsyth for pointing out the etymology of Gregor’s name. In The Old Enemy: Satan and the Combat Myth, Forsyth explains that Gregor is in the tradition of the Watcher Angels, who function “as agents of God.” So, for example, in the “second-century apocalypse, the Book of Jubilees…[the Watchers have] been given the task of watching over mankind, in the sense of protecting them…” (167).

References Alterman, E. (2001), ‘The uses of adversity’, The nation. October 8: 10. Anderson, M. (1996), ‘Kafka, homosexuality and the aesthetics of “male culture”,’ in: R. Robertson and E. Timms (eds.) Gender and politics in Austrian fiction. Austrian Studies, 7: 79-99. Edinburgh: Edinburgh University Press. Boa, E. (1996), Kafka, gender, class, and race in the letters and fictions. Oxford: Clarendon. Corngold, S. (1972), ‘Introduction’, in: S. Corngold (trans. and ed.) The metamorphosis by F. Kafka (1915). New York: Bantam. xi-xxii. Forsyth, N. (1987), The old enemy: Satan and the combat myth. Princeton: Princeton University Press. Gilman, S. (1995), The Jewish patient. New York: Routledge. 1995. Kafka, F. (1972/1915), The metamorphosis. S. Corngold (trans. and ed.) op.cit. Krafft-Ebing, R. von. (1932/1906), Psychopathia sexualis. F.J. Rebman (trans.) Brooklyn, NY: Physicians and Surgeons Book Co. Sacher-Masoch, L. von. (2000/1870), Venus in furs. J. Neugroschel (trans.) Harmondsworth: Penguin. Wilson, M. (2002). ‘Evangelist says Muslims haven’t adequately apologized for Sept. 11 attacks’, New York Times. Aug. 15, A12. Wolff, L. (2000), ‘Introduction’, Venus in furs by L. von Sacher-Masoch. op.cit. vii-xxviii.

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Part II Justice, Responsibility, and War

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Never Just, Always Evil: The View of Warfare in the Writings of the Ante-Nicene Fathers Peter Day No higher religion can do without the images which are taken from war, and on this account it cannot dispense with “warriors.” Whether a religion allows itself to be determined by these necessities, by becoming engaged more and more in the military and its forms, is a question the answer to which always reveals an important part of the history of religion.1 1.

Conditions for a Just War The theologian Thomas Aquinas, writing in the thirteenth century, distilled the church’s attitudes towards conflict and warfare into three basic conditions that he believed must be met if a war was to be considered “just” by Christians. These conditions can be summarised as follows: 1) Warfare must be entered into only on the authority of the sovereign. 2) That the cause must be just. 3) The belligerents should have a rightful intention. Such definitions subsequently came to be the basis of the prevalent Christian conviction that war, when waged under strict guidelines, can be considered both just and right. Such a view of a “just” war stems from the argument that Christians might pursue conflict if its aim is to eliminate greater evils than conflict itself. However, before the “Christianisation” of the Roman Empire under Constantine in the Fourth Century, Christian writers demonstrated a very different attitude to conflict, and particularly to the involvement of Christians in the pursuit of war. 2.

The Sovereign’s Sanction Aquinas had stated that war could only be sanctioned by the sovereign power of the state. Given the political landscape of the West at the time, Aquinas assumed that any such heads of state would themselves be Christians. However, in the centuries between the birth of the church and the conversion of Constantine this was not the case. During the first three centuries of the church the Christian’s attitude towards the edicts of ruling powers was above all determined by the New Testament, and particularly by the Gospels. The apostle Paul emphasises the Christian obligation to “Obey the governing authorities, because there is no authority except for God and so whatever authorities that exist have been appointed by God.”2 However, Mark’s Gospel records Jesus’ instruction to his followers that they should “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”3 Here the reference to

58 Never Just, Always Evil ____________________________________________________________ “Caesar” denoted the power and authority of the imperial throne, not just the person who occupied it at any one time. As such Christians were under an obligation to discern which imperial statutes were inoffensive to the faith and which were not, and then to act on them accordingly. However, Christians were not called to be rebels or take direct action against ruling bodies, but rather to be examples of peace and love for the furtherance of the “good news” of Christ. The apostle Peter had encouraged Christians to “Behave honourably… so that they can see for themselves what moral lives you lead, and when the day of reckoning comes, give thanks to God for the things which now make them denounce you as criminals.”4 The possibility of “fence sitting” was therefore not an option for a Christian because as the Gospels warn, “No one can be the slave of two masters: he will either hate the first and love the second, or be attached to the first and despise the second.”5 Ultimately for Christians the only sovereign to whom they owed allegiance was Christ their “king.” Any other “worldly” authorities were consequently secondary considerations, for as Origen (c. 185-254) notes, anything a Christian did should be “For the sake of Jesus who is our leader.”6 This often put Christians in an uncomfortable situation; Christianity at the time was a small religion in a very large empire. They were often treated with suspicion and could face outright hostility from their pagan neighbours. Peter’s reference to being treated like criminals had a solid grounding. Celsus (2nd century), the pagan philosopher and vocal critic of Christianity sums up the popular view of early Christians, “The cult of Christ is a secret society whose members huddle together in corners for fear of being brought to trial and punishment.”7 Aside from their private meetings, which successive emperors feared from any group or guild,8 Christians were also singled out as different for their refusal to attend pagan public festivals. These included the theatre and the circus, where the violence of gladiatorial combat and the pitting of prisoners against wild beasts violated Christian beliefs on killing and respect for one’s neighbour. Christians also were careful to avoid any pagan polytheistic practices. This included idol worship, ritual prostitution and most significantly the worship of humans; epitomised by the cult of emperor worship. As Christianity grew and spread through the empire, it began to draw the attention of the educated classes, and like Celsus they were generally hostile to the faith. The Roman writer Tacitus describes the Christians as practising, “Abominations, superstition and a hatred of the human race.”9 Seutonius also describes Christianity as “A new and mischievous belief.”10 In addition to popular condemnation, various emperors sanctioned direct persecution of Christians during the early centuries of the church. For instance, Nero is said to have to have issued a damning statement against Christians,11 stating, “ut christiani non

Peter Day 59 ____________________________________________________________ sint,” that is, “let there not be Christians.”12 Under these circumstances obedience to Roman authority had always to be tempered by personal religious conviction on the part of the faithful Christian, even if that might well mean persecution and danger for believers. While the New Testament might have been considered the “gospel of peace” the Christian Bible contained the Jewish scriptures, too. In the pages of the Old Testament there is much mention of war, of how it was to be conducted and how God sanctions it, apparently to the point of wholesale slaughter by his people the Israelites. Such an attitude is summed up in the Book of Isaiah: “Yahweh advances like a hero, like a warrior he rouses his fire. He shouts he raises his war cry, he shows his might against his foes.”13 Origen argued that such stories should be interpreted allegorically and that Christians should not think of God encouraging war. However, Origen was not denying the conflict detailed in the Old Testament accounts; rather he considered it necessary to the history of Israel, which he believed had to be preserved so it might bring forth Jesus and a new Chapter in God’s plan of salvation. Hence he writes, To deny the Jews of old ... the right to march against their enemies, to wage war in order to protect their traditions ... would have been nothing short of consigning them to complete destruction when an enemy attacked their nation because their own law would have sapped their strength and would have forestalled their resistance.14 In Origen’s understanding, Christ had changed the old covenant to a new one, and summed up all the old commandments with but two: “To love the Lord your God with all your heart, with all your soul and with all your strength… [And] You must love your neighbour as yourself.”15 For Origen, and others, this not only changed the way Christians should view their religion, but it placed on them an obligation that would preclude violence to others. There are some references in the New Testament that appear to possibly condone warfare. The apocalyptic descriptions in the Book of Revelations describe a final battle between good and evil at the end of the world. But because of its complex nature and its mysterious imagery, it could not be taken as a clarion call to war for Christians, even though many believed the world would end soon, at the immanent return of Christ. There are also examples in St. Paul’s writings that appear to be warlike in tone,16 but as Harnack explains they are allegorical, having their origin in the Old Testament prophets. He argues,

60 Never Just, Always Evil ____________________________________________________________ Even its detailed execution shows at once that virtually everything, the weaponry and the battle, is meant in a spiritual sense. It states expressly that it is concerned with the “gospel of peace.” So the whole presentation is given the character of a lofty paradox, and the military element is essentially neutralised.17 Even Jesus himself, on occasion, makes use of the imagery of war, for instance saying, “Do not suppose I have come to bring peace to the earth; it is not peace I have come to bring, but a sword.”18 Also, he advises his disciples, “If you have no sword, sell your cloak and buy one.”19 However, it is the context of these sayings that is important. The bringing of a sword is clearly explained as causing division and not war. The more mysterious statement, given at the last supper, about buying a sword has been interpreted as an indication of the hardship and danger the apostles would face after the crucifixion and ascension of Jesus. While it is arguable that such New Testament passages might be interpreted differently, the early Patristic writers were certainly content to accept the gospel message as one of non-violence. Tertullian (c.160-225) the rigorist North African churchman, and son of a Roman centurion, argues this very point stating, “One soul cannot be due to two masters God and Caesar… How will a Christian man war, nay, how will he serve [In the military] even in peace without a sword, which the Lord has taken away.”20 When it came to a decision about fighting on behalf of ruling authorities the overriding concern for Christians must be their first master - Christ. Jesus had commanded his followers to love God and love their neighbour as themselves and warned people to “Put your sword in its place, for all who take up the sword will perish by the sword.”21 In Origen’s view, in the case of war, the edicts of human authority paled in comparison to God’s commands, “For we no longer take up sword against nation nor do we learn war any more, having become children of peace.”22 Tertullian, too, is adamant about the importance of Christian abstention from combat. Believing it to be forbidden by an over-riding commandment, he states, “God puts His interdict on every sort of mankilling by that one summary precept: ‘Thou shalt not kill.’”23 Origen, once described by Henri Crouzel as “The most articulate and eloquent pacifist in the early Christian Church,”24 believed that no Christian should fight under any circumstance, let alone under the authority of human government. Indeed he doubts the validity of defending a nation’s interests at all, seeing such national boundaries as a barrier to the evangelisation of all peoples. He states, “The existence of many kingdoms [has been] a hindrance to the spread of the doctrine of Jesus throughout the entire world… because of the necessity of men

Peter Day 61 ____________________________________________________________ everywhere engaging in war, and fighting on behalf of their native country.”25 The call to defend national interests was, in Lactantius’ (c. 240 - c. 320) understanding, often more to do with human greed, born out of the drive for worldly power and wealth, and as such anathema to Christians. He states, For what are the interests of our country, but the inconveniences of another state or nation? – That is, to extend the boundaries which are violently taken from others, to increase the power of the state, to improve the revenues – all these things are not virtues, but the overthrowing of virtues.26 For Origen, who came from the cosmopolitan city of Alexandria, national boundaries meant nothing in the face of Christ’s command to “Go, therefore and make disciples of all nations; baptise them in the name of the Father and of the Son and of the Holy Spirit.”27 Christianity was not to be a national religion, but a trans-national one. To ally oneself with one state or other was intrinsically divisive and therefore represented a threat to Christian unity and peace, and a danger to evangelisation. As such, many of the early Christian writers took the view that no Christian should be involved with those who waged war for any reason, especially as war so often involved the furtherance of national power or personal glory. Lactantius notes that such a pursuit demonstrated the evils of war and the inability of its instigators to distinguish right from wrong because of their rejection of the Gospel. He compares such a situation to those of previous times when men had, Ceased to worship God, and had begun to esteem the king in place of God…men lost the knowledge of good and evil… they began to contend with one another, and to plot, and to achieve for themselves glory from the shedding of human blood.28 Lactantius’ argument that warfare and violence were essentially ungodly activities flew in the face of imperial roman attitudes, and indeed to the attitudes of wider Roman society, where the army was held in high esteem and prowess in combat was considered a virtue. While Christians were often criticised and persecuted for their refusal to be involved with imperial pagan practices, [Mostly on the grounds that they were idolatrous] some pagans were becoming increasingly concerned with the implication of the growth of Christianity in more practical terms. Celsus was chiefly concerned with the

62 Never Just, Always Evil ____________________________________________________________ preservation of the Empire, believing it to be the epitome of civilized society and thus something to be preserved at all costs. Celsus duly calls for all the citizens of the Empire to be prepared to do their duty in its defence. His argument, preserved in Origen’s later reply to his antiChristian allegations, states that We are citizens of a particular empire with a particular set of laws, and it behooves the Christians at least to recognise their duties within the present context: namely, to help the emperor in his mission to provide for the common good; to co-operate with him in what is right and to fight for him if it becomes necessary, as though we were all soldiers or fellow generals.29 Lactantius, however, is reproachful in the face of demands such as those voiced by Celsus. He alleges that when pagans “are speaking of the duties relating to warfare, all that discourse is accommodated neither to justice nor to true virtue.”30 Christians who rejected the notion that the Roman state and its defenders such as Celsus held the intellectual monopoly on such matters could recall St. Paul’s words to the Corinthian church: “Do you not see how God has shown up human wisdom as folly?”31 Celsus’ feared that a growing population of Christians would damage both Roman society and religious practices, not least because he believed Christianity to be an affront to the gods that protected and maintained the Roman state. On a purely practical level, he considered that having a group that preached pacifism within the empire might leave it with a decreasing capacity to defend itself. Consequently he asks, If the Romans could be persuaded by you and were to give up our laws and customs and call on the name of your Most High God to come and fight on our side, would we no longer have need for a military defence? Would your God preserve the empire?32 Origen, the faithful Christian is of course in no doubt to the answer and confidently responds that “If all the Romans… embrace the Christian faith, they will, when they pray, overcome their enemies; or rather they would not war at all; being guarded by that divine power that promised to save five entire cities for the sake of fifty just persons.”33 If the authorities urged citizens to go to war in the pursuance of state ends, the Christian would, in the view of the many early writers, have to decline regardless of the possible personal consequences. Such writers argued that the advent of Christ had brought about a new way of living,

Peter Day 63 ____________________________________________________________ one that would see the fulfilment of the Jewish prophetic hopes of peace. Justin Martyr (c. 100 – c.165) speaks for Christians when he describes this change: “We who were filled with war, and mutual slaughter, and every wickedness, have each… changed our warlike weapons - our swords into ploughshares, and our spears into implements of tillage.”34 Therefore not only should Christians refuse to fight, but to attempt to compel them would be pointless as they would actually prove to be a liability to any army commander. As Irenaeus (c.130 - c. 200) explains, Christians are “unaccustomed to fighting. But when smitten, offer also the other cheek.”35 Tertullian also remarks on this point, If, we are enjoined, then, to love our enemies… whom have we to hate? If injured, we are forbidden to retaliate, lest we become as bad ourselves. Who can suffer injury at our hands… we who so willingly yield ourselves to the sword. In our religion [it is] counted better to be slain than to slay.36 This was, in Clement of Alexandria’s (c. 150 – c. 215) view, because of adherence to Christ’s teaching, and the role of the Church as a teaching instrument. He states that, “For it is not in war, but in peace that we are trained. War needs great preparation… but peace and love, simple and quiet sisters, require no arms nor excessive preparation.”37 3.

Just Cause? St. Thomas Aquinas’ concern that war should only be waged with “just cause” would have appeared strange to the early Christian community. From their point of view the Christian could claim no case from which violence or war could be justified. Once again Tertullian has cause to comment: It was not considered the place of the Christian to exact revenge for any personal injustice suffered, let alone a national one. For the Christian any such judgement was regarded rightly as the prerogative of God alone. Tertullian considered that the response of any persecuted Christian should be fortitude and forbearance. He states, “Let outrageousness be wearied out by your patience. Whatever that blow may be, conjoined with pain and contumely, it shall receive a heavier one from the Lord.”39 Origen, who devoted an entire book to the notion of Christian martyrdom, understood that Christ had directly instituted such behaviour stating that

64 Never Just, Always Evil ____________________________________________________________ He [Christ] nowhere teaches that it is right for His own disciples to offer violence to anyone, however wicked. For He did not deem it in keeping with such laws as His, which were derived from a diviner source, to allow the killing of any individual whatsoever… Christians [have] adopted laws of so exceedingly mild a character as not to allow them, when it was their fate to be slain as sheep, on any occasion to resist their persecutors.40 It was assumed therefore that Christians should expect hardships for their views and associations, and patiently suffer persecution. For as Jesus had said, “If they persecuted me they will persecute you too.”41 For the early followers of Christ, his teachings made worldly wisdom seem foolish, and overruled previous standards of behaviour, even those that appeared to previously have been sanctioned by God. Tertullian remarks that Christ, “actually prohibits the reprisals which the Creator permitted in requiring ‘An eye for an eye, and a tooth for a tooth.’”42 In holding such views, no appeal to human laws or accepted norms should persuade the Christian to take up arms on behalf of anyone, let alone a human authority such as the Roman state. Origen, too, noting the change in the attitudes and behaviour brought about through Christ, and subsequently expected of each Christian believer, states, “Providence, which of old gave the law and has now given the Gospel of Jesus Christ.”43 For Christians the advent of Christ had marked the change of “season” spoken of in Ecclesiastes: “There is a season for everything, a time for every occupation under heaven… a time for war, a time for peace.”44 Under these circumstances no believer could participate in violence without participating in evil, and any such participation could not be excused on account of external compulsion, imperial or otherwise. Anyone doing so was to be considered as personally responsible and accordingly would be accountable for their actions. Once again Tertullian is very clear on this point. He argues that “The precept is absolute, that evil is not to be repaid with evil.”45 The conclusion that all warfare and violence was to be considered as an expression of evil led Lanctantius to state that for the Christian it was “Unlawful not only himself to commit slaughter… but to be present with those who do it, and to behold it!”46 This view was born out in the official Church rulings of the time, concerning military service for Christians. Despite the acknowledged presence of Christian believers within the Roman army, Christian involvement with the military was strongly condemned. In Tertullian’s view, “The Lord… in disarming Peter disarmed every soldier.”47 By the end of the second century the Church’s rulings forbade Christians to enter the military, but did as a last resort,

Peter Day 65 ____________________________________________________________ allow soldiers who converted to remain in service as long as they undertook to avoid pagan practice and oaths, and most importantly not to take up arms and actually fight! As Hippolytus (c.170 – c.236) records in his “Apostolic Tradition.” A soldier of the civil authority must be taught not to kill men and refuse to do so if he is commanded, and to refuse to take an oath. If he is unwilling to comply he must be rejected for baptism. A military commander… must resign or be rejected. [Finally] If a… believer seeks to become a soldier, he must be rejected for he has despised God.48 One reason for such a harsh approach to Christians who were in military service was that, apart from those who converted after joining the army, the vast majority of Christians at arms were volunteers. The Christian refusal to do military service was just one of many condemnations levelled by the pagans of the empire, and as such was only a factor in Christian persecution. Refusal to participate in pagan religious practice and the worship of the emperor were much more likely to cause persecution and martyrdom among Christian communities. While military service often demanded participation in idolatrous practices, abhorrent to the Christian faith, it was rare that any Christian would have been compelled into the army in the first place. As Harnack observes, Only in very special cases of need were individuals forced into military service. If the gaps in the ranks became too great, then by way of exception gladiators, slaves, barbarians, robbers and riffraff were installed. As a rule, the little people were able to avoid military service.49 Therefore, despite the fact that the pagans often considered Christians as “riffraff” or even criminals, Christians in the Roman army were likely to be soldiers by their own intention. This is what caused the likes of Hippolytus to frown on the Christian involvement with the military. Indeed, Tertullian thought that the promises made at baptism directly clashed with the oath of allegiance made by a soldier. He argues, “There is no agreement between the divine and the human sacrament.”50 Nor is there agreement between “the standard of Christ and the standard of the devil, the camp of light and the camp of darkness. One soul cannot be due to two masters – God and Caesar.”51

66 Never Just, Always Evil ____________________________________________________________ 4.

Rightful Intentions? Aquinas’ final point that Christian combatants should only engage in fighting with “rightful intentions” is, once again, an alien concept to the early Church Fathers. Origen asserts that Christians always contributed to the defence of the Empire, but on a spiritual rather than physical level: “We do not indeed fight under him [The emperor], although he require it; but we fight on his behalf, forming a special army an army of piety - by offering our prayers to God.”52 Origen thought that the greatest thing that Christians could do was pray for deliverance from war, and from their enemies. He is in no doubt that this is a worthwhile endeavour, and he states, “Our prayers vanquish all demons that stir up war… We in this way are much more helpful to the kings then those who go into the field to fight for them.”53 Origen’s mention of “demons” highlights the prevailing view that warfare, strife and killing were all tools of the devil by which he sought to keep men from loving one another and from knowing the love of God. As such it would be “spiritual battle,” not physical warfare that was to be decisive in the struggle for peace. For Clement of Alexandria the only “right intent” for any Christian, was to bring about peace, not by means of war but through, “The one instrument of peace… the Word alone, by whom we honour God.”54 Therefore it was only through example and evangelisation that a Christian should seek to change things. Accordingly, the Christian should not fight their enemies but change their attitude. As Clement of Alexandria further argues, “An enemy must be aided, that he may not continue an enemy. For by help good feeling is compacted, and enmity dissolved.”55 For Christian writers such a sentiment was the perfect reflection of Christ’s words at the “sermon on the mount”: “Blessed are the peacemakers: They shall be recognised as children of God.”56 5.

The Winds of Change In 312CE the Emperor Constantine won a victory over Maxentius at the Milvian Bridge. He was convinced that he had “won by the prompting of the deity,”57 and that his military success had been due to the Christian “CR”58 monogram painted on his soldiers shields, supposedly under his instruction. After this Constantine became interested in the faith; possibly because he realised that a considerable number of his serving soldiers were themselves Christian, he was eventually baptised, albeit near the very end of his life. With the change in imperial attitudes, Christians were suddenly seen in a much more favourable light within the empire. Sensing this change in fortune, some Christians began to urge support for the emperor in the hope that it would see further benefits for believers, would spread the faith, and spell the end for the periodic bloody persecution of believers.

Peter Day 67 ____________________________________________________________ At the synod of Arles in August of 314 CE, Christian leaders in the West gave Constantine their support in his attempts to protect and defend the Empire. In a declaration there, a concession was made that allowed Christians to stay in the army. Indeed it was not simply a relaxation of previous rules on the subject, but represented a complete turnaround. Canon three of the synod states, “Concerning those, who throw down their arms... we have decreed that they should be kept from communion.”59 Where before military service had been seen as tantamount to apostasy, now it was to be considered a Christian duty! As Harnack notes, The church at Arles not only disapproved of the occasional practice of desertion by Christian soldiers on account of their faith, but went so far as to place it under the fearful punishment of excommunication… The church by this decree fundamentally revised its previous theoretical position concerning the army and war. The Christian soldier would not be excluded from the church.60 Gradually the Church began to grow in status within the empire, and as it grew, Christians began to see the imperial use of force in a different light. By October 324CE emperor Constantine had declared the official religion of the empire to be Christian; suddenly it was a benefit rather than a detriment to profess the Christian faith, and many of those who sought political power embraced the religion. This included those in the military, and those officers and governors that commanded it. As Harnack further notes, with Christians in positions of power within the government and army of what was now a Christian empire, “The union of church and state… could not be more intimate. The church made common cause with the emperor to keep soldiers with the flag.”61 The church consequently began to revise its teachings on Christian military service and involvement with war, and looked to Scripture to supply justification for it. 6.

Militia Christi – the army of Christ It is ironic that it should be warfare that dispersed Christians both within and beyond the borders of the Roman Empire. As Robin Lane Fox remarks on one such example, Wars… were effective spreaders of the faith… between Rome and her eastern neighbours. In the Near East, the 240s and 250s saw resounding victories by the Persian monarchs and the consequent return of prisoners across

68 Never Just, Always Evil ____________________________________________________________ their borders among the spoils. Their captives included Christians, inadvertent imports from the West.62 It is equally ironic that the Roman army proved a fertile ground for conversion to Christianity. Despite the prohibition on the military profession, in practice it was rarely enforced. After Constantine’s conversion and the new favourable position of Christians, the army was seen as a good profession for a Christian and those that had left the military on grounds of their faith were offered an armistice to the point where they could resume their former rank. To bolster the conviction of Christians in the army, the church began to interpret those New Testament passages that might allow for warfare and military service in a more positive light. Suddenly the notion of putting on the, “Armour of God”63 was read in a more literal way. Paul’s descriptions of doing battle for God lost much of their spiritual context and Christians in the military began to see themselves as truly soldiers of Christ.64 The final irony of the transformation of the Christian church from persecuted pacifists to an imperial authority, is that it was the writings of the same early Fathers who denounced warfare and military involvement that were used to promote Christian soldiering. The Fathers had carried on the New Testament tradition of using the language of warfare to denote the spiritual struggle of the Christian believer. As Harnack notes, “We find in the earliest Christian writings all the following: the soldier, weapons of various kinds, wages, discipline, the wreath, gifts (donativa), imprisonment, pillage…”65 Origen and Tertullian, in common with many other writers, employ the notion of the “militia Christi” – “the army of Christ”-- to extol Christian virtues such as obedience, strength and fortitude in the “battle” to win souls for Christ. Clement of Rome (fl. c.96) is more explicit in his military comparisons: “Let us then men and brethren, with all energy act the part of soldiers in accordance with His commandments.”66 Ignatius (c.35c.107), too, makes a direct link between the Christian life and that of a soldier in his letter to Polycarp: “Please ye Him under whom ye fight and from whom you receive your wages.”67 The church used the notion of being “soldiers for Christ” out of its metaphorical and spiritual context and used the concept to define the role for Christians in the Roman army. With the notion of the “militia Christi” established as a warrant for the military, St Augustine of Hippo (354-430) was confident that the Christian state could be justified in using force. With this in mind he was sure that the empire had an Obligation to protect people from the destruction that others do, to avenge injuries, and to restore what has been unjustly taken. Rulers should be prepared to use

Peter Day 69 ____________________________________________________________ force then, to maintain a peaceful and just order in society; and soldiers - servants of the law - can rightly obey a ruler’s orders to this end.68 Augustine argued that Christians had a duty to serve the Roman state, to preserve the “city of God.” In doing so he unwittingly echoes Celsus’ call for Christians to do their duty for the empire. In Celsus’ time Christians had refused military service on the grounds that it clashed with their faith; now they were advised by church leaders like Augustine not to suppose “That a person who serves in the army cannot be pleasing to God. The holy David, a soldier, was given high praise by our Lord.” And “The Lord said to a Centurion, “Amen, I say to you, I have not found such faith in Israel.”69 Augustine therefore acknowledged that while Christians were called to be “peacemakers,”70 the Christian state needed to be able to “Wage war in a peaceable spirit to bring back the benefits of peace.”71 Thus the church as a whole was to fight on two levels, spiritually and physically, too. Augustine asserts that this is the task of the citizens of the Christian empire, and assures Christians in the army that Others fight for you against invisible enemies by praying; you work for them against visible barbarians by fighting. We wish that everybody shared the one faith since then the work would be less and the devil with his angels would be conquered more easily.72 By such tacit identification of “enemy” nations with the devil, the way was paved for later churchmen to argue in favour of crusades and repression against those who held different views to that of “Christendom.” 7.

Conclusion From the time that the Roman empire became a “Christian” state, the concept of fighting a just war became a part of the church’s teaching, later distilled into three guiding principles by Thomas Aquinas, and modified and redefined by churches, empires and states ever since. The union of church and state often saw evangelisation mated with force to coerce the conversion of “unbelievers” and “heretics,” an idea that would have been unthinkable to Christians in the first three centuries. Any argument that war is justified, if it seeks to “eliminate greater evils than conflict itself” was discounted by Clement of Alexandria: “Above all, Christians are not allowed to correct with violence the delinquencies of sins.”73 Ironically, Christian churches of opposing creed and denomination have often pursued conflict with other Christians under the pretext of a

70 Never Just, Always Evil ____________________________________________________________ just war, believing that they have “just cause” and “rightful intention” – always with God on their side. While Christians today still revere the early Church Fathers for their faith and wisdom, and admit their role in shaping Christian belief, doctrine and tradition, their memory and interpretation is often selective. The words of Cyprian (c. 300) and Tertullian are as pertinent today as they were in their own times. Cyprian wrote of Wars scattered all over the earth with the bloody horror of camps. The whole world is wet with mutual blood; and murder, which in the case of an individual is admitted to be a crime, is called a virtue when it is committed wholesale. Impunity is claimed for the wicked deeds, not on the plea they are guiltless, but because the cruelty is perpetrated on a grand scale.74 While Christians have argued over the legitimacy of military service and the waging of war for centuries, Tertullian puts the pursuit of war into its starkest context. Arguing against any Christian receiving an award of laurels for military service or bravery, he begs the question of what such an accolade truly stands for: “Is the military laurel of triumph made of leaves or of corpses? Is it adorned with ribbons, or with tombs? Is it bedewed with ointments or with the tears of wives and mothers?”75 While attitudes to war change over time, the misery and suffering caused by conflict do not.

1

Notes

Harnack, 1981, 27-28. 2 Rom. 13:1. All biblical quotations are from The New Jerusalem Bible, 1990. 3 Mk. 12:13-17. 4 1 Pt. 2:12. 5 Mt. 6:24. 6 See Against Celsus V.33 in Roberts and Donaldson, 1994b, 558. 7 See the introduction to On the true doctrine in Hoffmann, 1987, 53. 8 Christianity was regarded as a “collegium illicitum” an illegal association. The term “ecclesia” or “church” was used already used by some political groups and as such aroused suspicion from the Roman authorities.

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Tacitus, 1956, 354. It should be noted here that it is unclear if Tacitus implies that Christians had a hatred of the human race, or if they received the hatred of the human race. 10 Suetonius, 1979, 217. 11 Tertullian mentions Nero’s proscribed legal decree against Christians in his Apology-Book V. It is unclear, however, if it was ever truly a legal document and its enforcement seems to have been patchy. Legal persecution of Christians throughout the empire did not occur on a wide scale until later centuries, beginning with Septimus Severus’ Imperial edict against Christians in 202CE. 12 Referred to by Tertullian, see Roberts and Donaldson, 1993b, 22. 13 Isa. 42:13. 14 See Against Celsus in Roberts and Donaldson, 1994b, 621. 15 Mk. 12:30-31. 16 See, for example: 1 Thess. 5:8; 2 Cor. 6:7; Rom. 6:13-14, 23; 13:12; Eph. 6:10-18. 17 Harnack, 1981, 35-6. 18 Mt. 10:34. Compare the explicit usage of sword by Matthew to Luke’s account of the event where he simply describes “division”: “Do you suppose that I am here to bring peace on earth? No, I tell you, but rather division.” (Lk. 12.51) 19 Lk. 22:36. 20 See Bk. II On idolatry. XIX in Roberts and Donaldson, 1993b, 73. 21 Mt. 26:52. 22 See Against Celsus. V.33 in Roberts and Donaldson, 1994b, 558. 23 See The shows. V.2 in Roberts and Donaldson, 1993b, 80. 24 Quoted in Helgeland, Daly & Burns, 1985, 39. 25 See Against Celsus. II.30 in Roberts and Donaldson, 1994b, 444. 26 See Divine institutes. VI.6 in Roberts and Donaldson, 1994c, 169. 27 Mt. 28:19. 28 See Divine institutes. V.6 in Roberts and Donaldson, 1994c, 141. 29 See On the true doctrine. X in Hoffmann, 1987, 125-126. 30 See Divine institutes. VI.6 in Roberts and Donaldson, 1994c, 169. 31 1 Cor. 1:20. 32 See On the true doctrine. X in Hoffmann, 1987, 125. 33 See Against Celsus. VIII.70 in 1994b, 666. 34 See Dialogue with Trypho. CX in Roberts and Donaldson, 1993a, 254. 35 See Against heresies. XXXIV.4 in Roberts and Donaldson, 1993a, 512. 36 See Apology. XXXVII in Roberts and Donaldson, 1993b, 45. 37 See The instructor. I.12 in Roberts and Donaldson, 1994a, 234-235. 38 See Of patience. VI in Roberts and Donaldson, 1993b, 711. 39 See Of patience. VIII in Roberts and Donaldson, 1993b, 712. 40 See Against Celsus. III.7 in Roberts and Donaldson, 1994b, 467.

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Jn. 15:20. See Against Marcion. IV.16 in Roberts and Donaldson, 1993b, 370. 43 See Against celsus.VI.26 in Roberts and Donaldson, 1994b, 621. 44 Eccl. 3:1,8. 45 See Of patience. X, in Roberts and Donaldson, 1993b, 713. 46 See Divine institutes. V.18 in Roberts and Donaldson, 1994c, 153. 47 See On idolatry. XIX, Roberts and Donaldson, 1993b, 73. 48 See Apostolic tradition. 16 in Bercot,1998, 681. 49 Harnack, 1981, 66-67. 50 The Latin “Sacramentum” can mean among other things a military oath. 51 See On idolatry. 19 in Robertson and Donaldson, 1993b, 73. 52 See Against Celsus.VIII.73 in Roberts and Donaldson, 1994b, 668. 53 Ibid. 54 See The instructor. II.4 in Roberts and Donaldson, 1994a, 249. 55 See Miscellanies. II.19, in Roberts and Donaldson, 1994a, 370. 56 Mt. 5:9, Cf. Lk. 6:27-31. 57 Chadwick, 1993, 125. 58 The first letters of the Greek for “Christ.” 59 Quoted in Helgeland et al, 1985, 71. The full text seems to imply the throwing down of arms in time of peace. This has caused some controversy over its correct interpretation. However, here it is enough to say that Christians are recorded as participating in military service by the implication of them carrying arms at all. 60 Harnack, 1981, 100. 61 Harnack, 1981, 101. 62 Fox, 1986, 281. 63 Eph. 6:11,13. 64 Cf. 2 Tim. 1:3. 65 Harnack, 1981, 39. 66 st 1 Epistle in Roberts and Donaldson, 1993a, 15. 67 Epistle to Polycarpin Roberts and Donaldson, 1993a, 95. 68 Quoted in Allen, 1991, 31. 69 Quoted in Helgeland et al, 1985, 76-77 70 Mt. 5:9. 71 Quoted in Allen, 1991, 31. 72 Correspondence with Boniface, in Helgeland et al, 1985, 75. 73 See Maximus, Sermon 55 (Frag) in Roberts and Donaldson, 1994a, 581. 74 Epistles. I.6, Trans, Wallis, 1995, A.N.F. Vol. V, 277. 75 See The chaplet in Roberts and Donaldson, 1993b, 101. 42

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References Allen, J.L. (1991), War: A primer for Christians. Nashville: Abingdon Press. Bercot, D.W. (ed.) (1998), A dictionary of early Christian beliefs. Mass.: Hendrickson. Chadwick, H. (1993), Penguin history of the early church. London: Penguin Books. Fox, R.L. (1988), Pagans and Christians – In the Mediterranean world from the second century A.D. to the conversion of Constantine. London: Penguin Books. Harnack, A. (1981), Militia Christi – The Christian religion and the military in the first three centuries. D. Gracie (trans.) Philadelphia: Fortress Press. Helgeland, J., R.J. Daly and J.P. Burns (1985), Christians and the military - The early experience. London: S.C.M. Press. Hoffmann, R.J. (1987), Celsus on the true doctrine - A discourse against the Christians. New York: Oxford University Press. (1990), The new Jerusalem bible. London: Darton, Longman & Todd. Roberts, A. and J. Donaldson. (eds.) (1993a), The Ante-Nicene fathers, vol. 1. Edinburgh: T & T Clark. ── (eds.) (1994a), The Ante-Nicene fathers, vol. 2. Edinburgh: T & T Clark. ── (1993b), The Ante-Nicene fathers, vol. 3. Edinburgh: T & T Clark. ── (1994b), The Ante-Nicene Fathers, vol. 4. Edinburgh: T & T Clark. ── (eds.) (1995), The Ante-Nicene fathers, vol. 5. Edinburgh: T & T Clark. ── (eds.) (1994c), The Ante-Nicene fathers, vol. 7. Edinburgh: T & T Clark. Smith, M. and R.J. Hoffmann. (1993), What the bible really says. New York: Harper Collins. Suetonius, G. (1979), The twelve Caesars. R. Graves (trans.) Aylesbury: Penguin Books. Tacitus, C. (1956), The annals of imperial Rome. M. Grant (trans.) Bristol: Penguin Books.

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International Justice, Intervention, and the Prevention of Evil Bill Wringe 1.

Introduction Do the governments of Western liberal democracies have a right or, under certain circumstances, an obligation to intervene in the internal affairs of other states, perhaps by military means, in order to prevent the subjects of those states from suffering persecution from their own governments? This is not merely an abstract theoretical question. The idea that such an obligation exists was widely appealed to in justifying NATO intervention in the Kosovo crisis of 1999-2000. It also lies behind one widespread left-wing reaction to recent events in Afghanistan: namely that although the events of September 11, 2001 did not provide sufficient justification for American attacks on the Afghanistan, the Taliban's treatment of Afghan citizens and in particular of women did provide such a justification. In the event of Western military action in Iraq, we can expect similar arguments to be advanced as a means of gathering support from individuals who might otherwise be inclined to be suspicious of the motives for such intervention and pessimistic about its likely results. To say that a certain right or obligation is widely believed to exist, or (which is not necessarily the same thing) that its existence is frequently appealed to in the course of political debate, is not to show that it does in fact exist. Still less is it to give any account of any grounds there might be for believing that it exists, or to say anything about the circumstances under which it applies, or any limitations which it might be subject to. The importance of the last of these issues is difficult to deny. To deal with it we need to have an account of what the right or obligation is based on. Since this is the sort of question which philosophers typically deal with, we seem to have a case for thinking that we have found an area in which philosophy has an important practical bearing. This provides, perhaps, some justification for engaging in philosophical discussion at a time and under circumstances in which it might otherwise seem inappropriate. My aim in this chapter is to discuss a number of arguments for and against thinking that states have a right to intervene in the internal affairs of other states in order to prevent large-scale violations of human rights. I shall start by looking at one fairly intuitive argument which seems to support a very strong conclusion - namely that states sometimes have an obligation to intervene in the affairs of other states for these reasons. Although the argument seems cogent at first sight, I shall try to show that closer examination shows it to have serious weaknesses. I then look at two arguments that purport to show that such intervention is never justified.

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____________________________________________________________ The first of these, which approaches the issue from a consequentialist perspective, is to be found in J.S. Mill's essay “A Few Words on NonIntervention.”1 I shall argue that this argument fails because - like many consequentialist arguments, it does not take rights seriously enough. I shall then examine John Rawls’ recent book, The Law of Peoples,2 in order to see whether it provides a more satisfactory response to the question under discussion. Disappointingly, Rawls does not commit himself strongly to a clear view about the legitimacy of intervention. However, his official view seems to provide an argument against the existence of a right to intervene. Since this argument is not consequentialist in character, it is not vulnerable to the objections which undermined Mill's position. However, it suffers from weaknesses of its own. In particular, Rawls' account of how the obligations of states in the international field are to be grounded is unstable, because it makes morally arbitrary factors relevant to determining moral obligations. If the account is amended so as to avoid this objection, we end up with an argument that appears to show that a right of intervention might exist after all. 2.

The Intuitive Line of Argument For most of this chapter I shall be looking at what representatives of two central traditions in contemporary political philosophy can contribute to the debate about armed intervention. However, before doing so, I want to consider a line of thought which suggests that we can answer questions about the legitimacy of armed intervention without engaging in any high-level philosophical theorising. The suggestion is that we can see that armed intervention is likely to be not only morally justified, but also morally required under certain circumstances, provided we think carefully about what is involved in thinking about what it means to say that something is a human right. One reason why the view is important is that it is widely accepted. Earlier I mentioned that the idea that armed intervention in the internal affairs of other states was widely accepted. What I did not say, but what seems nonetheless to be true, is that many of the people who hold it do not hold it unreflectively: they think that it is a belief which can be provided with some sort of rationale. The purpose of this section is to try to articulate and assess that rationale. If it is a good one, then there would be no need for any further philosophical reflection about whether armed intervention is justified. Someone who holds a view of the sort that I shall be considering need not be guilty of holding a simplistic view about the morality of intervening in the affairs of other states. As I shall try to make clear, the reverse is true. The line of argument that I shall be considering is supposed to show that, under certain circumstances, intervention would be morally

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____________________________________________________________ required. It might still be extremely difficult to tell whether these circumstances applied in any particular case where intervention might be proposed. I shall begin by setting out and commenting on three constraints on the argument that I am trying to set out. The first constraint is that it should appeal to no controversial factual or ethical premises, beyond those that one is necessarily committed to in speaking of human rights at all. The second is that it should be capable of being set out using a minimum of philosophical technicalities. The third is that it should seem reasonably cogent, at least at first sight. The argument needs to meet these three constraints in order for the claim that it is the articulation of a widely held view to be at all plausible. This is particularly obvious in the case of the first constraint. A widely held belief is unlikely to be based on premises that are not widely shared or on a line of reasoning that is obviously fallacious. Arguments that are obviously fallacious tend to be exposed as such, at least when they concern matters of public debate. Finally, the idea that the argument should employ a minimum of technical sophistication relies on the thought that philosophers tend to disagree among themselves in any case where philosophical sophistication is required. If philosophers cannot agree in such cases, no one else is likely to agree about them either So any line of argument that relies on a great deal of technical sophistication is for that reason likely to be controversial. However, although the argument that I shall be examining is not supposed to require a great deal of philosophical technicality, there are two reasons why it is not entirely philosophically innocent either. The first is that it requires the use of one semi-technical philosophical notion - that of a prima facie obligation - which I shall explain in a moment. The second is that no argument that appeals to the notion of a human right can be philosophically innocent. We can distinguish two reasons why this is so. The first, and less interesting of the two, is this. The notions of rights in general and human rights in particular have attracted philosophical attention for several centuries.3 Unsurprisingly, different philosophers have given different analyses of what it is for someone to have any sort of a right, different accounts of what it is for a right to be a human right, and different lists of what rights are human rights. However, this does not matter for my purposes. I shall not be relying on any particular account of what rights are human rights - provided that it is agreed that there are some. Furthermore the claims that I am making about rights are intended (with one exception, which I shall note) to be as uncontroversial as possible. A more significant reason why appeals to human rights cannot be entirely philosophically innocent is this. Someone who claims that the

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____________________________________________________________ notion of a human right is coherent and that there are any human rights at all is committed to two substantive philosophical views. This is undeniable. However it is not important for my purposes, since I am not trying to put forward an argument which is supposed to establish on uncontroversial philosophical grounds that such rights do exist. Instead, I am interested in an argument that is supposed to show that once we do accept that the notion of a human right has some sort of content, we are committed to further views about the legitimacy of intervention. If I were then going to argue for a right of intervention based on such an appeal, it might be incumbent upon me to produce a philosophical defence of the notion of a human right. But in fact I shall be claiming that even if the appeal to human rights can be given an adequate grounding, it does not support the kind of view about intervention which it might at first sight seem to. As I mentioned before the argument, I have in mind appeals to one semi-technical notion - that of a prima facie obligation. A prima facie obligation is an obligation that can be cancelled out under certain circumstances. For example, suppose I promise to meet you on the Charles Bridge at two o’ clock tomorrow. I now have an obligation to be on the Charles Bridge at that time. But the obligation is only prima facie. There are many possible circumstances under which it would lapse. For example, if I were the only witness to a serious crime taking place and quarter to two on my way to our rendezvous, and took it upon myself to report what I had witnessed to the police straight away, I could not be condemned for missing our appointment. Nor could I if circumstances beyond my control made it physically impossible for me to be at the Charles Bridge at the right time – for example, if I were run down by a tram. I can now set out the argument. It relies on a fairly uncontroversial analysis of the notion of a right as such, a particular interpretation of the phrase “human right,” and two widely shared empirical premises. The analysis of the notion of a right I have in mind is this: to say that someone has a right to something is not just to say that s/he ought to have it, but also that some other person or agent has a prima facie obligation to protect their enjoyment of it.4 Two comments on this analysis are worth making. The first is that where rights in general are concerned, the analysis does not say anything specific about which people the prima facie obligation devolves upon. The answer to this will depend on what sort of a right is being considered. Take my right, as a British citizen, to vote in a general election. The fact that I have such a right entails that if someone tries to prevent me from voting, there is at least one individual who has a prima facie obligation to prevent him or her from preventing me. But it does not entail that everyone in the world, or even every British citizen, or indeed every British citizen who is aware of my

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____________________________________________________________ situation is under such an obligation. Furthermore, since the obligation is a prima facie obligation, there may be circumstances under which the obligation lapses. So much for rights in general. However, not all rights can reasonably be regarded as human rights. My right to vote in British general elections is not a human right (though my right to some form of representation in government may be.) So in order to make any further progress we need to ask what is distinctive of human rights. Human rights typically have three features. First, they have a high degree of generality. Second and relatedly, they are rights that I possess in virtue of being a human being, rather than in virtue of some more specific qualification. Third, they are rights whose observance plays a central role enabling us to live a recognisably human existence. This third feature of human rights is somewhat vague. People might well differ about what features of a life make it recognisably human. Some accounts might make the exercise of a capacity for rationality central, while others might emphasise the satisfaction of a wider range of social, intellectual and emotional needs.5 Further differences about the circumstances under which we could expect such needs to be satisfied are also likely. These differences can clearly be expected to have an impact on exactly which rights are recognised as human rights; so if we were trying to derive a list of human rights, we would clearly have to give a full account of them. For the purposes of the current argument, though, this is unnecessary: the argument does not turn on some particular conception of what constitutes a recognisably human existence, but on the connection between the notion of a human right and some such connection. The importance of human rights in enabling us to live a recognisably human life might reasonably be thought to have two consequences. First, the range of circumstances in which the prima facie obligation lapses is extremely narrow. In fact it is plausible that the only such circumstances are ones in which a particular agent is unable to carry out the obligation, and ones in which a conflict of rights is involved. Secondly the set of agents on whom the obligations devolve is as wide as it can possibly be. When we say that human rights are universal, we do not just mean that everyone possesses them, but also that everyone is under an obligation to uphold them, as far as is in his/her power. These analyses of what is entailed by describing someone as having a right to something and of what is added by describing that right as a human right constitute the specifically philosophical elements of the argument that is supposed to demonstrate that states are sometimes under an obligation to intervene in the affairs of other states by military means in order to prevent human rights violations. However, they can only come close to doing so in the presence of two further premises. One is that

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____________________________________________________________ warlike intervention in the affairs of a state can sometimes prevent violations of human rights. The second is that there are occasions on which no means short of warlike intervention can do so. Without the first premise, one could argue that states are released from the prima facie obligation to prevent human rights violations by the fact that they are incapable of doing so. Without the second premise one could argue that although they do have such an obligation, it is one which they ought to discharge by other, non-warlike means The two non-philosophical premises of the argument are not entirely uncontroversial. Both can be disputed in particular cases. Arguments about whether they are true may constitute a great deal of the substance of moral debate about particular cases where intervention is proposed. So, as I noted before, someone who thinks that the argument sketched here is a good one need not necessarily have a simplistic or monolithic view of the rights and wrongs of intervention in particular cases. (Furthermore, someone might accept the claims about rights in general and human rights in particular that I have outlined above but dispute the further premises not only in particular cases, but in every case. So the analysis of the argument that I have outlined might even be acceptable to a pacifist. This would be true if his/her pacifism was based on the belief that, in any situation where human rights could be protected by warlike means, they could be protected equally by non-warlike means.) However, although the premises are not uncontroversial in themselves, most people who believe that armed intervention is justifiable in some cases will accept them as true. So they may reasonably figure in an articulation of a commonly held view. The only people who would deny them are people who do not hold that view. Together with the claims about rights in general and human rights in particular that I outlined above, these two premises present us with an argument that seemingly shows that in some cases states will have an obligation to intervene militarily in the internal affairs of other states. Furthermore, it is reasonable to think that this argument, or something like it, underlies that common intuition that such intervention can be morally justified. It certainly satisfies the three criteria that I originally identified. It appeals to premises that are not highly controversial; it is reasonably compelling – at least at first sight; and it involves a minimum amount of philosophical technicality. (Someone might doubt this last claim because of the way in which the argument makes use of the notion of prima facie obligation. However, although this term may be on which does not belong to everyone's moral vocabulary, the idea that an apparent obligation may lapse or become less stringent under certain circumstances is one with which most of us are familiar). If the argument were watertight, there would be little else to say on the subject except by way of clarification.

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____________________________________________________________ The argument is not, however, watertight. There are three main problems with it. One, as I have already pointed out, is that not everyone would agree that military interventions are an effective way of protecting human rights in any situation. Someone who takes this view could support it by pointing out that the success of most actual attempts at humanitarian intervention is highly contestable. Responding to this objection would involve a detailed examination of the historical record which would be out of place in the present context. Still, even if an adequate response could be made, two further problems would remain. The first concerns something that might be regarded as a philosophical technicality. In giving an account of the notion of a right earlier on, I appealed to Mill's idea that to say someone has a right to something is to say that society “ought to protect (them) in the possession of it.”6 This idea is sufficiently widespread for the suggestion that it is part of what underlies a commonly held moral belief to be reasonable. Nevertheless, as I hinted earlier, it is not philosophically uncontroversial. An alternative account of rights exists. This is the account to be found in writers like Locke, who holds that to say that someone has a right to something is to say that that person is morally justified in attempting to punish another person who attempts to deprive them of the possession of it.7 On this view, someone's infringement of another person's rights does not impose any obligations on third parties, except perhaps the rather minimal obligation not to interfere with the individual who is trying to exact due punishment. This objection might be met by showing that Locke's conception of a right is inadequate in this context. One reason for thinking so is that an examination of the context of Locke's account rights shows that it is designed to make sense of the idea that human beings might have had rights of certain kinds even if societies did not exist. However, one might argue that Locke's account of rights is suspect for that very reason: the idea that human beings might have had rights independently of their belonging to any society is incoherent.8 Someone who held this view would think that any account of rights that suggested otherwise could not be sustained. However, this line of argument is undermined by the reflection that to call a particular right a human right seems to be saying (among other things) that it is a right that they possess independently of belonging to any particular society. So this attempt to show that Locke's analysis of rights is not the right one to apply in the context of discussions of human rights seems self-stultifying. A further problem with the argument we have been discussing is that it seems to involve a non sequitur. It relies on the idea that the claim that human rights confer prima facie obligations on everyone who is in a position to enforce them follows from the fact that human rights are important in enabling people to live a recognisably human life. This might

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____________________________________________________________ seem fairly plausible at first sight. Still, it is not obvious that it is true or, if it is true why this should be so. As it stands, the argument seems to involve an important slide between the claim that a particular individual’s human rights are important to that person and the claim that they are important to everyone. This objection is not, however, decisive. One response to it can be found in the work of Alan Gewirth.9 Gewirth argues that if we see certain conditions as being necessary conditions for someone to be recognisable as an agent, then we are committed, on pain of inconsistency, to the idea that everyone should be able to benefit from similar conditions. On the face of it, though, there is not a very big difference between saying that certain conditions are necessary for someone to lead a recognisably human existence and saying that certain conditions are necessary conditions of agency. So if Gewirth's reasoning is correct, there is a way of bridging the gap between the idea that it is important for a particular individual that certain rights should be respected and the claim that it ought to be important for everyone else. Two points need to be noted here. First, the idea that there is an inconsistency between seeing certain conditions as necessary for my being an agent and not seeing myself as committed to seeing that similar conditions are realised for other agents is one that requires considerable further support. Second, and more significantly, for my purposes the invocation of Gewirth's argument shows that we have moved out of the domain of pre-philosophical reflection and into that of explicit philosophical theorising. The idea that a cogent view about intervention can be arrived at without such theorising has been tried and found wanting. Since this is so, I shall now look at what representatives of two central traditions in modern political philosophy have had to say about the question of intervention. I shall start by examining the consequentialist tradition, as represented by John Stuart Mill, and then turn to the contractualist tradition as represented by John Rawls. It will emerge that neither figure has an entirely a satisfactory view. We should not, however, despair: as I shall try to show at the end of the essay, Rawls' position can be modified in a way which enables it to escape the objections I shall be making. 3.

J.S. Mill's Consequentialist Argument for Non-Intervention One way in which one might hope to resolve questions about the rights and wrongs of one state's intervening in the internal affairs of another is by appeal to some form of consequentialist moral theory. For a consequentialist what matters when assessing the morality of a particular action is whether that action produces a positive balance of good over

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____________________________________________________________ harm.10 Assessments of good and harm produced can be conceived of in terms of the balance of pain and pleasure (as in the classical utilitarians),11 of satisfied over unsatisfied preferences (as in more recent versions of consequentialism),12 or in the realisation or non-realisation of certain kinds of objective states of affairs.13 Arguments for the claim that one state ought to interfere in the affairs of another are often based on consequentialist assumptions.14 If these assumptions are correct they provide us with a powerful basis for arguing for intervention in any cases where it is reasonable to think that it will do more good than harm. They also give us grounds for ignoring objections based on a state’s alleged right to treat its citizens as it sees fit, or a particular group’s right to self-determination even in cases where this involves harm to the interests of individual members of those groups. For a consequentialist such considerations will be irrelevant.15 In the light of this, it is interesting that one of the founding fathers of modern consequentialist thought should have produced a general argument against intervention. In “A Few Words on Non-Intervention,”16 Mill puts forward a consequentialist case for one state's not intervening in the internal affairs of another.17 Mill wrote in the context of the struggles for national liberation that marked the middle of the nineteenth century.18 What he says might therefore be thought relevant to at least some, if not all, recent cases where intervention has been proposed. Mill’s essay can be read as a working out of some of the consequences for international relations of ideas that are developed in Utilitarianism and On Liberty. His argument depends on two empirical claims, and is subject to one important limitation. Mill relies upon two claims. First, a people that acquires independence from a foreign power with the help of a foreign power is unlikely to develop and retain free institutions of its own. Second, the development of such institutions is the best way of ensuring the long-term happiness of individuals who make up this people. The limitation is that the argument can only be held to apply to situations in which there is no prior foreign involvement. For the purposes of this paper I shall take “free institutions” to be institutions which are stable, democratic, and constitutional. It may well be that twentieth-century liberals would not agree with Mill about exactly which institutions fit this description. An advantage to this interpretation is that, despite its potential anachronism, it leaves us with an argument that we can at least hope to take seriously. I shall also accept, for the sake of argument, Mill’s claim that such institutions are the best way of ensuring the long-term happiness of the people who have to live under them. This assumption which seems to underlie many attempts at what modern commentators call “nation-building.”19

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____________________________________________________________ Even if we accept these assumptions, Mill’s argument seems vulnerable to three lines of criticism. The first focuses on Mill’s claim that a people is unlikely to develop or retain free institutions as a result of foreign intervention. This claim might have seemed plausible in the nineteenth century. It is much harder to defend it today. This is not because human nature has changed since the nineteenth century or because modern statesmen have more noble objectives than their predecessors, but because we can draw on wider historical experience than that which was available to Mill. Importantly, this wider experiences includes the constitutional settlements imposed on Germany and, more problematically, Japan in the wake of World War Two. Admittedly, these were constitutions imposed on countries that were defeated in wars of aggression. Nevertheless, modern Germany provides an example of a state developing free institutions not autonomously, but on the basis of foreign intervention – something that Mill regards as impossible or, at any rate, so unlikely a possibility as to be negligible.20 A second weakness in Mill’s argument derives from his explicit limitation to cases where there is no prior foreign involvement. This limitation is problematic for two reasons. The first is that it is difficult to think of a recent case in which intervention in support of human rights has been advocated where there is no prior foreign involvement. This is certainly the case if we count as a case of foreign intervention the financial support provided by many governments and international agencies to governments with dubious human rights records.21 But Mill's limitation is also problematic because the question of whether foreign intervention is occurring or has occurred is not as straightforward as Mill takes it to be. 22 One feature of many ethnic liberation struggles is precisely that they involve a claim on the part of one ethnic group to be subject to intervention by a foreign power – namely the power that has sovereignty over them. Tacit support for the status quo – for example, by governments that engage in alliances with states in which liberation struggles are taking place – might, too, be thought of as a form of international interference by those who are struggling against it. A third objection relies on a line of argument that is familiar in much modern moral philosophy.23 It is that consequentialism wrongly neglects an important class of moral claims – namely claims of justice. The objection can be put like this. There are cases in which a concern with ensuring the best overall outcome of our actions involves disregarding individuals’ rights. However, thinking about these cases in a more concrete manner suggests that consequentialists make the wrong moral judgement about them. For example, we do not think it right that an innocent individual should be punished in order to prevent rioting in which more than one individual will be killed. This is true even if this seems to

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____________________________________________________________ be the action that will have the best consequences overall in terms of general happiness, preference satisfaction, or whatever a particular consequentialist theory instructs us to maximise. And the reason why we do not think that this is right is precisely because the person is innocent and that it is unjust to punish the innocent. Mill’s arguments against intervention seem to be subject to exactly the same sort of objection. An argument that says that it is wrong for one nation to intervene in the internal affairs of another because the long term prosperity and stability of a people requires that free institutions be attained autonomously seems to involve exactly the same trade-off between rights and consequences that is objectionable in the lynching case. However, there are a number of standard replies to the worry that consequentialist theories overlook considerations of justice. Whatever their merits in dealing with the lynching example, they do not provide us with a satisfactory view of the rights and wrongs of intervention. One possible response to the lynching example is to refuse to engage with it. One rationale for doing so is this: in any actual case there are likely to be more options available than the ones with which the example presents us. Since this is so, the consequentialist can insist that the purpose of a moral theory is to tell us how we should act in the actual world and conditions like it, rather than in some Hollywood scriptwriter's fantasy, and that in the real world considerations of justice and consequences rarely if ever come into as stark conflict as the example suggests. However, this objection misses an important point. What really needs arguing against here is not how realistic the example is, but the principle that it is supposed to illustrate. The principle is that considerations of what people's rights are can provide us with a reason for doing something other than the action which has the best consequences overall. Of course, the consequentialist could respond that in the lynching case, if we think hard about the long-term consequences of our actions, we will not be disposed to neglect people's rights after all. In the lynching case, one can argue that the consequences of having corrupt sheriffs can, in the long run, outweigh the benefits of avoiding riots. In the case of international intervention they can argue that the action which has the best overall consequences is the one that focuses on the sufferings of people in the here-and-now. Many people find this kind of response unconvincing. One reason for this is that even if it helps the consequentialist get the right answer in the lynching case, it does so for the wrong reason.24 On the consequentialist line the innocence of the accused man only plays an indirect role: it is because we think it might be bad for other people if he was punished, that we think he should not be. But this seems like a

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____________________________________________________________ travesty of what we should actually think: namely that it is because this very person is innocent that it is wrong to punish him. Even if, however, this defence of consequentialism can be made to work, it does not seem to provide us with a way of supporting Mill's position. We have provided a rationale for consequentialists to respect rights. If this rationale is not respected, the consequentialist position seems implausible. However, if it is respected, then the fact that failure to intervene in cases of human rights violations will involve the neglect of some people's rights seems to undermine the consequentialist case for nonintervention. There are two final thoughts that need to be considered before we can move on from our discussion of Mill. So far, I have avoided distinguishing explicitly between what are known as “direct” and “'indirect” forms of consequentialism. Direct consequentialists hold that in any situation one should decide what is most likely to produce the best overall consequences of the sort favoured by the particular form of consequentialism under consideration. Indirect consequentialists hold that this is problematic for various reasons. What we should do instead is to come up with general policies which are likely to have good overall consequences, and then act in accordance with those, whatever their upshot seems likely to be in a particular case.25 Could careful attention of this distinction help to salvage Mill's argument? It is unlikely. Whether we take Mill to be a direct or an indirect consequentialist, the argument above presents him with a dilemma. If his view does not make respect for the rights of individuals into a relevant consideration when questions about intervention are under discussion, then it is implausible. If it does, then the considerations he raises about the value of free institutions can no longer be taken to be decisive even by his own lights. Finally, and for the sake of completeness, I want to say something about Walker's claim that Mill's argument in the essay that I have been discussing should not be interpreted along consequentialist lines.26 Walzer argues that Mill should be taken as claiming that nations have a right to self-determination, and that interference by foreign powers necessarily undermines this right.27 Whatever the merits of this interpretation of Mill, two points are inescapable. The first is this. If Mill did think that nations had such a right, (and it is worth noticing that he never expresses himself in exactly these terms), it does not follow that his account is to be interpreted along other than consequentialist lines. For in chapter five of Utilitarianism he gives a detailed account of how a consequentialist might be entitled to talk in terms of rights - an account that runs parallel to the indirect consequentialist one I have outlined above. But as I have argued, a

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____________________________________________________________ defence of non-intervention on indirect consequentialist grounds cannot succeed - so Walzer's reference to a right of self-determination adds nothing to the argument. However, it is possible that Walzer thinks - and believes that Mill thought - that nations have a right to self-determination that is not to be justified on consequentialist grounds. If so, it might provide a basis for an argument against intervention. Still, matters are not so clear cut as they might seem at first sight. For even if a right of self-determination of the sort which Walzer discusses did exist - and it is noticeable that he gives no clear rationale for thinking so - then it seems clear that the sorts of cases where intervention is relevant would involve a conflict of rights. Without a clearer account of what the right of self-determination is based on, it is difficult to know how this conflict should be resolved. But the suggestion that a state's rights to self-determination should always override the rights of individuals who are members of that state is not the only, or indeed the most attractive, answer to the question that this raises. 4.

John Rawls' Contractarian Defence of Non-Intervention In the last section I argued that a consequentialist argument for non-intervention in cases of human rights violations failed because it failed to acknowledge that there is a problem about trading off violations of rights against some form of long-term social good. This is an insight that has been exploited by recent writers in the contractarian tradition in ethics and political philosophy, most famously John Rawls.28 In light of this it is worth examining what authors in this tradition might have to say on the subject. Rather than attempting a survey of all the authors who have written on the topic who could be categorised as “contractarian,” which would probably constitute a book-length project, I shall concentrate on one prominent contribution: John Rawls' recent book-length essay The Law of Peoples.29 It is worth saying at the outset that Rawls' work should not be taken as representative of the whole contractarian tradition.30 I have chosen to focus on it in part because of its depth and subtlety and in part because Rawls' reputation as one of the foremost political philosophers in the English-speaking world seems likely to ensure that it remains the focus of debate for a long time. In The Law of Peoples, Rawls argues that there is a set of principles that liberal states should recognise as regulating the ways in which states deal with one another. These are the principles that would govern interactions if they were governed by an ideal of fairness, rather than the contingencies of power politics. We can discover what the principles are by imagining that a group of representatives of different states has been given the task of coming up with a set of principles to govern their interactions while not knowing which state they were

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____________________________________________________________ supposed to be representing and asking what principles they could agree on. The purpose of making the individuals ignorant of which states they represent is supposed to ensure that the outcome of the negotiation is fair. No individual representative can get an especially favourable deal for their state by exploiting their power, global position, or natural resources, since they know nothing about these things. (It is irrelevant for Rawls’ purposes that no actual individuals could be ignorant of these facts - a fair agreement, for Rawls’ argument is one that has the same content as one which would be arrived at in this way.31) Rawls argues that these principles could also be accepted by representatives of what he calls “decent non-liberal states.” This phrase is supposed to refer to non-aggressive states that have a system of law that protects certain human rights including the rights to life, liberty and what Rawls calls “formal equality,” whose system of laws is in sufficiently good moral order to impose “bona fide moral duties and obligations on all persons within the states territory and whose system of law is administered by officials who are guided by “a sincere and not unreasonable belief…. that the law is….guided by a common good conception of justice.”32 Furthermore, because the principle one that would have to be acceptable to representatives of both liberal and decent non-liberal peoples, we can say something else that Rawls does not make explicit. These principles could be agreed by a group of representatives of both liberal and decent nonliberal peoples working under the same handicap of ignorance as in the first paragraph, together with the further complication that the representatives no longer know whether they are representing decent or non-decent peoples. However, the principles need not necessarily be acceptable to representatives of states who are neither decent nor liberal. Rawls' rationale for this is that liberal states are morally obliged to be tolerant of the moral views characteristic of decent non-liberal states, but not of those which are neither decent nor liberal. In this chapter I shall not discuss whether Rawls is right to say that the principles of a Law of Peoples which is acceptable to liberals should also be acceptable to representatives of decent non-liberal states.33 Nor shall I discuss the full set of principles at which he arrives. Instead, I shall be concerned with the consequences of Rawls’ views for questions about intervention, and with the plausibility of those consequences. This calls for some interpretative subtlety. Tensions in Rawls' position exist. They need to be resolved before it can be evaluated. Much of what Rawls says suggests that there is a general presumption against one state's interfering in the internal affairs of another.34 This presumption is over-ridden in the case of what Rawls' calls 'outlaw states' - states that violate the principles that Rawls says could be agreed on in his thought experiment.35 Rawls argues that when such states

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____________________________________________________________ present a threat to non-aggressive states, the latter have a right to counter these threats. But this leaves open the very real possibility of states that mistreat their own citizens but that do not engage in external aggression. Rawls' discussion of such states is restricted to two short footnotes. The first says that such states “may be subject to some form of intervention in severe cases,”36 but does not specify what form this intervention may take. The second says that “forceful intervention” may be called for in cases where abuses are “egregious” and the “society does not respond to the imposition” of sanctions.37 Since we do not know what non-forceful sanctions Rawls considers legitimate, or what abuses are “egregious,” this tells us little. Moreover, the footnotes seem to contradict the main body of the text, where we read, "Well-ordered states…wage war …. only against non-well-ordered states whose expansionist aims threaten the security and free institutions of well-ordered regimes."38 Given this apparent contradiction and given that Rawls provides little explicit argument for the view expressed in the body of the text and none for that in the footnote, we need to think about what Rawls' view ought to be. I shall now argue that given Rawls' view about how the content of the Law of Peoples ought to be fixed, he cannot endorse a principle of the sort that the footnotes suggest. A principle that licensed intervention in the case of human rights violations would not be endorsed by a group of representatives of both liberal and decent non-liberal states. To see why this is so we need to look at the notion of a decent non-liberal people. Rawls' definition requires that such a people have a legal system that respects the rights of those who are subject to it. However it does not require the individual members of such peoples to have a commitment to the ideal of protecting human rights as such. In Rawls’ view, a people whose legal system embodies the principle that the human rights of its subjects should be respected because they are members of a particular ethnic group, or have a particular national status, but are not concerned with advancing the cause of human rights qua human rights would still qualify as a decent people. So members of a group of representatives of both liberal and decent non-liberal societies who did not know which society they were representing could not assume a commitment to human rights on the part of that society. Without such a commitment, there is no reason to expect them to agree on a principle licensing intervention. Still, one might think that a representative in such a situation would have no obvious reason for objecting to such a principle. But this is not true. One reason for objecting to it as a principle is that it is open to abuse by states trying to advance their own interests (and undermine those of other states) under cover of an intervention to protect human rights. This concern might be outweighed in the case of a group of

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____________________________________________________________ representatives of liberal states by their shared commitment to human rights as a universal value. But if the representatives do not know whether their states have such a commitment then the concern cannot be outweighed in this way. So Rawls' position seems to imply that a law of peoples cannot incorporate a provision allowing for military intervention in the internal affairs of states which violate the rights of their citizens. Any such intervention, Rawls should say, will constitute a violation of the Law of Peoples. 5.

Conclusion: A Tentative Contractarian Defence of Intervention Rawls might well feel uncomfortable with the conclusion reached in the last paragraph. The direction of the argument suggests that by virtue of extending tolerance to decent non-liberal peoples, liberals are compelled to extend a form of de facto toleration of human rights abuses in states that do not meet Rawls' criteria of decency. But even if it was right to say that human rights abuses in one country could never justify military intervention, this seems like the wrong sort of justification. There is no compelling reason why liberals should take moral views which ex hypothesi they disagree with to affect their view of the legitimacy of intervention in this sort of case. Furthermore, Rawls' account of how the principles of a Law of Peoples should be derived seems problematic at the theoretical level as well. Rawls' suggestion that Principles of the Law of Peoples need only be capable of being endorsed by representatives of liberal and decent nonliberal peoples brings into international ethics a kind of moral arbitrariness that we should try to avoid. As Rawls argues in A Theory of Justice, principles of justice should not allow rewards to depend on morally arbitrary qualities. But if this is true of the principles that govern a single society, then it should also be true of the principles that govern a society of societies.39 In the formulation of a Law of Peoples, excluding from consideration the voices of members of outlaw societies seems to import such arbitrariness. If anything is a morally arbitrary matter, the fact that one is unlucky enough to live under a government that is neither liberal nor decent is surely one. So, there are good grounds for thinking that Rawls should reconsider the way in which he formulates the Law of Peoples. There are various ways in which such a reformulation might be attempted. Here I want to make one tentative suggestion and consider its implications for the issues that have been discussed in this chapter. Unlike other critiques of Rawls' view, this suggestion takes seriously the idea that provisions of the Law of Peoples should be arrived at by considering agreements that could be entered into by representatives of different states.

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____________________________________________________________ The suggestion is as follows. In order that a provision of the Law of Peoples be acceptable it must be capable of being endorsed not just by representatives of liberal and decent non-liberal peoples but by representatives of all peoples, acting from behind a barrier of ignorance, which prevents them from knowing which people they are representing. In order to see what the implications of this suggestion might be we need to say more about the notion of someone's being a “representative” of a particular society. A representative should be understood not to be a ruler of a given society in order to be a member of the people in question, handicapped by Rawlsian ignorance as to his exact position in the society. (This account of being a representative is Rawlsian in spirit, though not in detail. Rawls says relatively little about how the notion of a representative should be understood, although it is clearly crucial for understanding his view). If we understand “representative”' in this sense, then we can see why a principle licensing intervention in cases of serious human rights violation might well be endorsed. For representatives will have to think of themselves as potential targets of human rights violations rather than as potential perpetrators, and it would be rational for such potential targets to make provision for their protection through the intervention of other states. Of course, much more needs to be said. I have argued that if Rawls’ account of the Law of Peoples is amended in the way I have suggested, then there will be some reason for expecting it to contain a principle licensing interventions to protect human rights. However, I have said nothing about the exact form such a principle might take, or how it might apply to particular cases of human rights violations. These are important questions, which I hope to address in future work, but they fall outside the scope of the present chapter.

1

Notes

Mill, 1867. 2 Rawls, 1999. 3 Griffin, 2001, 307-310. 4 Cf. Mill's account of the notion of a right in chapter 5 of Utilitarianism: “When we call anything a person's right we mean that he has a valid claim on society to protect him in the possession of it” (Mill, 1991, 189). Mill need not necessarily quarrel with my claim in the text that these obligations may fall on particular individuals rather than society as a whole - a natural view would be that society can best discharge the

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____________________________________________________________ obligation to which he refers by imposing special duties on particular individuals. 5 Cf. Nussbaum, 2001, 401-5; Griffin, 2001, 310-2. 6 Mill, 1991, 189. 7 Locke, 1952, 5-7. Cf Nozick, 1972 for a recent statement of a similar view. 8 Rousseau, 1968 seems to have held a view of this sort. 9 Gewirth, 1996, 13-20. 10 I here gloss over an important distinction between so-called “direct” and “indirect” forms of consequentialism. I return to this point below. 11 For example, Bentham, 1987. 12 For example, Smart, 1973. 13 For example, Moore, 1903; Griffin 1986. 14 For one recent example, see Doyle, 2001. 15 Strictly speaking, this is only true for “direct consequentialists.” Indirect consequentialists will have to make more nuanced judgements, which take into account the consequences of a general policy of non-interference. 16 Mill, 1873. 17 Walzer (in Walzer, 1977, 87-91) argues that Mill's essay should not be interpreted as a working out of the consequences of his general consequentialist views. I discuss his interpretation of Mill below. 18 Cf. Walzer, 1977 for a similar emphasis on the context of Mill's essay. 19 For more detail see Doyle, 2001. 20 Cf. Doyle, 2001. Doyle also argues that the existence of the UN and its record of successful involvement in peace making undermine Mill's position. 21 Cf. Pogge, 2001. 22 Cf. Walzer, 1977, 96. 23 A locus classicus is Rawls, 1972. 24 This kind of objection is pushed by Bernard Williams. See, for example, Williams, 1985. 25 See Lyons, 1965 for a discussion of arguments for indirect consequentialism. 26 Walzer, 1977, 87-88. 27 Walzer, 1977, 88. 28 Rawls, 1972 loc cit. 29 Rawls, 1999. 30 For examples of work in the contractarian tradition that suggests a different view of these issues, see Beitz, 1975; Pogge, 1987, 2001. 31 See Rawls, 1980 for a discussion of how the procedure is supposed to work and why the outcome should be regarded as fair. 32 Rawls, 1999, 64-7. 33 See Pogge, 1994; Caney, 2002 for criticisms of this sort.

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____________________________________________________________ 34

See Rawls, 1999, 37 for a clear statement of this point. Rawls, 1999, 84. 36 Rawls, 1999, 90, footnote 1. 37 Rawls, 1999, 94, footnote 6. 38 Rawls, 1999, 94; italics mine. 39 Rawls, 1972, 22-7. 35

References Bentham, J. (1987), ‘An introduction to the principles of morals and legislation’, in: A. Ryan (ed.) Utilitarianism and other essays. Harmondsworth: Penguin. Beitz, C. (1975), ‘Justice and international relations’, Philosophy and public affairs, 5: 360-89. Caney, S. (2002), ‘Cosmopolitanism and the law of peoples’, Journal of political philosophy, 10: 95-123. Doyle, M. (2001), ‘The new interventionism’, Metaphilosophy, 10: 21235. Gewirth, A. (1996), The community of rights. Chicago: University of Chicago Press. Griffin, J. (1986), Wellbeing. Oxford: Oxford University Press. ── (2001), ‘First steps in an account of human rights’, European Journal of Philosophy 9: 306-327. Locke, J. (1951), The second treatise of government. Indianapolis: Bobbs Merill. Lyons, D. (1965), Forms and limits of utilitarianism. Oxford: Oxford University Press. Mill, J.S. (1867), ‘A few words on non-intervention’, in: Dissertations and discussions political, philosophical, and historical. London: Longmans, Green, Reader and Dyer. 153-178. ── (1991), ‘Utilitarianism’, in: On liberty and other essays. Oxford: Oxford University Press. Moore, G.E. (1903), Principia ethica. Cambridge: Cambridge University Press. Nozick, R. (1974), Anarchy, state and utopia. Oxford: Oxford University Press. Nussbaum, M. (2001), Upheavals of thought. Cambridge: Cambridge University Press.

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____________________________________________________________ Pogge, T. (1987), Realizing Rawls. Ithaca: Cornell University Press. ── (1994), ‘An egalitarian law of peoples’, Philosophy and public affairs, 23: 195-224. ── (2001), ‘Priorities of global justice’, Metaphilosophy, 32: 6-24. Rawls, J. (1999/1972), A theory of justice. Cambridge, MA: Belknap Press. ── (1980), ‘Kantian constructivism in moral theory’, Journal of philosophy, 77: 515-72. ── (1999), The law of peoples. Cambridge: Harvard University Press. Rousseau, J-J. (1968), On the social contract. M. Cranston (trans.) Harmondsworth: Penguin. Smart, J. (1973), ‘A defence of utilitarianism’ in: J. Smart and B. Williams (eds.) Utilitarianism: for and against. Cambridge: Cambridge University Press. Walzer, M. (1977), Just and unjust wars. New York: Basic Books. Williams, B. (1985), Ethics and the limits of philosophy. London: Fontana Press.

Terrorism and Just War Theory Scott C. Lowe 1.

Introduction In this paper I wish to critique the view that some acts of terrorism can be justified by classic just war theory, a claim defended by political theorist Andrew Valls, among others. His argument turns on two elements. First, Valls offers a broad interpretation of what terrorism is, reducing it to violence by non-state actors for political purposes. I believe that there are problems with this definition of terrorism, and suggest a narrower alternative. Second, Valls focuses heavily on his disagreement with the requirement of just war theory that only those with legitimate political authority, that is, nation states, may use political violence. He may well be right in saying that legitimate political authority does not reside only in the form of politically recognized states. However, the conclusion that Valls draws from his analysis is that, granted the justice, proportionality, etc. of the act of political violence, some acts by “terrorist organizations” could satisfy the criteria of just war theory. His is a striking conclusion. The just war theory tradition is the basis of a long held view in the West that there can be legitimate uses of war, while also setting moral boundaries on the waging of war. If acts of terrorism can satisfy the conditions of just war theory, then they would have a moral legitimacy that runs deeply contrary to our normal understanding of terrorism. I believe that the proper response to Valls is to focus on how narrow his conclusion really is. In de-emphasizing the importance of terrorizing in acts of terrorism, Valls may have brought some acts of terrorism under the umbrella of just war theory, but only relatively few. I argue that these cases are too few to justify the weight Valls puts on them. Rather, the examples of terrorism that experience has shown are far more common and involve far more carnage are precisely those whose purpose it is to threaten a population and its way of life. These acts of terrorism target the safety of innocent citizens, of non-combatants, and it is an analysis of the status of non-combatants that shows that terrorism, as we commonly understand it, is not compatible with just war theory. 2.

Just War Theory Since before the time of Aquinas, appeals to justice and morality have been used to explain and justify the moral legitimacy of war. Aquinas was among the earliest writers to develop a view that stands in what we might now call a just war theory tradition, though he is in turn clearly indebted to Augustine, whom he cites frequently. In Summa Theologica,1 Aquinas lays out three conditions for justly entering into war, and also discusses legitimate ways of conducting war, specifically, the

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____________________________________________________________ morality of ambushing one’s enemy (it’s permissible, though, interestingly, lying to the enemy is not.) Aquinas’ discussion foreshadows the basic structure of this tradition as it continues down to this day.2 That is, he distinguishes between the conditions for justly resorting to war (jus ad bellum) and the conditions for justly waging war (jus in bello).3 Central to the justice of resorting to war according to this tradition are the three criteria Aquinas discusses: that hostilities be used in support of a just cause, that support of that just cause in fact be the reason for going to war, and that the war be waged under the legitimate authority of the state. Waging war in support of a just cause in this context means doing so because, as Aquinas puts it, those attacked “deserve it on account of some fault.”4 He follows with an illuminating quotation from Augustine: A just war is usually described as one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly.5 In modern terminology, a just war is usually waged in self-defense or in defense of another, or is waged as punishment to avenge some wrong done by another nation. Note that this condition does not preclude a nation’s engaging in offensive warfare; with sufficient provocation, a nation could justly strike first in self-defense or in defense of an innocent third party. Further, the second condition under jus ad bellum requires that such a just cause in fact be the reason for engaging in hostilities. It is not enough that the just cause (even if legitimate) simply be window dressing for some other, morally dubious, motive. A just war must be pursued with “right intention.”6 Additionally, Aquinas argues that a just war can only be waged under “the authority of the sovereign.”7 That is, just wars can only be waged by a state; all non-state groups act unjustly if they engage in warfare or political violence. Aquinas gives two reasons for this condition. First, private individuals do not need to resort to political violence or warfare because they have the sovereign to appeal to in support of their rights and to protect their interests. Second, it is the job of the sovereign, not private citizens, to look after the public good: “as the care of the common weal is committed to those who are in authority, it is their business to watch over the common weal of the city, kingdom or province subject to them.”8 And since it is the sovereign who has the authority to use the “material sword” in defense of the state from both external and internal foes, private citizens are not to use violence in war, as punishment, nor, certainly, in insurrection. 9 Finally, the tradition, as it has developed, usually includes three further conditions under jus ad bellum: that war not be started except as a last resort, that war not be started except when there is a reasonable probability that it will accomplish its goal, and that the good gained by

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____________________________________________________________ engaging in warfare is proportional to the likely pain, suffering and evils that result from doing so. These three conditions all direct our attention to the disadvantages of warfare, and demand that we weigh carefully in deciding whether going to war is worth the costs that are likely to come with it. I will not be concerned with these conditions in what follows, and will simply assume that such conditions hold and can be met. Additionally, it is worthwhile to touch briefly on the conditions of jus in bello because of their bearing on the discussion that follows. Under this heading there is also a demand for proportionality, though here it functions at a more tactical level, requiring that soldiers not use force out of proportion to the particular (presumably legitimate) military end they seek. Second, in the conduct of war, soldiers must not make use of certain wholly illegitimate tactics or weapons such as chemical or biological warfare, mass rape, genocide or torture. Finally, and most importantly for our purposes, to conduct war justly, soldiers must discriminate between legitimate military targets which may be attacked and those non-combatants who, though potentially victims of “collateral damage,” may not be intentionally targeted. This distinction between legitimate military, industrial, or political targets, which may be the object of attack, and non-combatants, innocents in some sense of the word, who may not be intentionally targeted, will play an important role in much of what follows. So, in sum, according to the just war tradition, warfare is not always an illegitimate political tool. If a sovereign intends a sufficiently important and just end, and if that end has a reasonably good chance of being brought about, then hostilities may be initiated as a last resort to accomplish that end. Further, if, in the conduct of that war, the military uses no morally unacceptable means, nor acceptable means out of proportion to their tactical end, and if non-combatants are not intentionally targeted, then one can be said to wage war justly. 3.

Terrorism and Just War The just war tradition I have been discussing carries a lot of weight. It is the primary moral and religious context in which the legitimacy of war has been discussed for nearly a millennium. It is for this reason that Andrew Valls asks the question, “Can Terrorism Be Justified?” and defends a qualified affirmative answer within the just war tradition. “Just war theory, despite its ambiguities, provides a rich framework with which to assess the morality of war,”10 and, he wants to add, other forms of political violence such as terrorism, as well. Valls’ strategy is to show that certain forms of terrorism can meet every defensible qualification under just war theory, so he canvasses each of the nine criteria under jus ad bellum and jus in bello. I will not review all that he has to say here, but

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____________________________________________________________ rather will focus on two pieces: the demand for legitimate authority (jus ad bellum) and for discrimination (jus in bello). A central issue for Valls’ position is to discredit the requirement of just war theory that only those with legitimate political authority may make use of political violence. Obviously, if non-state organizations are precluded from the use of political violence, then all of the cases of terrorism we are interested in here would be ruled out.11 So why think that non-state organizations may not use violence? Recall Aquinas’ two reasons mentioned above: that private individuals do not need to resort to political violence because they have the sovereign to protect their rights and interests; and that it is the responsibility of the sovereign alone to look after the public good. Clearly Aquinas is wrong on both counts, for neither of these reasons will support the claim that political violence is never justified by non-state organizations. First, it is simply false to claim that governments always act fairly and support the rights of all citizens. Being the legitimate, recognized government of a nation does not guarantee that that government is concerned with protecting the rights of the ethnic, religious, or racial minorities within its borders, as the history of even the North American and European democracies makes clear. And, if that ill treatment is sufficiently malicious and intractable, then we cannot rule out violence, in principle, as an unacceptable means of ending injustice. Similarly, experience also shows that it is not only sovereign governments that can function as the true representatives of the interests of a people. Examples as familiar as the PLO or IRA illustrate our willingness to accept organizations well short of sovereign states as the real protectors of the interests and rights of their people, sometimes even against the legitimate, recognized government in power. So, let us grant that non-state organizations can represent the interests of a people, in a manner analogous to a state, such that they may legitimately use political violence. Next, let us turn to the discussion of discriminating between military or other acceptable targets and non-combatants, who may not be targeted. The central issue here is to take on the difficult task of determining who counts as a non-combatant. Traditionally, soldiers were to avoid the intentional harming of “innocent civilians.” Yet, with some exceptions such as children, few of us are so void of responsibility for the actions or policies of our governments as to count as fully innocent; trying to figure out what innocence is and who qualifies is a thorny matter, indeed. Following Michael Walzer in his now classic work Just and Unjust Wars, we can start by making the point that non-combatant status is not gained, but lost. That is, the right not to be harmed is “a feature of normal human relationships” such that the burden of proof lies in explaining why someone ought to be counted as a legitimate target of

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____________________________________________________________ attack. 12 Soldiers obviously are combatants and have lost their right not to be attacked. Whether a conscript or a volunteer, the soldier is in a position to threaten harm to the enemy, and so doing, has opened himself to attack. Walzer emphasizes this point in the section entitled “Naked Soldiers,” in which he recounts several stories of soldiers in wartime who refused to shoot at enemy soldiers in a bath, casually smoking a cigarette or otherwise engaged in innocent human pastimes. These soldiers certainly did not lose their combatant status in these very human moments, but, not being then a threat, opposing combatants could not bring themselves to shoot them down. Focusing on the threat of harm, one finds it widely accepted that the tactics and weapons of modern warfare extend combatant status beyond just soldiers. Workers making munitions and other goods vital to waging war have long been treated as legitimate military targets, at least while at work. Though they are otherwise civilians, the nature of their jobs makes them combatants. They are distinguished from other civilians who, not engaged in making what is necessary to warfare, and, not a threat to the enemy, are presumably not legitimate targets. But how plausible is this distinction? A. J. Coates, in The Ethics of War, suggests that there are problems with it: Activities that are carried on regularly outside war and are not intrinsically warlike may yet, in times of war, become crucial to the prosecution of war and occupy a key and strategic role.13 For example, if the munitions worker has lost his immunity to attack, why not the worker who supplies the raw materials for the munitions, or the train engineer, pilot, or truck driver who delivers them? Are not they engaged in work that contributes to the threat to the enemy? And what of the many others who provide food, aid, and comfort to those workers and to soldiers in service? It would appear that the distinction between combatants and non-combatants is in danger of collapsing, and along with it the protection that non-combatant status is supposed to bring. Burleigh Wilkins explores this line of argument in Terrorism and Collective Responsibility. There he cites George Habbash, leader of the Popular Front for the Liberation of Palestine, as claiming that in today’s technologically advanced, interconnected world no one is innocent. Attempting to elucidate Habbash’s statement, Wilkens suggests that we read it as pointing to the implications of indirect and potential harm. Surely many non-combatants, including those who only support the military as human beings, pose at least the threat of indirect harm, and even when a war is in progress many, perhaps most combatants pose at any given time only a potential harm to the enemy.14 He goes on to point out the ancient practice of killing one’s enemy’s families, to head off the potential of their children becoming the soldiers,

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____________________________________________________________ or terrorists, of the future. So, if we read the threat of harm to include the potential for harm or the indirect threat of harm, then the category of noncombatant effectively disappears. If that is the case, then neither the soldier in battle nor the terrorist need be discriminate in the choice of target: anyone may be killed. How can we fend off this conclusion? To start with, we need to refocus the discussion back on the sense of innocence with which we are really working. Speaking of the innocent civilian, the non-combatant, Walzer writes that we call them “innocent people, a term of art which means that they have done nothing, and are doing nothing, that entails the loss of their rights.”15 They may not be innocent in other senses of that word; they may in fact be in favour of the war, but their activities do not threaten the lives of enemy soldiers. For instance, consider the warmongering elderly gentleman, ineligible for military service, who thinks the enemy deserves everything he gets. He may be hateful, cruel and decidedly not innocent in his thoughts and words about the enemy, but his actions do not justify the claim that he has lost his right not to be attacked. Similarly, most civilians are not engaged in activities that warrant targeting them for attack. Any harm they do is so indirect, any potential threat to the enemy they pose is so remote, that it would be, literally, overkill to suggest that they have surrendered their status as noncombatants. So, while we surely do have to expand the category of combatant beyond just soldiers, we do not have to accept that so doing undermines a real distinction between combatants and non-combatants. Valls also wishes to maintain the distinction. He starts by noting that we should avoid the attempt to draw any firm lines between combatants and non-combatants, a claim which I believe is compatible with the distinction as it has been drawn above. Rather, following the work of Robert Holmes, he suggests it would be better to conceive of combatant/non-combatant status as a continuum along which we could place persons of different degrees of culpability: At one end he would place political leaders who undertake the aggression, followed by soldiers, contributors to the war, supporters, and finally, at the other end of the spectrum, noncontributors and nonsupporters.16 So, if non-combatant status is a matter of degree, then the discrimination that soldiers must exercise in whom they target also comes in degrees. Being more discriminate means being careful to target folks who are more clearly combatants; being less discriminate means being indiscriminate or even intending to target those more at the other end of the scale.

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____________________________________________________________ Similarly, the terrorist, if his or her action is to be judged by the standards of the just war tradition, must make every effort to be more, rather than less, discriminate in deciding who is targeted for attack. Thus, from what has been said so far, we can see the point of Valls’ conclusion. Namely, if it is legitimate for non-state actors to use political violence, as I have conceded it is, and if that political violence meets all the other criteria of just war theory, especially the demands for justice and discrimination, then some acts of what has traditionally been called terrorism are permissible and just.17 4.

Defining Terrorism You have noticed, no doubt, that I have not yet offered a definition of the key term in this whole discussion - terrorism. Trying to define this concept is both interesting and challenging; by examining different views on terrorism I hope to highlight my differences with Valls’ view. He starts his discussion by suggesting boundaries within which a definition of terrorism should fall.18 First, we should be careful not to define terrorism in such a way that we build the immorality into it. To start with a definition like “the intentional, indiscriminate killing of the innocent” is to assume the immorality of terrorism, and would end any discussion of its morality or immorality before we start. Such a discussion would be as pointless as trying to decide whether murder is wrong; of course it is; pointing out its wrongfulness is what one is doing when one calls an act a murder. So, on the one hand, we need to craft a definition of terrorism using morally neutral language that allows us to decide on the basis of the merits of the case whether the action is moral or immoral. On the other hand, terrorism is a word with an established (albeit wide) pattern of use, and we cannot ignore its meaning in ordinary language. A use of the term would be ruled out if it shifted too far away from everyday usage. For instance, it accords with its use in ordinary language to label al-Qaeda a “terrorist organization,” but that does not mean that all actions carried out in its name are terrorist acts, contemporary rhetoric notwithstanding. So, it would push ordinary meaning too far to describe transferring money from one al-Qaeda cell to another as a terrorist act; it might by prior to a terrorist act and it might be preparatory to a terrorist act, but it is not itself a terrorist act. In light of these boundaries, the definition of terrorism that Valls settles on leans decidedly toward avoiding morally loaded language, and ends up being very broad because of it. He states that he regards terrorism as “violence committed by nonstate actors against persons or property for political purposes,” and that this definition “leave[s] open the normative issues involved,” while being “reasonably consistent with ordinary language.”19 It is worth noting two implications of holding such a broad

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____________________________________________________________ definition. First, while one can get to Valls’ conclusion without adopting his definition of terrorism, his definition certainly makes it easier to get there. To call a definition broad is simply to say that it includes more examples under it than does a narrower definition. In this case it means that more actions count as terrorism, or at least more clearly count as such, than would be included under a narrower definition of terrorism with more restrictive criteria attached to it. For instance, fewer types of actions would count as terrorism if we include in our definition the idea that terrorist acts are those which tend to induce terror in a population. (I will elaborate on this definition of terrorism below.) What are the important examples that are included under this broader definition of terrorism? While carving out a category of permissible terrorism, Valls gives no examples of terrorist acts that would fit this category. Interestingly, the only examples he does use come in the context of defending the claim that terrorist acts can at least be carefully discriminate. He cites the kidnapping and murder of Aldo Moro by the Red Brigade, the murder of an American diplomat in Uruguay by an anti-government group, and the bombing of the American Marine barracks in Beirut as examples. Focusing on the level of discrimination of acts of terrorism is appropriate, for discrimination seems to be the key criterion for separating broader from narrower definitions of terrorism. Broad definitions readily allow cases of highly discriminate acts of political violence, such as the cases of political assassination mentioned above, while more narrow definitions push us back toward emphasizing more indiscriminate acts of political violence, ones that harm or terrorize people independent of their level of responsibility. If any examples of terrorism are going to be justified, they will have to be examples of just, proportionate, etc., highly discriminate political violence (tyrannicide, perhaps?), and it will be easier to accommodate them under a broad definition of terrorism. A second point to recognize about Valls' broad definition of terrorism is that it gets perilously close to violating the requirement that we stay within the bounds of ordinary language. One way of violating this proviso is to apply a term to circumstances in which it clearly does not fit, i.e., to circumstances in which we would want to apply another term, not terrorism. Consider the following example. A gang of teenage boys ride their skateboards by the mayor's house and rip her mailbox off its post and smash it. Why? Because they are upset with her advocacy of town ordinances restricting the riding of skateboards on downtown streets. I offer this as an example of "violence committed by nonstate actors against persons or property for political purposes," though it is clearly not an example of terrorism. Anyone who used the word terrorism in this context, I can only imagine as speaking euphemistically, for what we have here is an example of petty crime, of vandalism.

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____________________________________________________________ So, my suspicions about a very broad definition of terrorism push me toward adopting a somewhat narrower definition. Let me suggest such a narrower definition, one that Valls rejects precisely because of the proviso that makes it narrower.20 Virginia Held, in her article, “Terrorism, Rights, and Political Goals,” offers a definition of terrorism that varies only slightly from the one we have been discussing. She describes terrorism as “a form of political violence to achieve political goals, where creating fear is usually high among the intended effects.”21 In other words, Held’s definition re-introduces the terror back into terrorism. Valls objects to this addition because causing fear is “nonessential” to an act being terrorism; interestingly, Held agrees. But to focus on whether causing fear is a necessary part of defining terrorism is to miss the point. What Held’s definition adds is not a necessary condition of terrorism, but a frequently experienced aspect of terrorism and one that brings us much closer to the core of ordinary usage. As I pointed out above, terrorism is a broad term. Trying to pin down its essential elements is a very difficult task, as many authors have pointed out.22 But if we look at both our experience of terrorism as well as our most common use of the word terrorism, we will find that inducing fear in a population is a very important, though not essential, element of terrorism. 5.

Conclusion So, what is the upshot of this disagreement over the definition of terrorism? What I want to argue is not that Valls is wrong that there is a wide array of acts of terrorism and that some of them may be justified. Rather, I hope to have shown why examples of justified terrorism are isolated ones and why it is not so surprising that we might count them as permissible. From what has been suggested above, it is clear that if there are examples of terrorism permitted under just war theory, they will have to meet a number of challenging requirements. They will have to be acts of political violence that are proportionate and effective, done in support of a just cause, and not immoral in themselves. Additionally, they will have to be more, perhaps very much more, discriminate rather than less discriminate or indiscriminate in who is targeted for attack. It is this last criterion that creates the greatest challenge to an act of political violence being an act of terrorism. Any act of political violence that meets all of these criteria will clearly be just and very precisely targeted. This fact shows why Valls’ conclusion is not such a dramatic one after all; we would have little room for moral objection to a just and proportionate precisely targeted attack on someone who deserves it, even if carried out by a non-state organization. Yet, such cases are a long way from the acts of terrorism that are currently the focus of so much concern. The terrorist attacks in the United States last fall, the ongoing and escalating acts of

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____________________________________________________________ violence in the Middle East, as well as past terrorist attacks in Ireland, Russia, Japan, and elsewhere around the world, are all highly indiscriminate acts of violence. They represent the violence that we fear. Ending the resort to such violence, and the conditions that give rise to it, is one of the great challenges to the century before us.

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Notes

Aquinas, 1952, 577-581. 2 I am greatly indebted to Brian Orend’s discussion of just war theory in The Stanford Encyclopedia of Philosophy. 3 The tradition also includes a third category, jus post bellum, the conditions for justly ending war, though these will not concern us here. 4 Aquinas, 1952, 578. 5 Ibid. 6 Ibid. 7 Ibid. 8 Ibid. 9 Ibid. 10 Valls, 2000, 65. 11 Nothing I say here rules out the possibility that some political violence by states is illegitimate and amounts to state terrorism, though I do not take up that topic. 12 Walzer, 1992, n. 144-45. 13 Coates, 1997, 238. 14 Wilkins, 1992, 66-7. 15 Walzer, 1992, 146. 16 Valls, 2000, 76, paraphrasing Holmes, 1989, 187. 17 Valls, 2000, 77-9. 18 Valls, 2000, 66-8. See also Corlett, 1996, 164-68. 19 Valls, 2000, 68. 20 Valls, 2000, 67. 21 Held, 1991, 64; italics mine. 22 The difficulty of specifying the meaning of terrorism is a common theme in the literature. See Valls, Corlett, or Held for long lists of authors who have struggled with the issue.

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References Aquinas, T. (1952), Summa theologica, Second Part, Part II, question 40, ‘Of war’ in: Hutchins (ed.) Great books of the western world, vol. 20. Chicago: Encyclopedia Britannica. Coady, C.A.J. (1992) ‘Terrorism’ in: Becker (ed.) Encyclopedia of ethics, vol. 2. New York: Garland. Coates, A. J. (1997), The ethics of war. New York: Manchester University Press. Corlett, J.A. (1996), ‘Can terrorism be morally justified?’, Public affairs quarterly, 10/3: 163-84. Held, V. (1991), ‘Terrorism, rights, and political goals’, in R.G. Frey and C. Morris (eds.) Violence, terrorism and justice. New York: Cambridge University Press. 59-85. Holmes, R., (1989), On war and morality. Princeton: Princeton University Press. Orend, B. (2001), ‘War: just war theory’ in: E. Zalta (ed.) The Stanford encyclopedia of philosophy. URL= http://plato.Stanford.edu/ archives/win2001/entries/war/#2. Valls, A. (2000), ‘Can terrorism be justified?’, in: Valls (ed.) Ethics in international affairs. Lanham: Rowman & Littlefield. 65-79. Walzer, M. (1992), Just and unjust wars, 2nd ed. New York: Basic Books. Wilkins, B. (1992), Terrorism and collective responsibility. New York: Routledge.

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Collective and Individual Responsibility for Acts of Terrorism John T. Parry This essay sketches a framework for attributing responsibility and imposing punishment for acts of terrorism. In particular, this essay considers the circumstances under which those who do not take part in a terrorist attack may be punished for it. My ultimate goal is to demonstrate that traditional methods for attributing personal responsibility derived from criminal law will apply equally well to terrorist acts. Further, I wish to suggest that there is little need to adopt broader and more dangerous ideas of collective responsibility and guilt. Throughout this essay, I will use the September 11, 2001 al Qaeda attacks on the World Trade Center in New York City and the Pentagon building in Arlington, Virginia as my baseline examples. I have some concern that the magnitude and closeness of these atrocious events could warp my efforts to assess or construct a general framework, because extreme situations often provide a poor starting point for the derivation of general rules.1 Yet I also am at a loss in coming up with a definition of a normal terrorist act in terms of scope or damage, because even unsuccessful terrorist attacks more often than not derive from and give rise to intense and painful thoughts and emotions. Similarly, a series of lesser terrorist acts could have cumulative effects similar to those of the September 11 attacks. Responsibility, and especially the nature and possibility of collective responsibility, are slippery concepts. Thus, in The Question of German Guilt, Karl Jaspers suggested four distinct versions of responsibility or guilt: criminal, political, moral, and metaphysical.2 I will use these categories as a guide here. Jaspers' categories are not the only available categories, but they represent a reasonable attempt to be more precise about degrees and kinds of responsibility, and they allow me to begin with criminal law and work out to more speculative territory. Because of that starting point, this essay makes no claim to being a comprehensive survey of the various legal, diplomatic, moral, and philosophical methods of attributing responsibility for terrible events. Jaspers' ideas of criminal and political guilt highlight the connection between responsibility and the violent punishment inflicted by the state in response to harmful acts.3 In the context of terrorism, these ideas introduce the question of whether and to what extent one country can be justified in imposing harm on other people or countries because of their connection to terrorist acts, if that connection falls short of what we would ordinarily require as a prerequisite to criminal punishment. One conclusion of this essay is that concepts of responsibility that correspond

108 Collective and Individual Responsibility for Acts of Terrorism ____________________________________________________________ roughly with Jaspers' ideas of moral or metaphysical guilt provide an insufficient basis for state-sponsored punishment, and that political guilt provides only an unsteady basis for such punishment. More importantly, a just attribution of responsibility – if it will lead to tangible punishments – requires the sort of careful assessment of context and circumstances that is in inevitable tension with notions of collective guilt. 1. Terrorism and Criminal Responsibility A. Individuals and States At the most basic level, a terrorist attack is the violent action of an individual or group of individuals that causes harm to persons or property.4 Stripped of the context of terrorism, these kinds of actions are almost always criminal acts under the laws of most governments. Familiar criminal prohibitions against murder, attempted murder, aggravated assault, arson, and destruction of property will usually apply to terrorist acts, although the United States has also enacted a series of criminal statutes addressed specifically to terrorism.5 In general, moreover, there is no reason why terrorist acts cannot be punished through ordinary criminal prosecutions. In the United States, for example, federal prosecutors have brought successful cases against the Unabomber, the Oklahoma City bombers, and the people responsible for the first attack on the World Trade Center. Obstacles to ordinary trial proceedings may exist in some cases, but criminal procedure is usually flexible enough to manage these difficulties.6 Not every terrorist attack, however, is the work solely of an individual or group of individuals. Some terrorist acts are state-sponsored (for example, support for al Qaeda from the then-government of Afghanistan, or Libyan support for terrorist attacks in Europe). Although there is debate about whether government acts can ever be labelled “terrorist,”7 adding government to the mix does not make the acts themselves less criminal. Nor does the presence of government sponsorship confer immunity on the sponsored terrorists. One of the legacies of the postWorld War II Nuremburg trials is the principle that individuals are responsible for crimes committed during and in support of a war effort; neither low nor high level officials can hide behind the government.8 Indeed, the prosecutions following the My Lai massacre indicate some general acceptance in the United States of the proposition that individuals will be held liable for atrocities committed under colour of state authority. If wartime activities are subject to criminal sanction, then state-sponsored terrorism should be as well. Although criminal prosecutions can reach state-sponsored terrorism, the presence of government sponsorship adds complexities.

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____________________________________________________________ Bringing high officials of another government to justice could require military actions, such as the U.S. invasions of Panama and Afghanistan. In addition, the presence of state action could lead to calls for international tribunals, as in the case of the war crimes (some of them equally classifiable as terrorist acts) that are the subject of investigation and prosecution by the International Tribunal for Yugoslavia. More generally, as Ruti Teitel has argued in the context of transitions between political regimes, justice in such cases is likely to be even more contextualized and partial than in ordinary cases.9 The important question, therefore, is not whether individual terrorists can be criminally punished for terrorist acts committed under the authority or sponsorship of a government. They surely can be. The question is whether state involvement in terrorism justifies punishment of that state for its role and, if so, to what extent that punishment can be visited on the citizens of that state – remembering, of course, that it is difficult if not impossible to punish a state without punishing its citizens. I will return to this question later in this essay. B. Necessity If ordinary principles of criminal responsibility apply to terrorists, we must consider – as we would in an ordinary criminal case – the motivations and circumstances of their acts. For example, a defense of justification or necessity is theoretically available in most criminal proceedings. The defense turns on the claim that the defendant’s conduct was appropriate and not punishable because it was the lesser evil or even the right thing to do under the circumstances. Thus, if an investigator used torture on a terrorist who had refused to divulge information about an imminent attack, the investigator could claim necessity – that the greater evil of the attack outweighed the lesser evil of torture.10 Similarly, the American Law Institute's Model Penal Code would allow necessity as a defense to homicide.11 Consider, for example, if the brakes fail on my car, and I intentionally run over one person on the street in front of me rather than swerve into the crowds on either side.12 Whether the claim of necessity would succeed at trial in either case is another matter, of course, but most theorists recognize both that the defense should be available and the possibility that it could succeed in such cases. Most terrorists, I suspect, could raise justification claims about their own actions.13 To the charge of murder, for example, they might claim that violent action is the only way to stop the destruction of their culture or religion or to end U.S. support for Israel. Moreover, they might claim that other, more legitimate efforts have failed. From their perspective, their conduct may indeed be justified; the death of some

110 Collective and Individual Responsibility for Acts of Terrorism ____________________________________________________________ individuals could be far less an evil than loss of a culture or the future deaths of many more persons at the hands of the terrorists' enemies. Nor can we reject these arguments out of hand. Although it had fallen out of fashion even before the September 11attacks, people across the U.S. political spectrum used to assert (perhaps more rhetorically than literally) that one person's terrorist is another person's freedom fighter. Few of us can claim to be part of a culture that has not killed large numbers of people to preserve itself, and many countries have knowingly allied with or supported regimes that murder. These actions or alliances are justified in part by a crude utilitarianism but even more by assessments of facts (including perceived threats) and value choices, and these assessments and choices lie at the heart of the concepts of necessity and justification.14 Indeed, without a baseline value choice of some kind, accepting or rejecting necessity claims in the terrorism context – or indeed in any context – may require weighing incommensurable values.15 I am not trying to suggest that the September 11 attacks – or indeed any specific terrorist attack – should in fact be considered justified under the necessity defense. Nor am I blithely asserting that all values are relative. My point is simply that different choices of values generate different perspectives, and these perspectives could have consequences for efforts to attribute responsibility. Outside the United States, and particularly in non-Western countries, some cheered the September 11 attacks, and many more shrugged their shoulders in indifference or even acceptance. These reactions presumably reflect factual assessments and value choices that, however much I might disagree with them, provide fertile ground for necessity claims. In the face of necessity claims in more ordinary cases, courts have erected high hurdles against the defense. A defendant must show that the harm he sought to avert was imminent and that there was a fair chance his actions would prevent the threatened harm. Moreover, courts usually assess these questions objectively rather than subjectively, by asking whether a reasonable person could believe that the threat was imminent and that his harmful conduct was likely to prevent the greater harm. Some courts go further and allow the defense only if, in fact, the harm was imminent, greater, and likely to be averted. The addition of imminence and causation requirements restrains the balance of harms inquiry and makes it unlikely – to say the least – that a Western court would ever find that the necessity defense justified terrorist acts.16 Yet even without such requirements, terrorists would fail in the effort to claim necessity because our courts would refuse to validate the value choices implicit in such claims. That is, a court would have no trouble making a moral judgment that the defendants' claim of "guiltless sincerity" does not mitigate their responsibility.17

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____________________________________________________________ 2.

Terrorism as an Assertion of Responsibility In most legal systems, terrorism fails under the necessity defense. But there is another, less legalistic way to discuss the justification claim. A terrorist could claim that the link between the grievance and the target of the attack was morally sufficient, because the target was in some way responsible for the attack. Thus, the attack, even if not necessary, may be justified. A group of Russian human rights activists and organizations recognized this possibility when they declared after the September 11 attacks that the targeting of civilians demonstrated "the consequences of applying the principle of 'collective blame,' in their worst possible form."18 Indeed, Osama bin Laden asserted in a November 2001 interview that American citizens were targeted in those attacks because they are responsible for the wrongdoings of their country: The American people should remember that they pay taxes to their government, they elect their president, their government manufactures arms and gives them to Israel and Israel uses them to massacre Palestinians. The American Congress endorses all government measures and this proves that the entire America is responsible for the atrocities perpetrated against Muslims. The entire America is responsible because they elect the Congress.19 Similarly, Jaffar Umar Thalib, the Indonesian cleric and leader of Laskar Jihad, contended after September 11 that "The policy of any government . . . especially a democratically elected government like the U.S., is also the responsibility of all the people who supported it. The people run the risk of the results of those policies."20 Put bluntly, some acts of terrorism should be understood as assertions that the victims of the act are responsible for the grievances of the terrorist.21 There is a logic to claims of this kind. First, as Jaffar suggests, the fact that the United States is a democracy could support a greater degree of responsibility on the part of its citizens for its acts – an issue that I will return to later. Second, the attack on the Pentagon targeted the U.S. military, and can be interpreted as an act of war, or at least as less of a terrorist act because the military was the target. The U.S.-led bombing of Serbia in 1999, for example, targeted similar facilities. While that fact does not mean that such facilities are automatically legitimate terrorist targets as well, it does underscore the strong links between military facilities and government policies. Moreover, although I think it is insufficient, there is at least a visible link between the U.S. military and

112 Collective and Individual Responsibility for Acts of Terrorism ____________________________________________________________ the grievances of people like bin Laden – for example, the presence of U.S. military forces in Saudi Arabia and U.S. military aid to Israel. The World Trade Center presents a different situation, however. According to Jaffar, such "economic facilities" are legitimate targets,22 but the logic in support of his claim is more difficult to assemble. The people who died in the World Trade Center by an overwhelming margin were not soldiers or policymakers. Most of the people in the buildings held ordinary jobs; they were fire fighters, custodians, secretaries, computer technicians, and food service employees. A relatively small percentage of the victims were part of what one might term the financial-capitalist apparatus that supports U.S. economic power (or, more pejoratively, U.S. economic imperialism). But few of these people had direct connections to the Middle East-centred grievances that generated the September 11 attacks; their focus was more likely to be the U.S., Europe, Japan, or more stable emerging markets. Even if some among this group had direct connections to the Middle East, their connection to the grievances brewing there is tenuous, while the attribution of a share of responsibility for those grievances is speculative and in any event probably minor. Finally, the conclusion that these individuals deserve death as punishment for their possible share of responsibility simply does not hold up. Responsibility under these circumstances seems initially to fall within Jaspers' category of metaphysical guilt: the guilt we all share in allowing bad things to happen, in failing to help others, in taking actions that may harm others in some way, and in continuing with our ordinary lives when we know that too many others are utterly miserable and that sometimes their misery supports our own lives.23 Emmanuel Levinas develops a similar idea: My being-in-the-world or my “place in the sun,” my being at home, have these not also been the usurpation of spaces belonging to the other man whom I have already oppressed or starved, or driven out into a third world; are they not acts of repulsing, excluding, exiling, stripping, killing?24 For Levinas, these observations lead to "[a] fear for all the violence and murder my existing might generate, in spite of its conscious and intentional innocence."25 The consequence is “[a] responsibility that goes beyond what I may or may not have done to the Other or whatever acts I may or may not have committed . . . . A guiltless responsibility.”26 Under frameworks of this kind, we cannot escape responsibility by claiming we were unaware of others' misery or that we committed no affirmative act to create that misery. Under these conceptions, therefore,

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____________________________________________________________ those who died in the World Trade Center are responsible. Importantly, however, so too are all of us, including the members of al Qaeda, and we are all responsible not just for the grievances of the terrorist but also for the results of their attacks. This kind of responsibility is clearly a form of collective responsibility, but it is too sweeping to provide a basis for punishment – or indeed, I would argue, for any meaningful remedy. Thus, without denying the force of such responsibility as an ethical or philosophical matter, I think it does little to answer the question of how terrorism intersects with the more constrained ideas of responsibility that we might attempt to apply in practice. For some smaller number of the people in the World Trade Center, one might be able to establish a stronger personal moral guilt for having some direct role in the creation of human misery and, more specifically, the grievances that motivated al Qaeda. As Jaspers contended, "every deed remains subject to moral judgment."27 Attributing responsibility in this way has some relationship to the claims during and after the Vietnam War that U.S. governmental, business, religious, and academic elites were "morally complicit" – that is, blameworthy even if not legally guilty – for the scale and consequences of the war.28 In contrast to metaphysical guilt, this kind of moral guilt could, at least conceptually, merit some tangible remedy. Moral and criminal responsibility often overlap.29 But when criminal responsibility does not attach, moral guilt alone cannot support any meaningful imposition of violent punishment, unless we are willing drastically to expand the parameters of conduct subject to such punishment. Punishing the morally guilty would require more laws and more institutions devoted to investigating, prosecuting, judging, and jailing – in short, a significant expansion in state power and corresponding decrease in ordinary liberty. Moreover, in many cases of moral guilt, proof of an intent to cause harm – as opposed to awareness that harm could happen – will be difficult to establish. Yet proof of criminal intent is a prerequisite to serious punishment.30 Finally, punishment usually falls on those who cause the proscribed harm. Causation is a malleable concept. Most of us are linked by causal chains to a variety of events around the world. But for our actions, and the actions of those like us, some of the bad things in the world might not happen. We are thus responsible to some degree, but in a way that approaches metaphysical responsibility. The responsibility that leads to punishment requires a closer causal link, and courts in the United States use the idea of proximate causation to describe this link. The idea of proximate causation captures the policy judgment that there is a point beyond which we do not punish, despite the existence of a causal chain between action and harm, because we make a judgment that a particular

114 Collective and Individual Responsibility for Acts of Terrorism ____________________________________________________________ person's role is too remote.31 For the overwhelming majority of those in the World Trade Center, nearly any court would conclude that the causal chain is nonexistent or simply too remote. If the victims of the September 11 attacks have any meaningful responsibility for the grievances that led to those attacks, it can only be what Jaspers calls political responsibility. And, indeed, as my earlier quotations of Osama bin Laden and Jaffar Umar Thalib make plain, political guilt appears substantially to overlap with common notions of collective responsibility. The next section will approach this issue through a more precise articulation of how we can assign responsibility for terrorist attacks. 3. Responsibility for Terrorist Acts A. Criminal Responsibility for Terrorist Acts To gain a criminal conviction in the United States, the government must prove beyond a reasonable doubt that the defendant engaged in conduct that is recognized by law as criminal. But criminal liability is not limited to the one who pulls the trigger. Federal law in the United States, which is similar to the laws of many other countries on this issue,32 provides that whoever "aids, abets, counsels, commands, induces or procures" the commission of a crime "is punishable as a principal"33– that is, will be treated the same as the actual perpetrator. In addition, anyone who, "knowing that an offense . . . has been committed, receives, relieves, comforts or assists [an] offender in order to hinder or prevent his apprehension, trial or punishment" is considered an accessory after the fact and subject to half of the maximum punishment for the underlying offense.34 With respect to terrorism, therefore, anyone who plays an intentional role in a terrorist attack is criminally responsible for the attack, with primary responsibility for those involved prior to or during the attack. Note particularly that those who counsel or induce the commission of a crime are considered equally as guilty if they intend that the act be committed. (Generalized exhortations to violence or unintentional encouragement do not support criminal liability under U.S. law, however.) Moreover, corporate or group entities are responsible for the acts of their agents.35 So, some but not all members of al Qaeda would be liable as accomplices for the September 11 attacks, as would be anyone from another terrorist group or from the Taliban who intentionally assisted them. To the extent it has or had a formal structure, al Qaeda itself would also be criminally liable for the acts of its members. In addition, U.S. federal law creates the separate crime of conspiracy, which exists whenever "two or more persons conspire together to commit an offense . . . and one or more of such persons do any act to

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____________________________________________________________ effect the object of the conspiracy."36 A defendant is liable for conspiracy whether or not the crime that is the object of the conspiracy is ever attempted. Moreover, the scope of conspiracy liability is broad. A member of a conspiracy is guilty of any reasonably foreseeable crimes committed by any other member of the conspiracy in furtherance of the conspiracy – whether or not he knew about those crimes.37 While they cover similar territory, accomplice liability and conspiracy liability are distinct. Conspiracy is the separate substantive crime of agreeing to engage in criminal behaviour, while accomplice liability arises from actual assistance in the commission or attempted commission of an underlying crime. Thus, one can be an accomplice without being a conspirator, and one can conspire without ever acting as an accomplice.38 Conspiracy law considerably expands the scope of criminal responsibility because it focuses directly on intentional association as a basis for criminal liability. Arguably, al Qaeda itself is a conspiracy with the purpose (perhaps only one of many purposes) of committing terrorist acts against the United States and its residents. Even if al Qaeda – or any other terrorist group – were organized into cells, so that most members would have little or no knowledge of the actions of other cells, their common agreement and expectations could make all members criminally liable under U.S. law for terrorist acts committed by any one cell. Large numbers of the Taliban could also be conspirators, although perhaps not those who were allied with the Taliban for political or military purposes but did not share all of its goals. Conspiracy liability is extremely broad and for that reason has been the subject of some criticism, as indeed, has accomplice liability.39 Nonetheless, criminal liability for conspiracy – like accomplice liability – still rests on an individualist conception of responsibility. Only those who voluntarily enter into the conspiracy are liable, and only for acts that they could reasonably have foreseen. A third group of U.S. federal criminal laws reach those who intentionally provide "material support" to terrorists or foreign terrorist organizations,40 whether or not such defendants are also conspirators or accomplices. These provisions expand the substantive reach of the criminal law beyond more familiar crimes and more basic concepts of conspiracy and accomplice liability.41 Thus, traditional as well as more targeted substantive crimes and concepts of criminal liability provide tools for prosecuting nearly anyone who consciously assists, joins with, or takes part in terrorist activity. The next section considers whether additional forms of responsibility add anything of value or whether they create risks best avoided.

116 Collective and Individual Responsibility for Acts of Terrorism ____________________________________________________________ B. Political Responsibility for Terrorist Acts The hard issue is how far – if at all – beyond criminal law we should go in imposing punishment for terrorist acts. For Jaspers, all Germans were politically guilty for the crimes of the Third Reich and would have “to bear the consequences of the deeds of the state whose power govern[ed] [them] and under whose order [they] live[d]."42 But he also stressed that political guilt is not the same as individual criminal or moral guilt.43 Like other forms of guilt, however, “political liability is graduated according to the degree of participation in the regime.”44 The appropriate punishment of the politically guilty is also political, although possibly violent as well: "loss or restriction of political power and political rights . . . . If the guilt is part of events decided by war, the consequences for the vanquished may include destruction, deportation, extermination."45 Recent events make clear that we live in a world that continues to take seriously the possibility of collective guilt. Assertions of collective responsibility go beyond claims that groups or nations are themselves guilty,46 to include as well the claim that members of communities that have perpetrated violence bear some responsibility for that violence even if they have not themselves acted.47 For example, recent commentators have asserted the guilt of well-off white citizens of Los Angeles for the brutality of their police,48or of Serbs for the crimes of their government in Bosnia and Kosovo.49 Often, these assertions stop with the claim of guilt and say little about the consequences of that guilt, particularly the appropriate punishment, if any. One strength of Jaspers' analysis is that he attempts to attach different consequences to the different forms of guilt that he defines. If we are serious about collective responsibility, then we need to develop ways of saying exactly what it means to hold an entire community responsible. Consider a religious leader who preaches hatred of a particular group or country. Some of his listeners are motivated to engage in terrorism. Is that religious leader responsible for that terrorist act? Without any intent to encourage the commission of a specific criminal act, there is no criminal liability for the statements – yet there remains an obvious link both in terms of a less targeted intent and a degree of causation. His individual moral guilt seems clear. But should we also say that the leader and his followers are collectively guilty in some additional sense? If so, what is the punishment? Consider, too, the members of a crowd who demonstrate against a particular group or country. Perhaps flags or effigies are burned. If the demonstration inspires one member of the crowd to engage in a terrorist act, should we draw a link from the collective act of demonstrating to the act of terrorism? Certainly there is no criminal liability, but is there moral

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____________________________________________________________ or political responsibility? Again, there may be some general intent and remote causation, although not as much as with the religious leader. And again, if we think the crowd is responsible, what is the appropriate punishment? As Christopher Kutz and Larry May have noted – essentially agreeing with Jaspers on this point – the degree of individual complicity for a collective act varies according to the scope of one’s contribution to the act.50 Such factors as voluntary association with the group, individual fault, ability to control or influence the group, specific duties within the group, the causal impact of one’s actions, if any – all of these can play a role in differentiating who is responsible for collective action, and to what extent.51 Thus, the religious leader or the leaders of the demonstrating crowd are probably more responsible, particularly in terms of moral or political responsibility, than the other members of the group. Yet this analysis simply raises once again the question whether responsibility attaches beyond the context of individual action. For example, what about the citizens of a country that supports terrorism? Does their membership in that community – without more – translate into a meaningful degree of responsibility for those actions? Certainly, if a community engages in or supports violence, it may face retribution. Indeed, international law has a great deal to say about the circumstances in which one country may intervene in or go to war with another country and the way in which such operations should be conducted. And, of course, one consequence of political violence is the deaths of individuals who form the communities involved. Put differently, the violence of one community often causes harm to members of other communities and often has harmful repercussions for its own members as well. As Michael Walzer explains, "citizenship is a common destiny, and no one, not even its opponents . . . can escape the effects of a bad regime, an ambitious or fanatic leadership, or an overreaching nationalism."52 It does not follow, however, from the fact of these consequences that the members of the community have received a just punishment as individuals. Rather, the idea of political guilt is flawed to the extent it includes the claim that collective guilt by itself justifies violent punishment of individuals. Jaspers' political guilt seems to derive in part from a combination of fatalism and a kind of legal positivism. In other words, it is simply the case that those on the losing side of a political dispute – whether or not violent – will lose rights or privileges. When this result happens at the level of international relations, some of those who lose rights and privileges will do so only because of their presence in the losing political community and regardless of their role in or support of that community. The concept that Jaspers calls "political guilt" and the consequences that flow from are thus synonymous with the bad treatment

118 Collective and Individual Responsibility for Acts of Terrorism ____________________________________________________________ imposed by victors on the vanquished, and the right of the victor to impose this treatment follows solely from the victory – from the fact of power and not from any larger moral claim. (Again, however, international law or moral theory may provide a justification for a limited amount of bad consequences.) The collective "responsibility" akin to Jaspers' concept of political guilt is thus not responsibility in any sense that we commonly accept as a legitimate basis for punishment. Particularly for those who had little political involvement in the guilty regime, it is guilt by involuntary association, by presence alone. As Jaspers and Walzer recognize, we must accept the fact that individuals will suffer the consequences of their community's actions. But we should not theorize these consequences into a category of responsibility. Attribution of guilt often leads to imposition of punishment. Indeed, the terms guilt and responsibility, when applied collectively, risk providing a mask for inflicting undeserved harm on otherwise blameless individuals, or for simply engaging in over-inclusive retribution.53 Thus, we cannot afford to be careless with the concepts of guilt and responsibility. In a recent essay, George Fletcher challenges liberals to take seriously what he describes as a "romantic" conception of collective guilt that can give rise to collective obligations. Under Fletcher's theory, which also uses Jaspers' categories as a touchstone, collective guilt is moral, not just political.54 Fletcher also considers the consequences of asserting collective guilt: The overall tendency in the discussion of collective guilt is to assume that the idea should be likened to repressive measures against people whom liberals would regard as innocent because they in fact did nothing. The great challenge in the area is to develop a humanistic approach to collective guilt that would lead to mitigation of punishment for those whom liberals would regard as guilty rather than to the sanctioning of those treated as innocent bystanders. The way to do this is to think about the distribution of guilt between the individual perpetrator and the nation in whose name he or she acts.55 In other words, for Fletcher, the idea of collective moral guilt leads, not to collective punishment, but rather to less criminal punishment for the individuals who act in the name of the nation or group. What Fletcher's theory means in practice is that "guilt must be measured and distributed in relative degrees of participation," and that the participation of the state or group should be part of the calculus.56 More

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____________________________________________________________ specifically, collective guilt bears on the guilt and punishment of individuals. This variation on collective responsibility is appealing but potentially dangerous in hands other than Fletcher's, because imposing collective guilt on the group, once justified, could too easily be used as a reason to punish those who did nothing rather than to mitigate the guilt of those who acted. Still, one of the strengths of Fletcher's analysis is his use of collective responsibility to lead us back to assessing personal responsibility for collective acts. As I have already noted, individual responsibility for a collective act turns to a large extent on the degree of an individual's involvement with the wrongful conduct. In the same spirit, I want to focus on two distinctions that might be helpful in assessing the political responsibility of those who are not criminally liable for acts of terrorism. First is the distinction between endorsement and acquiescence.57 In some rough sense endorsement can be analogized to intent, so that those who associate themselves with terrorists or their conduct are more responsible than those who only acquiesce in the conditions or possibilities that make terrorism possible. The second distinction is between those with the power and opportunity to help or hinder terrorist acts, and those without such power or opportunity, so that these with power are more responsible than the powerless for the actions that they sought to assist or simply failed to prevent. Both distinctions, moreover, stand opposed to those who in fact resist or disassociate themselves from acts of terrorism – although the ability to disassociate may itself require a degree of power that many will not possess. I also want to propose that the power/powerless distinction is more critical than the endorsement/acquiescence distinction. Put crudely, powerful people who endorse terrorist acts are more culpable than powerful people who do not endorse such acts but also do nothing to stop those acts, who in turn are more culpable than powerless people who endorse terrorism. The powerless who refuse to endorse but acquiesce in these acts bear the smallest share of responsibility, and I am loath to raise it to a level much higher than Jaspers’ idea of metaphysical guilt. One way of expressing endorsement for the actions of a government is through political participation. Voting is also an exercise of power, albeit a small one – and I also want to use it as a shorthand for a variety of forms of political participation that may also be available to citizens in a functioning democracy. Indeed, I suspect that when commentators assert the collective guilt of Serbs or residents of Los Angeles, one basis for that assertion is that political responsibility flows in part from some ability to engage in meaningful political activity at critical points.

120 Collective and Individual Responsibility for Acts of Terrorism ____________________________________________________________ Political participation provides an uneasy basis for asserting responsibility. Indeed, we would go too far were we to claim that the power to vote equals responsibility for the acts of one's government, or even that voting in favour of a government necessarily creates a share of responsibility for its acts. At the same time, however, responsibility, even if only limited and partial, could certainly attach to those who exercise their political power to support policies with significant knowledge of or expectations about the consequences of those policies. There is at least one other way that political participation is linked to responsibility. If the ability to vote can play a role in assessing responsibility, the powerlessness associated with the inability to vote – and the corresponding uncertainty as to whether or not one has endorsed the goals of a government – must indicate a lesser level of political responsibility. Thus, the responsibility of Afghanis who had no say in whether the Taliban should govern or not, and especially those who did not provide support of one kind or another to that government, should be minimal. From this analysis, we must consider the consequences of asserting or denying this kind of responsibility, in particular whether those who are injured by terrorism or who in some legitimate way represent the injured can insist on a remedy or punishment of some kind. My sense is that the political guilt of the al Qaeda group and the Taliban regime, of those individuals who assisted or conspired in terrorist acts, and, importantly, of those who endorsed those acts when they had power to thwart them, justifies the full range of political sanctions – including violent sanctions – that are ordinarily available under domestic or international law. Those who had power to resist but did nothing are a harder case, but I see no basis for strong forms of violent punishment (as opposed to more ordinary moral or less violent political sanctions). As for the powerless, whether or not they endorsed terrorism, their share of responsibility, I would argue, is too small to merit any significant punishment. Although far from perfect, the U.S. response to the September 11 attacks did indeed focus on the relatively powerful and others who voluntarily associated themselves with the Taliban and/or al Qaeda. Despite heated rhetoric from some corners of the country, the U.S. made no effort to punish the people of Afghanistan. Moreover, the Bush administration asserted that its quarrel was only with the Taliban and al Qaeda, and its subsequent actions seem to bear out that claim. In addition, the U.S. and its allies have made at least some attempt to improve the lot of ordinary Afghanis. Thus, although the U.S. response to the September 11 attacks was not required and may not have been ideal in all respects,

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____________________________________________________________ the way it was carried out was roughly consistent with the framework of responsibility that I have suggested. One test of my framework is how it applies in other situations. Thus, in addition to considering the people of Afghanistan, we should again consider the responsibility of U.S. citizens for the grievances that allegedly fuelled bin Laden’s terrorist desires. Does voting for candidates who support Israel or the maintenance of military bases in Saudia Arabia indicate responsibility? Does support for other, less tangible U.S. policies create meaningful guilt? I have already suggested that few in the U.S. have significant moral responsibility, and I think the same is true for political guilt. Still, those whose political activities support U.S. policy have a greater responsibility than citizens of countries who lack the ability to participate. The same, I think, is true for people whose jobs or power give them greater ability to impact the lives of people in the Middle East. Just as with the people of Afghanistan, therefore, some U.S. citizens do indeed have a share of political responsibility for the actions their government. But political responsibility is not the same in all contexts, and thus the responses to it cannot be the same across the board. While many members of the Taliban and al Qaeda may merit some form of violent punishment, I want to argue that the same is not true for politically responsible U.S. citizens. First, it is not enough to say that someone is responsible. We still must determine how much responsibility that person bears. For example, bin Laden wanted the U.S. military out of Saudi Arabia. The Saudi government surely deserves far more responsibility for this grievance than individual citizens who support the operation of U.S. bases abroad. The responsibility of U.S. citizens is far more diffuse, and from the language of causation we might say that the role of a U.S. citizen is simply too remote. Second, we must determine what we are responsible for. What kind of harm is created by bases in Saudi Arabia? While many Saudis might be offended for religious reasons, the presence of the bases imposes no physical harm on them. U.S. aid to Israel is a harder question, of course, and far too much has been written on the history and present circumstances of the Arab-Israeli conflict for me to add much of value. Yet it is certainly significant that the conflict would exist even without U.S. aid, that U.S. aid may help maintain a balance of power that possibly prevents even worse violence, and that neither side can claim entirely the status of the victim in the conflict. Moreover, unlike al Qaeda's targeting of U.S. citizens, the U.S. (let alone its individual citizens) has not adopted a policy of killing, for example, ordinary Palestinians in order to further policy goals.

122 Collective and Individual Responsibility for Acts of Terrorism ____________________________________________________________ In short, I am arguing that U.S. actions for which individual citizens arguably could be held responsible are simply not as culpable as the actions of al Qaeda, even if these actions are not morally desirable. Justifying violent punishment against those who know or should know that they have some responsibility for the grievances of terrorists would, in effect, declare open season on the members of democratic societies who act in their own self-interest. Whatever their responsibility for their selfinterested behaviour, violent punishment simply goes too far. These observations, of course, simply reflect my judgment, not an objective conclusion. The same would be true, I think, for anyone else who makes assertions one way or the other about these issues. We thus end up with a framework within which to argue, not a formula that generates clear conclusions. This framework, moreover, depends for its outcome on and is only as good as the moral choices we bring to it. As we argue about who is responsible for terrible acts, therefore, we should do so with humility and caution, especially when we consider the consequences that may attach to debatable claims of collective or individual responsibility.

1

Notes

As a leading legal ethics text explains, The danger of such extreme examples is that, by focusing our attention on the rare and exceptional, they may train us to see moral choice only when it is presented in stark terms . . . . The hard ethical questions in life arise not only in those rare instances that mirror the moralist's stark hypotheticals, but also in the vaguer, infinitely more complex arena of ordinary life (Hazard, 1999, 312). 2 Jaspers, 1947, 31-2. 3 By describing punishment as violent, I mean simply to describe how law necessarily operates. As Robert Cover observed: The relationship between legal interpretation and the infliction of pain remains operative even in the most routine of legal acts. The act of sentencing a convicted defendant is among these most routine of acts performed by judges. Yet it is immensely revealing of the way in which interpretation is distinctively shaped by violence. First, examine the event from the perspective of the

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____________________________________________________________ defendant. The defendant's world is threatened. But he sits, usually quietly, as if engaged in a civil discourse. If convicted, the defendant customarily walks – escorted – to prolonged confinement, usually without significant disturbance to the civil appearance of the event. . . . But I think it is unquestionably the case in the United States that most prisoners walk into prison because they know they will be dragged or beaten into prison if they do not walk (1986/1607). 4 The effort to define terrorism encounters a broad range of difficulties and leads to a variety of approaches and conclusions (Schmid, 1993), but nearly all definitions assume the basic assertions I make in the text. 5 18 U.S.C. §§ 2331-1339B. 6 Heymann, 1998, 105-27. 7 Seto, 2002 1235-1236. 8 Teitel, 2000, 34-5. 9 Teitel, 6. 10 The Supreme Court of Israel endorsed the idea that coercive interrogations could be justified in a 1999 decision, Public Committee Against Torture in Israel v. Israel, and most commentators agree that government officials charged with torture should have the opportunity to raise the necessity defense to justify their actions (Parry & White, 2002). 11 MPC § 3.02. 12 The Model Penal Code also allows defendants to raise duress as a defense to murder (MPC § 2.09). Both claims are controversial and many jurisdictions reject them. Joshua Dressler's criminal law treatise provides a good, concise discussion and collection of authorities on the application of the duress and necessity defenses to murder charges (Dressler, 2001, 292-96, 303-07). 13 Walzer, 2000, 203-04. 14 Parry, 1999, 437-40. 15 Parry, 416-420; Seto. 16 In a roughly analogous context, necessity claims usually fail in civil disobedience cases, which sometimes involve destruction of government property but, rarely, if ever, rise to the level of terrorism (Parry, 1999, 400-01). On the other hand, in cases in which an act might be considered terrorist if committed by an outsider—as in the use of torture as discussed in note 10–courts might allow the necessity defense if the act protected the community to which defendant and court both belong. 17 Fletcher, 2002, 1553-54. 18 Kovalev, 2001, 73. 19 Drajem, 2001. 20 Marshall, 2002, 47.

124 Collective and Individual Responsibility for Acts of Terrorism ____________________________________________________________ 21

Of course, the fact that many terrorist attacks can be interpreted as assertions of collective responsibility does not preclude other motivations or explanations. Michael Walzer suggests that terrorism is an effort to spread fear by random killing of innocents (2000, 197). Such attacks, and less random ones as well, could be straightforward efforts to inflict pain on an enemy and thereby force a change in policy. Other attacks, of course, may be essentially unreasoned and meaningless violence. 22 Marshall, 47. 23 Jaspers, 32. 24 Levinas, 1989, 82. 25 Levinas, 82. 26 Levinas, 83. 27 Jaspers, 32. 28 Walzer, 302-03. 29 Fletcher, 1530-31. 30 Dressler, 119-20, 125-6. 31 Dressler, 187. 32 Sofaer, 1989, 99. 33 18 U.S.C. § 2. 34 18 U.S.C. § 3. 35 MPC § 2.07. 36 18 U.S.C. § 371. 37 Blackmon, 1988, 910; Greer, 1972, 1070. 38 LaFave, 2000, 633-35. 39 Kutz, 2000, 220-36. 40 18 U.S.C. §§ 2339A, 2339B. 41 The Racketeer Influenced and Corrupt Organizations statute (RICO, 18 U.S.C. § 1961, et seq.) is another source of criminal sanctions that would allow prosecution of individuals and of al Qaeda in the same way that prosecutors might go after a mafia “family.” In United States v. Bagaric, federal prosecutors used the statute to prosecute a group of Croatian terrorists who operated in North America and Europe. 42 Jaspers, 31. 43 Jaspers, 32-3, 61-73. 44 Jaspers, 43. 45 Jaspers, 36. 46 Fletcher; Heymann, 1998, 66-73. 47 Flynn, 1984; Jedlicki, 1990; May, 1990. 48 Cannon, 2000. 49 Erlanger, 1999, A3; Kaufman, 1999, 1. 50 Kutz, 157; May, 1990, 276. 51 Kutz, 201. 52 Walzer, 297.

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____________________________________________________________ 53

Margaret Gilbert defends an idea of collective guilt that "has no implication for the guilt of any particular members" of the collective (2000, 151). To Gilbert, the conclusion that a group is guilty does not lead to specific remedies but rather provides a way for members and nonmembers to think about the meaning and terms of their association or nonassociation with the group and to decide whether to seek changes in the group (151-2). 54 Fletcher, 1529-37. 55 Fletcher, 1537-38. 56 Fletcher, 1539. 57 Jaspers, 69-70.

References American Law Institute (1985), Model penal code and commentaries. Blackmon, United States v., 839 F.2d 900 (2d Cir. 1988). Cannon, L. (2000), 'One bad cop', New York times, 1 Oct., sec. 6: 32+. Cover, R. (1986), 'Violence and the word', Yale law journal, 95: 16011629. Drajem, M. (2001), 'Bin Laden says has nuclear weapons: text of newspaper interview', Bloomberg news, 10 Nov. Dressler, J. (2001), Understanding criminal law. New York: Lexis. Erlanger, S. (1999), 'Independent Serb journalists defend their work', New York times, 6 Oct., A3. Fletcher, G. (2002), 'Liberals and romantics at war: the problem of collective guilt', Yale law journal, 111: 1499-1573. Flynn, T. (1984), 'Collective responsibility and obedience to the law', Georgia law review, 18: 845-861. Gilbert, M. (2000). Sociality and responsibility. Lanham, MD: Rowman & Littlefield. Greer, United States v., 467 F.2d 1064 (7th Cir. 1972). Hazard, G., S. Koniak and R. Cramton (1999), The law and ethics of lawyering. New York: Foundation Press (3d ed.). Heymann, P. (1998), Terrorism and America: a commonsense strategy for a democratic society. Cambridge: The MIT Press. Jaspers, K. (1947), The question of German guilt. E. Ashton (trans.) New York: Dial Press. Jedlicki, J. (1990), 'Heritage and collective responsibility', in: I. MacLean et al. (eds.) The political responsibility of intellectuals. Cambridge: Cambridge University Press. 53-76.

126 Collective and Individual Responsibility for Acts of Terrorism ____________________________________________________________ Kaufman, M.(1999), 'Doing their part; looking for the line between patriotism and guilt', New York times, 11 Apr., sec. 4: 1. Kovalev, S. et al. (2001), 'On the consequences of terrorist acts in the U.S.', New York review of books, 1 Nov., 73. Kutz, C. (2000), Complicity: ethics and law for a collective age. Cambridge: Cambridge University Press. LaFave, W. (2000), Criminal law. St. Paul, Minn.: West Group (3d ed.). Levinas, E. (1989), 'Ethics as first philosophy', in: S. Hand (ed.) The Levinas reader. Oxford: Blackwell Publishers, 75-87. Marshall, A. (2002), 'The threat of Jaffar', New York times, 10 Mar., sec. 6: 45-47. May, L. (1990), 'Collective inaction and shared responsibility', Noûs 24: 269-278. Parry, J. (1999), 'The virtue of necessity: reshaping culpability and the rule of law', Houston law review, 36: 397-469. Parry J., and W. White (2002), 'Interrogating suspected terrorists: should torture be an option?', University of Pittsburgh law review, 63: 743-766. Public committee against torture in Israel v. Israel, H.C. 5100/94 (Sept. 6, 1999), http://207.232.15.136/mishpat/html/en/system/index.html, reprinted in International legal materials, 38: 1471-1490. Schmid, A. (1993), 'The response problem as a definition problem' in: A. Schmid and R. Crelinstein (eds.) Western responses to terrorism. London: Frank Cass and Co. Ltd., 7-13. Seto, T. (2002), 'The morality of terrorism', Loyola of Los Angeles law review, 35: 1227-1263. Sofaer, A. (1989), 'Terrorism, the law, and the national defense', Military law review, 126: 89-123. Teitel, R. (2000), Transitional justice. New York: Oxford University Press. United States v. Bagaric, 706 F.2d 42 (2d Cir. 1983). Walzer, M. (2000), Just and unjust wars. New York: Basic Books (3d ed.).

Part III Blame, Murder, and Retributivism

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Moral Responsibility, Liability, and Perversion: A New Understanding of Wickedness Maria Michela Marzano Rules stating when mental disorder can reduce or abolish someone’s legal responsibility for a crime seem always to have been either too narrow or too vague.1 1.

A Heart-Rending Tragedy Few tales of such heart-rending tragedy have so gripped the nation: the manic depressive daughter, failed by her doctors, who was killed by her loving father as a desperate, final act of mercy. Kind and beautiful on the outside, but drowning in blackness within, Sarah Lawson's tortured life and endless suicide attempts challenged the notion that killing is always wrong.2

This is the way a journalist of the newspaper The Observer begins his article about both the tragic death of a 22-year-old girl, Sarah, who asked her father to help her to die, and the terrible choice of a father, James, who agreed to help his daughter die. Apparently, the choice of James was an act of love. Apparently, the death of Sarah was for her a liberation from suffering. Apparently, James is not responsible for what happened at least in so far as —as the judge declared at the end of the trial — “he was unable to consider that her daughter could recover from her illness.”3 Nevertheless, was Sarah’s death really inevitable? Was her suffering a real challenge to the fact that killing is always wrong? Could a person like James not be judged guilty on the grounds of diminished responsibility? Finally, could the notion of diminished responsibility help us when looking for a qualification of wickedness? Before looking for answers, let us begin by analysing facts and circumstances. Sarah had grown up with no signs of mental illness, and her mother describes her as “a funny, intelligent, generous almost to a fault girl .”4 But in her teenage years, her life completely changed. She started harming herself, burning her body with cigarettes, cutting herself, and occasionally taking overdoses. She dropped out of school, and became anorexic and alcoholic. At the age of 16, she was put on the antidepressant Prozac, and was later given electric-shock therapy, which appeared to help for a while. In October 1999, six months before her death, Sarah broke off contact with Homefield, the hospital where she was followed by a medical

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____________________________________________________________ staff. Doctors were led to believe that she had moved out of the area in order to stay with a relative. But rather than moving to a relative, Sarah and her parents had decided to do their own treatments. As her mother reports: “Sarah had given up on Homefield, they made her feel worse. We thought we could do it better on our own.”5 The night of Sarah’s death, Sarah and her father talked for two hours about her desire to die, and he said he would help her: James watched as Sarah swallowed 30 temazepam tablets washed down with orange juice. She drifted in and out of sleep, and swallowed another pot of pills. James put on her favourite Bette Midler song “Wind Beneath My Wings,” and they lay down together. But she didn't die. James got a plastic bag, and put it over her head. Because he couldn't bear to see her face, he also smothered her with a pillow. When she was dead, he woke his wife and called the police.6 After having denied the murder of his daughter, during the trial, Mr. Lawson, changed his plea, and he admitted manslaughter on the grounds of diminished responsibility.7 And some months after, on June 8, 2001, Mr Lawson walked free from court. The judge concluded that he had “acted out of love,” adding that both Mr. Lawson and his wife were “crushed” by their situation. James Lawson was then freed. On the basis of his diminished responsibility. On the basis of his desperation. On the basis of the impossibility for Sarah to live a life worth living.8 But, again, what does “diminished responsibility” mean? Can desperation be an excuse for killing? Was Sarah’s life not worth living? Is there any relationship between James’s act and wickedness? 2.

Diminished Responsibility and Wickedness It is not easy to value a situation like Sarah’s “murder” from a philosophical and theoretical point of view, not only because any time we are confronted with suffering we have to pay great attention in order not to bless people involved, but also because sometimes philosophical generalisations are not able to give a right account of the particularity of many acts and behaviours. At the same time, such a case is a useful one when trying to question some concepts like diminished responsibility and wickedness. In this sense, starting from Sarah’s “murder,” in this paper I would like to show both that the concept of diminished responsibility (a concept that is commonly used in the legal field in order to prove that a person accused of a crime is not legally responsible and then not liable for

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____________________________________________________________ punishment) is problematic, and that it could be dangerous to use such a concept when trying to define wickedness. On the one hand, in fact, it is not easy to define what diminished responsibility is from a descriptive point of view — such a concept is linked to a discipline in evolution (psychiatry) and whose diagnoses are never stable (the fact that the diagnostic instrument of DSM continually changes and modifies its own criteria of classifications of pathologies is emblematic). On the other hand, sometimes such a concept is used by lawyers and judges in order to “excuse” people who wickedly acted, even if from a moral point of view these people are responsible for what happened. Actually, the concept of diminished responsibility is at the same time too wide and too narrow: it is too wide in so far as it may be used in order to justify some perverse acts, that is to say the very wicked acts; it is too narrow in so far as, in a way, all criminal acts are either the consequence of a structural lack (in particular a lack of moral empathy), or the result of a weakness of the will (and thus the result of a “ human ” intrinsic limit), or the fruit of desperation, pity and “love,” as in James Lawson’s case. In this sense, the aim of this paper is to show that what we call wickedness is not just an act of desperation, nor the result of a weakness of the will, but a form of moral perversion, which is not morally excusable on the base of diminished responsibility in so far as it is not just a violation of moral norms, but is rather the attempt to impose a new system of norms able to instrumentalize and harm “autrui” (others). 3.

Deontologism, Perversity and Consequences Roughly speaking, we can say that two main strategies are commonly used in order to arrive at qualifying wickedness: the Kantian or deontologist strategy, and the consequentialistic one. According to Kant, wickedness is the consequence of a free act in which we make the incentives of self-love the condition of obedience to moral law: It may also be called perversity (perversitas) of the human heart, for it reverses the ethical order [as to priorities] among the incentives of a free will; and although conduct which is lawfully good (i.e., legal) may be found with it, yet the cast of mind is thereby corrupted at its root (so far as the moral disposition is concerned), and the man is hence designated as evil.9

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____________________________________________________________ Wickedness happens to be the result of the obedience to moral law only “by accident,” when it suits us, or when it is compatible with our pathological inclinations. On the other hand, goodness is for Kant the result of any free act realised in accordance with the categorical imperative (“Act so that the maxim of your will can always hold at the same time as the principle giving universal law”), and independently from its consequences. For Kant, evil is only a name for a certain lack within the ethical field of the subject. Evil, in other words, is entirely without metaphysical properties; it manifests itself at those moments when we stumble in our pursuit of the categorical imperative, and this failure is to be considered “pathological” insofar as it is predicated on a certain misrecognition within the subject, who turns attention from the Absolute Good to the merely pleasurable or the coveted. This implies two main consequences. On the one hand, in fact, when following Kant’s perspective, a person is always responsible for her acts, in that she can always decide which law she intends to follow. On the other hand, a person who follows the categorical imperative can never be considered a wicked person. Nevertheless, this means that when following Kant’s perspective the concept of diminished responsibility has no more sense, and any action may be justified if the personal maxim used in order to justify such an act is universalisable. Despite its categorical character, Kant’s imperative somehow leaves everything wide open. Anything could be transformed into a universal claim. As Alenka Zupancic puts the matter, “For how am I to decide if ‘the maxim of my action can hold as a principle providing a universal law,’ if I do not accept the presupposition that I am originally guided by some notion of the good?”10 In order to behave ethically, one must not simply behave in a way that is applicable as a universal maxim; additionally, one must be able to make the step of identifying with the will behind such a maxim. This universal will, so crucial to Kant, can in fact become, as actually happened from some Nazis, the will of the führer, so that the categorical imperative becomes translatable thus: “One must behave in such a way so that if the Führer knew, he would approve.” For Eichmann, for instance, the Kantian ethos of the holocaust required that one must not merely follow orders in an automatic capacity, but that one must identify with the will behind the orders themselves. Turning to the consequentialist position, we are confronted with important problems too. According to a consequentialist approach, an act is right or wrong according to the consequences of such an act. For consequentialists, before saying that an action is right, we have to consider its consequences, whereas, in a deontologist view, what makes some

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____________________________________________________________ actions morally wrong is not their actual outcome, but the fact that they are actions of a certain forbidden type or of a certain deontic or normative character.11 This means that, from a consequentialistic point of view, consequences can be ranked according to their value, and actions have to be valued and performed according to utility functions. Nevertheless, on the one hand, it is not easy to value the consequences of our acts. On the other hand, it seems difficult to value an act only according to its consequences, that is to say without any consideration of the intentions that lie behind the act. Even if it may happen that the consequences of an action are not worse than the consequences of another action, if the intentions of the one who performed such an action are “bad” (i.e., the actor wanted to harm someone), then it is difficult not to qualify the action in question as a “bad” one. But the very limits of both the Kantian and the consequentialist perspective are evident when analysing Lawson’s case. From a Kantian point of view, in fact, Lawson’s “murder” could be evaluated both as an example of goodness and as an act of wickedness. Given that the categorical imperative only tells us to act so that the maxim of our will can always hold as the principle grounding universal law, Lawson’s act could be analysed as a good one. In fact, Mr. Lawson’s maxim (“I want to put an end to Sarah’s suffering”) could hold as a principle providing a universal law (“Act so that your act always put an end to people’s suffering”). At the same time, we could always say that Lawson, when helping his daughter to die, acted according to his own present passion, so that his action would be the an example of wicked action. Suffice it to recall Kant's own famous example from his Critique of Practical Reason: Suppose that someone says his lust is irresistible when the desired object and opportunity are present. Ask him whether he would not control his passions if, in front of the house where he has this opportunity, a gallows were erected on which he would be hanged immediately after gratifying his lust. We do not have to guess very long what his answer may be.12 When applying a consequentialist logic to Lawson’s case, we are confronted the impossibility of evaluating his action. The only possibility, in fact, would be to try to compare Sarah’s death and Sarah’s life. Nevertheless, such a comparison happens to be rather problematic. Not only, in fact, do we not have any direct experience of death, but also we do not know how Sarah’s future life could have been. Sarah was young, beautiful, bright — and clinically depressed. When he handed himself over the police, James Lawson defended his

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____________________________________________________________ action by explaining that he and his wife were desperate to put an end to their daughter’s suffering and that assisted suicide seemed the only way out. However, let me tell you of another young, beautiful, bright — and clinically depressed 26 year-old-girl, Myriam.13 At the age of 19, Myriam became anorexic and started harming herself. She began psychoanalysis. Often she spent time in the hospital. Her life was miserable. But never did her father imagine that it was possible to help her die. In September 1997, she attempted to kill herself. But nobody helped her to put an end to her life. On the contrary, she was immediately brought to the hospital and saved. She is now 35. Sometimes her life is difficult, much as everybody’s life is sometimes difficult. Maybe her life is more difficult sometimes. She still has problems with food. But she can manage them. And she is happy not to have died. Sometimes, in fact, her life is even marvellous. But if this is true, as it is, how can we compare the state of things resulting from the choice to help Sarah die, with the state of things resulting from the choice to help her live? How can we value Sarah’s quality of future life? As Cristina Odone rightly writes about Sarah’s case, “Whether Sarah Lawson stood even the slimmest chance of regaining her well-being will never be known now. And James Lawson himself could never have been 100 per cent sure of his daughter’s future.”14 4.

Responsibility and Liability This is not the place for solving the problem of the right qualification of good and evil, nor the problem of the distinction between right and wrong actions. One’s ability to properly tackle such problems is surely the result of an entire life’s work. This is why, after having briefly shown both the Kantian and the consequentialist strategies, I now prefer to assume a general and simple principle upon which I believe it is possible to reach a sort of large convergence in order then to analyse the problem of diminished responsibility and the question of wickedness. At a bare minimum, I think we can argue that a wicked action is an action explicitly and voluntarily performed in order to cause harm to persons or otherwise adversely affect persons and their interests. As John Feinberg insists, in fact, to harm someone is to put someone in a worse condition than one would otherwise be in. In this sense, wickedness might be seen as the voluntary and free choice to harm someone. But what does a “voluntary and free choice” mean? Which is the link between voluntary and free choices and responsibility? Usually it is argued that the proposition “X is morally or legally responsible for having done Y” is equivalent to the proposition “X has freely done Y.” Moreover the proposition “X has freely done Y” is held to be equivalent to the proposition “X could have done otherwise than Y,” at

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____________________________________________________________ least in so far as the following, “X could have done otherwise than Y,” means that if X had wished (or willed, or chosen, or tried) to do otherwise than Y, he would have refrained from performing Y. At the same time, the meaning of “freely” is not easy to understand. In fact, sometimes, X’s doing Y may be caused by factors over which X has had no control. This is why, according to some philosophers, responsibility is supposed to hinge upon certain aspects of the character and circumstances of actions (Was he free? Did he know what he was doing? Did he intend to do that?), and, according to some others, responsibility is supposed to hinge upon the answerability of the agent (May he be called to answer for what happens?). In particular, in a legal context, to say that someone is responsible for an action means that he is liable to the normal legal consequences of it. Moreover, the judgements of legal responsibility are made retrospectively. As Feinberg puts the matter: “An event has taken place, a certain state of affairs has come into existence, and the court asks who is (not what was) responsible for that event or state of affairs.”15 This is why a defendant is said to be responsible for something when the state of affairs that results from his action (or omission) is a harmful one. In contrast to legal responsibility, moral responsibility is not only retrospectively attributed (someone refers to the concepts of blame and praise, so that a person is morally responsible if she can be blamed or praised for what she did), but it characterises the very human existence, at least in so far as everybody has always to respond not only to her past actions and choices, but also to her future actions and choices. In a certain way, human beings are always morally responsible for their acts, independently from certain aspects of their character and from circumstances of actions. Everybody – as Levinas points out - is responsible for the fate of the entire world.16 In fact, as Levinas has explicitly shown (starting from a quotation of Dostoyevsky, “we are all responsible for everything towards everybody”), everybody is “universally responsible,” for everybody has to respond for everything she/he does.17 This means that the concept of moral responsibility is larger than the juridical liability. But again, in which cases may an act be characterised as wicked? Is any action that harms someone a wicked one? Which is the link between wicked actions and diminished responsibility? Actually, the ascription of responsibility often is dubious as it happens, for instance, with those individuals most commonly known as “psychopaths.” It is in fact in such cases that it is possible to consider the plea of “diminished responsibility,” at least from a legal point of view. In English law, the plea of “diminished responsibility” was allowed in the 1957 Homicide Act. Section two of the act states that

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____________________________________________________________ where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. Two years after the Homicide Act, the 1959 Mental Health Act sought to create a legal framework within which the hospital treatment of mental disorders could approximate as closely as possible that of physical illness. Its two main objectives were 1) to allow admissions for psychiatric reasons to be, wherever possible, as informal as those for physical reasons and 2) to make counsellors responsible for the social care of people who did not need in-patient medical treatment. The Mental Health Act states, psychopathic disorder means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the patient, and requires or is susceptible to medical treatment. Today it is usually held that just as kleptomaniacs cannot control their stealing, alcoholics cannot control their drinking and psychopaths cannot control their anti-social acts. This is why such individuals are not considered either liable for punishment, or morally responsible. According to Glover, for instance, a reason for not holding psychopaths responsible can be stated in Bradley words: “Responsibility implies a moral agent. No one is accountable, who is not capable of knowing (not, who does not know) the moral quality of his acts.”18In this sense, he follows Aristotle’s position according to which blame is unreasonable when the agent acted in ignorance or under constraint: Aristotle, with reservations, said blame was unreasonable when the agent acted in ignorance or under “constraint.” I have taken a similar view, but have emphasised inner constraints that diminish one’s capacities just as surely as external ones diminish one’s opportunities. These inner constraints can be seen operating in any case of compulsive or addictive behaviour.

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____________________________________________________________ And some lines after he writes: “Where a wrong act was not the result of a bad intention, but was rather the result of lack of ability or opportunity to do anything else, we think it unfair to blame the agent.”19 Nevertheless, could we really use the concept of diminished responsibility when speaking of moral responsibility? Are psychopaths really excusable? Actually, I think that there is an important difference between moral responsibility and liability for punishment. As said, when speaking of moral responsibility we do not speak only of a retrospectively attributed responsibility. This is why I believe we can speak of three different cases: (a) Where A is harmed by B and B, knowing that through acting as she/he did A would be harmed, freely decides to act in that way, then B is not only responsible for A’s being in a harmed condition, but she/he is also liable to punishment. (b’) Where A is harmed by B and B does not know (because she/he is not able to) that by acting as she/he did A would be harmed, even if she/he freely decides to act in that way, she/he is responsible for A’s being in a harmed condition, but she/he is not liable to punishment. (b’’) Where A is harmed by B and B knows that through acting as she/he did A would be harmed, but she/he is not free to decide not to act in that way, she/he responsible for A’s being in a harmed condition, but she/he is not liable to punishment. (c) Where A is harmed by B, and B acts in order to harm B and according to a private system of norms. B completely lacks empathy, but this does not mean that he is not liable to punishment, or that he is not responsible. In case (a), we have a sort of coincidence between moral and criminal legal responsibility (i.e., criminal liability). In cases (b’) and (b’’) B may be legally excused in so far as her responsibility seems to be diminished either by her own ignorance, or by the impossibility of her acting out of compulsion. But from a moral point of view, it seems much more difficult to excuse her. It is possible to say that she is not responsible if by responsibility we intend a retrospectively attributed responsibility. At the same time, B is responsible in that everybody is answerable for what she makes or does not make. B is the actor of her acts, even if, in a certain way, she/he is not, intentionally speaking, the author of her acts. This is why, even if she has not liable for punishment and she cannot be blamed, because of her restricted responsibility, she is “responsible” in a larger sense. An action does not become innocuous merely because whoever performed it meant no harm. Lastly, in case (c), we are probably confronted with perverse people and wicked actions. In such cases, in fact, individuals seem both

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____________________________________________________________ liable for punishment, and morally blameable, in that their will to harm others is explicit, even if, from a psychoanalytical point of view, we could say that perversion is a sort of psychic structure. In this sense, I do not want to deny that people differ according to the different degrees in the understanding of the meaning of their actions, or according to different degrees in voluntary and free act. Nevertheless, in the case of perversion, even if people do not show any sense of guilty when acting “badly,” they show no evidence of defect in understanding actions and their consequences,. In a certain way, they completely lack empathy and remorse and for this reason they may not appear different from psychotic persons. At the same time, however, their case is a completely specific act, and it represents, according to me, the very example of human wickedness. 5.

Pervert Subjects and Law Pervert subjects may be defined as those subjects who are able to understand the meaning of their actions and their consequences, and who, at the same time, consciously decide to “use” and “objectify” other persons. Actually, perversion is completely different from neurosis and psychosis, and it is one among the three psychical and unconscious structures that allow human beings to become subjects of their discourse and agent of their acts.20 This is why, from a certain point of view, perversion is perfectly “normal” even if and when perverse people aim at imposing their own laws, norms, and imperatives, as if other people were nothing more than objects, something to be integrated in their “ normative ” system.21 Even if there is usually a tendency to confuse perversion with transgression, a perverse person is not “ hors-la-loi ” (outside the law), and in her challenge of the law there is not the will of abolishing law, but rather the attempt to impose a new and more tyrannical law, that is to say, her own law. Such a law may never be transgressed, and it never accepts” compromises, weakness, and forgiveness. In a way, such a superior law - a law written inside the perverse structure - is not essentially a human law. It is a sort of categorical imperative the pervert subject always defends: it is a sort of obligation, an obligation that imposes - as Lacan has shown - the jouissance. This is why, when transgressing ordinary laws, actually a pervert subject obeys her own law: what is forbidden becomes the object of her drive. The obedience to her law is seen as something inevitable and beyond question. It is then the very moral system, which is perverted, by the construction of a new moral object which excludes all the others.22 Pervert subjects try to find their own place inside the social community in order to transform social links and to install their own laws

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____________________________________________________________ and their own truth. This is why, before being the object of psychiatry, it is a form of criticism of society, a criticism that is characterised by disavowal.23 The law that Sade points out in his La philosophie dans le boudoir has a structure that, from a formal point of view, is similar to the Kantian categorical imperative, and it pretends to be the new categorical imperative.24 Sade’s maxim, in fact, is constructed in order to become the universal law able to rule society in following way: “Act so that you can always take pleasure from the other’s body.” That means precisely the following: “Act so that you use humanity in your own person or in the person of any other, always at the same time as a means, never as a end.” A pervert subject becomes then the real “bouche de la loi” (mouthpiece for the law), that is to say, the author, and not merely the actor, of her perverse acts. Lacan shows (in his seventh seminar) that Sade's ferocious “willto-jouissance” can be understood as a modality of the "universal will" (insofar as the sadist maintains the right to enjoy others absolutely while simultaneously recognising the others’ absolute right to enjoy him or her). For Lacan, Sade consequently deployed the inherent potential of the Kantian philosophical revolution, in the precise sense that he honestly externalized the Voice of Conscience. Lacan did not try to make the usual "reductionist" point that every ethical act, as pure and disinterested as it may appear, is always grounded in some "pathological" motivation (the agent's own long-term interest, the admiration of his peers, up to the "negative" satisfaction provided by the suffering and extortion often demanded by ethical acts). The focus of Lacan's interest on the contrary resides in the paradoxical reversal by means of which desire itself (i.e., acting upon one's desire, not compromising it) can no longer be grounded in any "pathological" interests or motivations and thus meets the criteria of the Kantian ethical act, so that "following one's desire" overlaps with "doing one's duty." What Sade accomplishes is thus a very precise operation of breaking up the link between two elements which, in Kant's eyes, are synonymous and overlapping: the assertion of an unconditional ethical injunction; the moral universality of this injunction. Sade keeps the structure of an unconditional injunction, positing as its content the utmost pathological singularity.25 Now, in a certain way, any pervert subject keeps the structure of an unconditional injunction. This is the case, for instance, of Patrick Bateman, the serial killer whose life was bravely described by Bret Easton Ellis in his novel American Psycho (1991).26 Patrick Bateman, in fact, is apparently a normal person who works on Wall Street. At the same time, however, he hates homosexuals and women, that is to say all those individuals who apparently use their body

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____________________________________________________________ in an immoral and impure way. This is why he kills homosexuals and women, and he never feels guilty. He wants to destroy human “desire” and its consequences and, by eating part of his victims, he reduces them to objects that demand to be consumed. In conclusion, pervert subjects completely understand the meaning of their acts and “responsively” decide to impose their own normative system on everybody else. On the one hand, they are compulsively pushed to act as “exterminator angels” in the world. On the other hand, they never feel guilty as neurotics may feel when acting badly. 6.

An Interim Conclusion Often, when analysing a complex problem, it is difficult to propose a conclusion, much as it is difficult to end a paper with some positive claim. This is why, after having shown some problems and difficulties linked to the concept of diminished responsibility, and after having argued in favour of the idea, such a concept cannot easily be used in a moral context. The only thing I can do now is to go back once again to Lawson’s case. In fact, in such a case, the concept of diminished responsibility – a concept that sometimes is used in order to excuse pervert subjects even if their actions seem to be the only true wicked actions happens to be useless. Actually, it is immediately clear that Lawson’s act is not the result of a bad intention: he wanted to do something (anything) in order to put an end to Sarah’s suffering. At the same time, he chooses to put an end to her daughter’s suffering by helping her to die, as if helping her to die was the only possible solution. Moreover, at least apparently, he was neither neurotic nor psychotic. He was not unconscious of the effect of his act. He was not, strictly speaking, in a condition of diminished responsibility. But this is not all. In fact, it seems even possible to say that he could have tried to do something else: he could have tried to find some more information about Sarah’s depressive state and, for instance, to convince her to start psychoanalysis rather than only use pharmacological therapy. The fact that he was not able to imagine such different strategies was probably linked to his ignorance of the situation, at least in so far as he would not even imagine the existence of difference means of fighting depression, anorexia, and so on. But, strictly speaking, ignorance is not an excuse en soi (in itself). Am I now trying to say that James Lawson should have been punished? From a certain point of view, if we literally apply the criteria of diminished responsibility, we arrive at a paradox: Lawson seems to be liable, whereas psychopaths do not seem to be liable. Fortunately,

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____________________________________________________________ sometimes justice happens to be less strict that criteria. This is why Lawson was freed. This is why, on the other hand, usually psychopaths are not freed. But such a solution does not seem to be a satisfactory one. In fact, from a moral point of view, Lawson is responsible of what happens, as well as psychopaths do. What changes is that often psychopaths, if they are pervert subjects, are morally responsible, as well as guilty. When acting in order to impose their own law and when treating other human beings as mere objects at their disposition, they act voluntarily without feeling any empathy or any remorse. Their acts happen to be the image of wickedness. And if Lawson can be forgotten — but not excused — it seems difficult not only to excuse, but also to forget a “true” perverse psychopath.

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Notes

Glover, 1970. 2 Brown, 2001. 3 Brown. 4 Brown. 5 Charter, Bale, and Freeman, 2001. 6 Brown. 7 Outside the court Miss Lawson's mother, Karen, as quoted in Brown, said: Getting the right treatment for Sarah proved impossible. Each day was like living on a knife-edge, coming home and never knowing what we would find - would she be dead or covered in blood and burns [...] Her life was an absolute misery. She couldn't cope with it. I knew she was going to kill herself . 8 As James Lawson, quoted in Brown, immediately told to detectives: “There was an inevitability about it. She had talked about it before and life seemed too cruel. Sarah said she wanted to die. She had got to the end of her tether.” 9 Kant, 1960, 25. 10 Zupancic, 2000, 92 11 Actually, as Williams has clearly pointed out, such a position contrasts many of our moral intuition. This is why he imagines the example of Jim and the Indians: Jim finds himself in the central square of a South American town, while twenty Indians are tied up against the wall and are to be killed, and he is offered the possibility of killing one of the Indians;

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____________________________________________________________ if he accepts, then the other Indians will be let off; if he refuses, the Indians will be killed all. See, for example, Williams, 1973, 99: To such a dilemma, it seems to me that utilitarianism replies [...] that Jim should kill the Indian. Not only does utilitarianism give these answers but [...] it regards them, it seems to me, as obviously the right answers. But many of us would certainly wonder whether [...] even one who came to think that perhaps that was the answer, might well wonder whether it was obviously the answer. 12 Kant, 1993, 30. 13 I am drawing this example from a case with which I am personally familiar. 14 Odone, 2001. 15 Feinberg, 1970, 25. 16 As it is written in Kiddushin 40b, If he performs one good deed, blessed is he for he moves the scale both for himself and for the entire world to the side of merit; if he commits one transgression, woe to him for he moves to the side of guilt himself and the whole world. See also Levinas, 1999, 227-34. 17 Levinas concentrates on the humanising commandment “Thou shall not kill ” as the prophetic word stemming from the face of the other and compelling a person to respect the other and be responsible for herself/himself, before any choice. Levinas emphasises this commandment as an urgent appeal to respect others, and considers all the other commandments as circling this pivotal word. 18 Glover, 1970, 198. 19 Glover, 198. 20 There is considerable controversy over the definition of perversion. Some say it is a matter of variant forms of human sexuality; others think of it as an aberrant form. It is only in psychoanalysis that the concept has a diagnostic and descriptive meaning: it has specific and recurring characteristics, and it is not only a variant of human sexuality, but also, and in particular, a specific psychical structure. 21 The pervert imagines herself to be the Other in order to ensure her jouissance. The pervert subject makes herself the instrument of the Other’s jouissance by negating the Other as subject. Although the pervert presents herself as completely engaged in seeking jouissance, one of her aims is to make the law present. Lacan uses the term père-version, to demonstrate the way in which the pervert appeals to the father to fulfil the paternal function. 22 Cf. André, 1993.

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Lacan elaborated in Seminar I and Seminar II his theory of the imaginary, in Seminar III and Seminar IV he developed his notion of symbolic order. In Seminar III specifically, he proposed a theory of psychoses, while Seminar IV elaborated the ideas of subject based on structure. Specific mechanism will define the outcome of each psychopathological structure: foreclosure in the case of psychosis, repression for neurosis, and disavowal for perversion. These mechanisms are, in fact, three different forms of the subject’s division, and are required for the construction of a subjective organization – the unconscious. 24 Cf. Lacan, 1966, 765-90. 25 The most obvious proof of the inherent character of this link of Kant with Sade, of course, is the (disavowed) Kantian notion of “diabolical Evil," i.e., of Evil accomplished for no "pathological" reasons, but out of principle, just for the sake of it." Kant evokes this notion of Evil elevated into a universal maxim (and thus turned into an ethical principle) only in order to disclaim it immediately, claiming that human beings are incapable of such utter corruption; however, shouldn't we counter this Kantian disclaimer by pointing out that de Sade's entire edifice relies precisely on such an elevation of Evil into an unconditional ("categorical") imperative? For a closer elaboration of this point, see Zizek, 1996, ch. 2. 26 Ellis, 1991.

References André, S. (1993), L’imposture perverse. Paris: Le Seuil. Brown, A. (2001), ‘Was Sarah Lawson’s death really inevitable?’, The observer. 20 May. Charter, D., J. Bale and A. Freeman. ‘Mother’s fury at care of suicidal daughter’, Times. 16 May. Ellis, B.E. (1991). American Psycho. New York: Vintage. Feinberg, J. (1970), Doing and deserving. Princeton: Princeton University Press. Glover, J. (1970), Responsibility. London: Routledge & Kegan Paul. Kant, I. (1993), Critique of practical reason. New York: Macmillan. ── (1960). Religion within the limits of reason. New York: Harper. Lacan, J. (1966), ‘Kant avec Sade’, in: Ecrits. Paris: Le Seuil. 765-90. Levinas, E. (1989), ‘Prayer without demand’, in: S. Hand (ed.) The Levinas reader. Oxford: Oxford University Press. 227-234.

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____________________________________________________________ Odone, C. (2001), ‘Black Dog Days’, The observer. 20 May. Williams, B. (1973), ‘A critique of utilitarianism’, in: J.J.C. Smart and B. Williams (eds.) Utilitarianism: for and against. Cambridge: Cambridge University Press. Zizek, S. (1996), The indivisible remainder. London: Verso. Zupancic, A. (2000), Ethics of the real. London: Verso.

The Humane Principle and the Biology of Blame (Evolutionary Origins of the Imperative to Inflict) John A. Humbach "The instinct for retribution is part of the nature of man" JUSTICE POTTER STEWART1 Every child learns that hurting people is wrong, but grown-ups think they know better. The lessons of adolescence are that some people “deserve” to be hurt, for reasons that are many—because of what they have done, because of what they are, for the good of society, to send a message, to defend honour, to alter behaviour, and for reasons more obscure. Even though most adults would probably say that hurting people is wrong, most would also insist on exceptions to the rule. People are, it seems, resiliently selective in their denunciations of hurtful acts and will doggedly insist, if pressed, that there sometimes is a moral right to cause serious human suffering. The most commonly voiced disagreement, indeed, is not whether hurting people is wrong but rather who “ought” to be hurt. Human suffering is not seen as truly an evil in itself but only an evil if not “deserved.” 1. The Humane Principle and Just Deserts Before going into my thesis, let me set out my agenda. There are two basic models that I see for dealing with evil acts: One is to counter the evil with evil in return (for example, “an eye for an eye”). The other model is to seek to minimize the harms that evil can produce, to neutralize evil without resorting to it. These two models are reflected in two competing moral principles: First, there is what might be called the Principle of Just Deserts—that people ought to get what they deserve. Then there is what one might called the Humane Principle, formulated more or less as follows: Any act to cause human suffering is wrong and must be avoided unless it is honestly meant as the most humane alternative that the situation presents, according equal concern to all who are affected.2 My agenda is to provide a compelling narrative in support of the Humane Principle, particularly as against the principle of Just Deserts. Basically, the question is this: Is purposely causing human beings to suffer ever an acceptable way to deal with social problems? Some believe it is. Others do not. Between these two positions there lies, in my view, the greatest of moral divides—the divide between those for whom human suffering can

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____________________________________________________________ be a good thing, and those for whom it cannot. Compared with this great moral divide, the many lesser disagreements on questions of right and wrong are pretty much a quibble. There are, of course, many other moral divides as well. Indeed, those who see the infliction of human suffering as a legitimate social tool tend to make many moral distinctions—far too many. They end up quarrelling endlessly, often violently, over who does (and does not) morally “deserve” to suffer. Some talk of justice; others talk of peace. Some even claim the right to inflict in the name of human rights. Some assert they must cause hurt because people are in the way, blocking paths to progress, racial purity, or to grace. When it comes to the central moral point, however, they all are of a kind: They all agree that hurting people is an acceptable way to deal with conflicting interests. And this is what divides them all from those on the other side, those who deny it is ever right to add to human pain. The idea that some people “deserve” to suffer has enormous social implications. One of the primary activities of modern government is to make sure transgressors get their “just deserts.” The appetite for retribution is undeniably strong. Hollywood profits enormously as it caters to this taste, larding its fare with odious reprobates so we can cheer at their demise—preferably as painful and graphic as the filmmaker’s art can make it. All this is good fun, no doubt, but real life is not so mellow. The taste for retribution inflicts much innocent suffering as well. For one thing, the punitive measures of government justice rarely hit only their putative targets. On the contrary, “no man is an island” as the saying goes,3 and there is often collateral damage—economic and emotional—to the prisoners’ children, spouses and other family and to others who may be similarly dependent. Perhaps you do not care much about wrongdoers’ families and dependents, but still you may care about the innocent victims—the men and women who are robbed, raped or even killed because, gripped by the credo of “just deserts,” their government has diverted criminal-justice attention and resources away from measures more effective to cut recidivism and crime—techniques such as “restorative justice,” community alternatives to incarceration, and efforts to head off criminogenic lifestyles in the first place. Retribution can deter, to be sure,4 but deterrents are subject to diminishing returns and, after a certain point, the marginal effects of retributive measures may still leave many undeterred. America’s prisons and jails hold 2 million people who evidently were not effectively deterred. This miserable population (highest per capita in the world), and the victims they tormented by their criminal acts, is eloquent testimony to the tapering marginal efficacy of our traditional modes of blame-and-deter justice.5

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____________________________________________________________ In sum, when a society obsesses on fixing blame and exacting punishment, there will likely be innocents who suffer but who might otherwise have been protected. Indeed, a reliance on blame-and-deter justice will inevitably leave many innocents to suffer unless, by some enormously lucky coincidence, giving transgressors what we feel they “deserve” also happens to be the most effective measure that can be deployed to head off harms in the first place. Actually there is evidence suggesting that infliction of suffering is, sometimes at least, not the most effective preventer of crime,6 but there is surprisingly little hard research. This is particularly surprising, perhaps, when one considers the importance that people attach to personal security and the threats posed by crime. People are, however, strongly motivated to see bad guys get their due, and they tend to become impatient when the topic turns to preventatives, especially if prevention means letting somebody off easy who “deserves” to pay a price. Those who seem to care too deeply about the root causes of crime, restorative justice or cost-effective alternatives to traditional punishment run the risk of being seen as foolishly “soft on crime,” lacking in moral resolve or, even, in latent sympathy with criminals. The predominant moral credo of “just deserts” disdains such concerns. The urge to blame and retribution are too compelling.7 2.

Upward Moral Trajectory? Like lot of people, I suppose, I have been drawn to the topic of this conference as a reaction to the problem of human suffering. Why does the suffering happen and, in particular, why does so much suffering happen at the hand of man? Can this human-generated suffering—“man’s inhumanity to man”—be reduced? If so, how? Despite famously appalling episodes in the last century, there is ground to believe that the human race has been, overall, on an essentially upward moral track during the past two or three thousand years, a generally upward trajectory of moral achievement in the ways we treat each other. This is obviously a somewhat debated point. Eruptions such as the Holocaust and Stalinist purges, not to mention many lesser 20th century horrors, do give considerable cause for doubt. Nevertheless, over the time span since, say, the composition of the Odyssey, one may observe that the circumstances in which it is generally considered legitimate to do destructive things to other people are shrinking, while the prevailing circle of humans deemed entitled to full human dignity and truly “inalienable” human rights grows ever larger. To take a concrete (and probably emblematic) example, consider the dramatic decline in the rate of death by homicide during the time span from hunter-gatherer times to the present, a decline that seems to be evidence that, over the eons, things are getting better.

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____________________________________________________________ In his book, War Before Civilization, Lawrence Keeley observes that “the proportion of war casualties in primitive societies almost always exceeds that suffered by even the most bellicose or war-torn modern states.”8 Based on the numbers he gives, this appears to be a considerable understatement. He points to archaeological evidence that the percentage of prehistoric people who died from “war” ranged from 5 to 40 percent, based on such indicators such as the numbers of skeletons found with arrowheads embedded in them.9 During the last century, by contrast, "only" 100 million or so died from warfare. While this toll is a potent remainder that we still have plenty of room for improvement, the number of 20th-century war dead would have been, based on Keeley's estimates from prehistoric times, twenty times greater “if the world’s population were still organized into bands, tribes and chiefdoms.”10 Homicide was pre-historically not merely a frequent cause of death, but it seems also to have been, compared with today, a fairly legitimate and even admirable thing to do. As Daly and Wilson point out in their study of homicide, “having killed [was] a decided social asset in many, if not most, pre-state societies” where, for example, “a young man might attain full adult status only by notching his first kill.”11 War is not, of course, the only context in which homicides occur, and in the United States for past 100 years (and in Europe for more than 50 years) war has been a proportionately minor one. Even a relatively high-homicide country like the United States (with non-warfare homicide rates several times those currently prevailing in Europe), there are fewer than 20,000 domestic homicides per year, compared with roughly 2.3 million deaths overall.12 This homicide percentage, less than 1%, contrasts sharply with Keeley's pre-historic 5-40% rate. In striking graphics, Keeley shows only twentieth-century Germany and Russia, and nineteenthcentury France, as coming close to matching even the least homicidal of the pre-historic societies studied.13 While most episodes of violence do not result in homicide, comparative rates of homicide nevertheless should provide a rough proxy for comparative levels of violence generally. Proportionately fewer homicides should mean, if nothing else, that there are proportionately fewer occasions of high-intensity (potentially lethal) violence. Therefore, projecting from these numbers and from what we know about dispute resolution techniques in, say, the middle ages and earlier times, it seems justified to range the socially predominant views on legitimacy of violence as progressing through roughly the following stages: 1. Violence considered generally legitimate as method for resolving disputes.14

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____________________________________________________________ 2. Violence considered generally wrong, justifiable only in response to violence15 3. Violence legitimate only if the most humane alternative. 4. Lethal violence or permanent maiming never legitimate as a solution/response to problems or conflicts. Lesser inflictions may be legitimate if most humane alternative. On such a scale, modern western societies would be predominantly at stage 2, with major areas of daily life either in the process of moving to stage 3 or essentially already there. There are, to be sure, many people who still live very much at the stage 1 level (members of street gangs and certain tribal cultures, among others).16 At the same time, however, over the longer term the proportion of circumstances is growing to which the moral level of stage 3 generally applies.17 What this means, in practical terms, is that the mode of dispute resolution that may have been very effective within a medieval army or tavern, or in a modern street gang or prison,18 would not work well at all in the corporate office or the country club.19 While modern “genteel” people remain willing to apply ruthless violence against persons they perceive as “other” (people of different cultures, foreign political enemies, or criminals), the situation is entirely different when it comes to their own families, worksites, schools, social assemblages, religious congregations and the like—within their own groups. There, the deployment of violence is simply not accepted as a legitimate response to disputes or affronts. That is to say, within their own groups the deployment of violence to resolve social problems typically just does not work. Morally, like technologically, a lot has happened in just the past couple of hundred years. Brutal acts, threats or stances that would have been acceptable or even praiseworthy 200 years ago, today have become matters of disgrace. It is essentially only in the past 200 years that slavery has been generally abolished, despotic regimes have ceased to be normal, and wiping out entire tribes and peoples has fallen out of favour as an accepted way to build a nation; more recently, racism has gone into disrepute, physical torture has become illegal, and punitive mutilations are now banned, almost everywhere; ideas and beliefs are no longer regarded as legitimate grounds for painful death. Even that old standby, domestic corporal discipline—husbands against wives, and (in some places) parents against children—seems to be on the way out. In more and more contexts, inflictions of suffering once generally accepted and normal have moved outside the acceptable range: in personal disagreements and feuds, in the workplace and in schools, against spouses, during police interrogations

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____________________________________________________________ and even, in certain respects, during war. It is not that people today have fewer conflicts than in the past. Indeed, as the earth becomes more crowded it is likely we have more. The difference is that, in more and more contexts, we have acquired self-restraint; we effectively deal with our conflicts in less injurious ways. Indeed, one may observe that nowadays it is mainly only toward individuals not of our own groups that the lower-stage standards of moral treatment continue to apply. We still feel comparatively free to use violent means against people we regard as essentially different from ourselves— persons of alien cultures and races, as well as such pseudospeciates as the addicts and “criminals” among us (i.e., the “us” who see ourselves as, by essence, law-abiding). There is, however, ground for hope even in the fact of this differentiation: As invidious discrimination among persons and socalled races becomes less and less accepted, there is a continual widening of the circle of humans deemed entitled to possess full human dignity and to have truly “inalienable” rights. Nothing says, of course, that this progression is a necessary one, or that it will necessarily continue into the future. I prefer, however, to take the more optimistic view that—with some conscious effort, at least— the moral trajectory of human civilization can continue. Along this trajectory, the next logical step is, it seems to me, to enlarge the circle of non-invidiousness, the circle of “fully human” and entitled to full human dignity and inalienable rights, to include literally everybody, even those we now think “ought” to suffer—to adopt a general principle that that intentionally adding to human suffering is wrong absolutely, without exception. This would entail embracing, in place of the old principle of “just deserts,” the Humane Principle that is provisionally formulated above. What the Humane Principle does first and foremost is to reject the legitimacy of selective condemnations of evil. One reason why this is important is that the selective condemnation of evil lends a kind moral cover for the doing of many harms. As George Orwell once wrote: "The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them."20 Orwell's comment need not, however have been limited to nationalists, for it applies to partisan discriminators of all sorts. A consciousness of the Humane Principle can, however, help to strip away this cover by its affirming, as a moral truth, that hurting people is wrong, always—not just hurting people like us, but hurting the “other” as well. It recognizes, too, that while coercive measures to prevent harmful behaviour will still be needed, gratuitous inflictions in the name of prevention, or suffering in the name of “justice,” would not. And the burden of persuasion would be on those who would inflict.

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The Barrier to Moral Progress What blocks us from taking the moral step? What blocks us from saying that, as to every human being and circumstance, adding to human suffering is morally wrong, period. The thing that stands in the way most importantly is the still pervasive belief, deeply felt, that under some circumstances, at least, hurting people is morally right. The exceptions may grow ever fewer, but they remain nonetheless. The selective condemnation of inhumane behaviour is still the norm. The condemnation of hurtful acts as such is not. Why is this? Why do we remain resiliently selective in our denunciations of acts to harm others, purporting to condemn evil while insistently retaining our little islands of hate from which we root mercilessly for the hand of moral reprisal to deal its crushing blows? Why do we cheer with such heartfelt fervour when, at the movies, the bad guys get their due, painfully trounced at the end of the film? Why do we persist in our pretense that the law’s punishments exist primarily as deterrents when we know, in our heart-of-hearts, the elemental satisfactions of seeing awful things happen to hateful people? Certainly one reason is, pretty clearly, that the Humane Principle runs counter to deep human emotions of blame and retribution. These emotions go far to justify opinions of moral right and wrong. It is my central thesis that, until we unmask the biological sources and springs of the retributive urge, we will continue to draw erroneous moral conclusions from it; we will continue to draw erroneous moral conclusions from the emotions that we feel. Knowing the biological causes of why we feel as we do will not, of course, likely stop the feeling—just as knowing the mechanisms of appetite will not make the overweight dieter yearn any less for sweets. But knowing can help overcome destructive emotions. We are already well aware that just because doing something feels good does not mean it is right. Hurting people and similarly destructive acts can feel good. However, as long as we regard our feelings as moral validations of conduct, as proof of moral right and wrong, the selective condemnation of evil will remain the norm. And evil will thrive. In short, I think it crucially important to provide a new narrative for the retributive urge, not in terms of moral speculations, but in terms of human biological nature.21 Why do people feel so powerfully the pull of retribution and the promise of “closure”? I believe that the evidence will soon show beyond a reasonable doubt, if it does not already, that there is a definite and very plausible physiological explanation for these ways that we respond. Our feelings of blame and the urge to retribution are simply biological adaptations. By biological adaptation I mean any structural or behavioural feature of an organism that increases its chances of leaving progeny

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____________________________________________________________ surviving in later generations. The human propensity to affix blame and appetite for retribution are adaptations that evolved because they advanced the self-preservation interests of pre-human and early human individuals living in social competition with others. They worked to do so because the delivery of pain in retaliation can be an effective way to deter harmful behaviour. Individuals that possessed this “automatic” emotional prompt to deliver deterrents enjoyed an added measure of security from harmful acts of others and, therefore, they had a selective advantage that helped make them our ancestors instead of an evolutionary dead end. As these more successful individuals became our ancestors, their basic emotional inventory and dispositions became part of our modern psychological legacy. Briefly, then, the biological narrative to account for our feelings of blame and urges to retribution would go something like this: Blame is a mode of social control. Feelings of blame, the sense that people morally “deserve” to suffer when they do harm, arise as part of an automatic response mechanism in the human social repertoire. The social function of blame is to prompt the delivery of deterrents in response to harmful acts. Individuals living in largely cooperative but also competitive small-group social settings need such a response because, without it, they would be at essentially the mercy of the oppressive or exploitative behaviour of others. But the emotions of blame and retribution reflect only the contingent needs of individuals in particular social contexts, not deeper moral truths. Moreover, as a mode of social control, the psychological phenomenon of blame is a biological adaptation whose need has now passed. It is no longer necessary to treat others inhumanely as a mode of social control. Therefore, the time has come to move beyond the idea that inhumane treatment is an appropriate response to social problems and that feelings of blame are a morally appropriate guide to behaviour. 4.

Evolutionary psychology Evolutionary psychology is a powerful tool for viewing the way that past environments influence the behaviour of people today.22 Its basic premise is that individuals have a better chance of leaving progeny, descendents, if they behave in some ways rather than others. The kinds of behaviour that contribute to reproductive success are sometimes referred

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____________________________________________________________ to as "adaptive." There are many and complex ways that various behaviours can be adaptive. To its basic insight that behaviour affects reproductive success, evolutionary psychology adds a second important premise. It assumes that certain behavioural tendencies or dispositions can be genetically "passed on" from one generation to the next. It assumes, in other words, that behaviour, including human behaviour, tends to be genetically biased in certain directions rather than others. Now it needs to be stressed that evolutionary psychology does not assume that human beings are subject to any kind of "genetic determinism." It does not assume that human behaviour is ever, in any significant respect, biologically "programmed." There is absolutely no evidence of that.23 However, evolutionary psychology does assume that human beings and our predecessor species possess(ed) genetic behavioural dispositions. What, (if not control by the genes) is a genetic behavioural disposition? A "genetic behavioural disposition" means simply: Any statistically significant biasing of behavioural probabilities within a population such that, in given kinds of situations, individuals are more likely than randomly to exhibit some forms of behaviour rather than others, and that this statistical biasing of behavioural probabilities is highly correlated with genetic similarity.24 Less formally, if individuals in a population tend to eat when hungry (low blood sugar), to drink when thirsty or, when frightened, to run, hide or puff themselves up, these are "behavioural dispositions." If there is a persistent population-wide or species-wide statistical bias towards certain behaviours in certain situations, then evolutionary psychology regards that as strong evidence that the disposition is at least partly genetic. This does not mean genetic programming, or anything of the kind, but a high correlation between genetic similarities and behavioural biasings does imply that there is some kind of genetic influence, at least an indirect one, on the behavioural choices that individuals make. However, one need not actually assume that any such genetic influence exists in order for the method of evolutionary psychology to work. All that is needed for the analysis to work is that there be (as there most obviously is) different behavioural biases among populations and species, and that these biases be highly correlated with genetic similarity.25 An evolutionary psychology narrative of the origins of the retributive urge might go like this: According to the evidence we have, our early human ancestors lived in small social bands of highly interdependent

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____________________________________________________________ individuals. It seems as well, though the evidence is only indirect, that life in these groups was a mix of not merely cooperative but also competitive behaviour. Cooperative behaviour (team efforts, direct and indirect reciprocity and “trust”26) would tend to enhance the survival prospects of group members. At the same time, an economic scarcity of resources or, merely, the possibility that individuals’ goals and interests may from time to time conflict would virtually assure some degree of competitive behaviour. Individuals that live in socially competitive settings cannot be behaviourally indifferent to the overreaching and aggressions of others. To be indifferent would be to put oneself at others’ mercy, a competitive disadvantage that might be fatal and would, at very least, reduce the chances of producing viable descendents. Therefore, individuals that live in socially competitive settings are practically required (in the absence of “police”) to have predispositions to detect and retaliate against others’ coercive or exploitative actions that would, if allowed, work directly contrary to the individual’s own survival interest.27 While our pre- and early human ancestors almost certainly needed, for survival, to live in social groups, to cooperate to a degree with others, and to stand up for their own interests, it hardly seems likely that could have reasoned this out for themselves. It is not even likely, indeed, that their intellect and reason would have sufficed to impel them to meet even such elemental needs as nutrition and water. There had to be innate motivators to action, appetites, to prompt them to do what they must. Though these appetites need not have been (and almost certainly were not) innate instructions as to how to meet survival needs, they served as unignorable goads to action and monitors of satisfaction, impelling the search for solutions and signalling success. Thus, we might suppose that, in order to cue adaptive behaviour, ancestral individuals were innately endowed with appetites for the society of others (an affinity for bonding and abhorrence of isolation) that were as real and as strong as those of people today.28 It seems hardly likely that our pre- and early human ancestors would ever have survived, much less produced descendents, if they did not have such appetites and, instead, had to rely for behavioural choices on their powers of reasoning and intellect. An “appetite” for the society of others is not, of course, the only non-rational (innate) disposition that would have proven useful and adaptive for our pre- end early human ancestors. It may also be plausibly postulated that, in order to fortify the groups on which all depended for survival, individuals, also need to have a general disposition to act cooperatively, such as by participation in teamwork, engaging in indirect reciprocity and forbearance towards other group members’ overreachings and vulnerabilities.29 While cooperative behavioural dispositions may lend

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____________________________________________________________ a selective advantage for group members as a whole, however, for any given individual it would often be possible to gain a certain edge by “cheating” here and there a little, getting a little extra, beyond what would otherwise be his or her share. (By “cheating” I mean broadly here any form of deceit or coercion used in an effort to obtain a non-reciprocated advantage from another.) Individuals alert for opportunities to “cheat” and get away with it would have a greater reproductive fitness and would, therefore, have tended to have above-average representation in the gene pool of the subsequent generations. Over time, as such individuals reaped the reproductive advantages, their offspring could come to outnumber the progeny of those that did not, and the behavioural disposition to detect and exploit apparent opportunities to “cheat” would spread ever more widely, until, eventually, it would become a species characteristic—as it apparently has. Cheating is, however, parasitic, and if individuals could pursue cheating without checks, the result might so upset the balance of resource distribution as even to threaten the integrity of the social group itself—the very group on which the cheaters depend for their own survival and reproduction. Without checks, in other words, cheating could jeopardize even the cheaters. Accordingly, to be reproductively successful in our ancestral past—to be our ancestors—individuals almost certainly had to live in groups where most members were disposed to be highly alert to detect and react against their fellows’ attempts to cheat.30 Those prehuman groups whose members reacted against cheating would be, on the whole, the groups whose members’ descendents would be best represented in future generations. It would be the members of these groups, in other words, that would have been our own ancestors. At any rate, “[a]cross cultures, humans are strongly predisposed to assess the behaviour of others as ‘just’ or ‘unjust’ and to respond with anger when the behaviour of others is perceived as unjust.”31 And it is from these individuals’ needs for successful cooperative-cum-competitive social life, and their evolved behavioural response to such needs, that our modern innate sense that offenders deserve to suffer most likely comes.32 In short, the modern appetite for retribution and making offenders “pay” for their transgressions is highly analogous to the more commonly recognized appetites—for food, for drink, for sleep, and the satisfactions of other sensually expressed needs. Just as the appetite for food, as it evolved, served the survival needs of our ancestors well, so also did their appetite for retaliation and making offenders pay. Today, the prompt to deliver deterrents against others’ overreaching, aggressive or threatening acts is experienced by us as emotion—the feelings of blame and urges to retribution that are familiar and, seemingly, inevitable parts of the human psychological make-up. Such emotions did not and do not “determine”

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____________________________________________________________ behaviour, but they can be very important components of the complex of causes that does determine our individual actions. In doing so they once served to give individuals survival and reproductive advantages, and sometimes still do—advantages that logic and reason can demonstrate today but, for our pre-human and early human ancestors, logic and reason could not engender. 5.

The Limited but Crucial Role of Biology It is easy to overrate the relevance of biology to questions of human behaviour. Biology does not “determine” specific behaviour and it certainly does not validate “bad” behaviour. The biological basis of humankind, of human nature, is nevertheless of the utmost importance to moral questions. Knowing our biological nature as we seek moral direction is like knowing about a nearby iron deposit when finding one’s way with a compass. If you ignore it, you will surely risk going astray. At our foundation, we exist as biological creatures, and many (if not all) specifics of human psychology have a definite physiological base. Our human intellect and reason may help interpret, respond to, and even govern our appetites, but human intellect is certainly not the source of human appetites. The feelings and emotions that emerge in our mental experience are no more the creations of human intellect than the biles that emerge in the gut. No human mind invented feelings of hunger, thirst, or sexual libido. And no human mind invented the urge to retribution. The capacity to generate these feelings and emotions is part of the innate psychological repertoire that evolved in ancestral humans and is a legacy from them. The very presence of our emotions, however, sometimes makes intellectual discussions of them difficult, especially when the very nature of the discussions tends to arouse the emotions themselves. As discussants contemplate examples of the kinds of situations to which such emotions may apply, that very contemplation may trigger an upwelling of the emotions themselves. When the presence of the emotions is combined with the suggestion that giving them credit is to be deprecated, the overall effect is magnified. The capacity to feel the retributive urge and propensity to blame evolved, no doubt, because of the survival advantages it provided at the time. Under modern conditions, however, what once was a survival advantage might become a detriment or, even, downright evil. In a time of modern abundance and ease of nutrition, our Paleolithic appetites and preferences for food (a affinity to sweets and plenty of fats) is not so well suited to the preservation of health and, on the contrary, contributes to diseases that are now a primary cause of death. So is similarly our

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____________________________________________________________ Paleolithic appetite for blaming and retribution. Having served its need, it may have become morally obsolete now that we have available abundant other ways, more effective ways, to address our need to minimize crime. Since all questions of right and wrong turn in part, at least, on the “facts,” a case might be made that, in earlier times and circumstances (say, Homeric Greece), the behaviour prompted by emotions of blame and retribution was not even morally wrong. However this may be, though, the social and environmental conditions that gave rise to blame and resultant notions of “justice” have long ceased to apply. Innate feelings of blame are no longer a socially adaptive or morally defensible guide to social behaviour. They are no longer socially adaptive because we live today in a world of largely urban societies with mostly anonymous members who govern themselves by laws rather than, as in ancestral times, by permanent inter-personal relationships. They are not morally defensible because we now have the analytical tools to show that the paradigm of “free” choice on which blame is based simply cannot be sustained.33 The inhumane treatment of others as a mode of social control is a biological adaptation whose time has passed. Yet, the moral miscues that this evolutionary legacy provides are persistent, resilient, and difficult to overcome. Evolutionary dispositions to behaviour are not, fortunately, ineluctable destiny. We can overcome obsolescent “biological” urges—be they to over-eat, to over-reproduce or to over-retaliate in response to conflicts and affronts. The hope is that, by understanding the biological basis of the moral miscues that make people want to hurt others, we can then become free to continue the historic moral advance of humankind.

1

Notes

Furman v. Georgia, 408 U.S. 308 (1972) (Stewart, J., concurring). 2 Note that to “cause” suffering refers here to actions whereby an agent adds to the total amount of overall suffering, i.e., to generate suffering, and not to inflictions (such as inoculations and dental procedures) that have the effect of reducing total suffering. When actions cause a person to suffer as an inseparable part of diminishing hurt to another (e.g., steering a runaway truck into a lone bystander instead of into a crowd, or wrenching a loaded gun from a homicidal madman, or from a baby), they can be viewed, in effect, as a “deflection” of suffering to the one from the other. While such actions are properly regarded as causal in directing the suffering to its eventual recipient, they are not regarded, for purposes of the Humane Principle, as a “cause” of human suffering itself. The Humane Principle explicitly recognizes a moral warrant for actions meant to reduce total

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____________________________________________________________ suffering even when, in the process of doing so, the action “deflects” the impact of some event-in-progress from one person to another. 3 Donne, 1987/1624, 126. 4 In simple contexts, indeed, it has been shown experimentally that the most successful (adaptive) strategy for dealing with others is “tit-for-tat,” rewarding obliging behaviour and seeking to punish hostile behaviour. See Axelrod, 1984. It “neither provokes suicidal escalating feuds nor advertises weakness which would invite exploitation” (Daly and Wilson, 1988, 235). What is adaptive or even indispensable in simple contexts may, however, be not at all necessary or, even, adaptive in other, more complex social contexts. 5 There are, no doubt, diverse psychological factors that undermine the efficacy of blame-and-deter justice, for example, the fact that some people lack normal perceptions of their own self-interest, labouring under unusually (and unrealistically) short time horizons, overweighing the near future, underrating the risks and personal costs of detection, etc. See Daly and Wilson, 1988, 164-68. In a similar vein, the law's moral or "heuristic" suasion is weakened when persons lack normal perceptions of others' interests (failure to "identify"), which logically leads to an impaired ability to predict (or comprehend) being blamed for various acts. Note that this lack of normal perceptions of others' interests is not necessarily pathological, in any sense, but may be a cultural artefact, as when bombardiers take great umbrage at those who regard the bombing of cities as matter for reproach. This is not, of course, to say that deterrent effects do not exist, but only to argue that those persons who enjoy normal perceptions of their own and others' interests may tend to overrate the deterrent effects of threats directed towards those who do not. On the efficacy of deterrence, one recent study has concluded, for example, that “[e]ach additional execution decreases homicides by 5 to 6, while three additional pardons generate one to 1.5 additional homicides” (Mocan and Giddings, 2001). However, executions and pardons are not the only alternatives, of course, and the deterrent effects of various intermediate interventions is the crucial issue to be considered—if minimization of human suffering is a considered to be a high priority goal. 6 See, e.g., The Justice Education Center for the Connecticut Judicial Branch and Department of Correction, 1996; Sherman et al., 1997; Wagner and Baird, 1993. See also Currie, 1998. 7 There is, to be sure, evidence that people are willing to pay substantial amounts to prevent crime: According to one recent study, “typical households” would be willing to pay between $100 and $150 per year for crime control programs that reduced specific crimes by 10% in their communities—amounting in aggregate to “a marginal willingness-to-pay

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____________________________________________________________ to reduce crime of about $31,000 per burglary, $75,000 per serious assault, $253,000 per armed robbery, $275,000 per rape and sexual assault, and $9.9 million per murder.” Cohen, Rust, et al. (2001). The authors of this study assert that these results, which are “between two and ten times higher than prior estimates of the cost of crime to victims,” more fully represent the true cost of crime to society. There is, on the other hand, “[e]xperimental research [showing] that moral indignation, understood as a willingness to suffer in order to punish unfair treatment by others, is widespread” (Ullmann-Margalit and Sunstein, 2002). 8 Keeley, 1996, 88. 9 Keeley, 1996, 88-94. See also id. at 36-37. 10 Keeley, 1996, 93 (emphasis in original). The 100 million figure for twentieth-century war deaths is regarded by Keeley as a high estimate. Id. 11 Daly and Wilson, 1988, 128 & 129. See also Alexander 1987, 79, making the point that "human evolution has been guided to some large extent by intergroup competition and aggression." That is to say, an innate disposition to resort to violence under circumstances of external threat would have practically been a survival necessity. See also Keeley, 1996, 174 (“Peaceful pre-state societies were very rare”). 12 Murphy, 2000. 13 Keeley, 1996, 89-90. 14 Daly and Wilson, 1988, 128, 129. 15 This stage effectively amounts to a ban on escalations to violence in disputes. But cf. modern nations’ efforts to inflict suffering on recreational drug users. 16 "Within certain reference groups violence is frequent, and the display of one's capacity for violence is admired or even obligatory,” note Daly and Wilson. Further, “other groups within the same large society condemn violence, and their members rarely resort to it" (Daly and Wilson, 1988, 286-87). While there is the temptation to offer a "cultural" explanation of why there is more violence in some groups than in others, Daly and Wilson express doubt. They point out that behavioural patterns may the source of cultural values rather than the result of them. Id. at 287. That is to say, the behavioural patterns of a "subculture" within the prevailing culture may result from exogenous sources, such as particular socioeconomic pressures on the subculture's members, with their local culture then being adapted to meet those exogenous pressures. 17 See discussion in following two paragraphs. 18 Striving for and maintaining status (or "honour") is also an important part of it. See Daly and Wilson, 1988, 126-31. In pre-state societies, such reputational attributions can be of tremendous survival value for both

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____________________________________________________________ individuals and groups-among-group, both by deterring potential aggressors and containing potentially disastrous aggression against dangerous adversaries. See also id. at 221-38. 19 But cf. "In most social milieus, a man's reputation depends in part upon the maintenance of a credible threat of violence" (Daly & Wilson, 1988, 128). 20 Orwell, 1945. 21 Although I use the term narrative, it should not be understood to mean anything less than a description of what is real, as best we can approach it. Anyone who believes that science does more than this, does more than provide satisfyingly plausible "narratives" based on carefully observed coherencies of data, is almost assuredly mistaken. See Kuhn, 1970; Jeans, 1943. 22 See Alexander 1987, 23. 23 See Alexander 1987, 21-30. 24 Notice that there is no assertion about genetic "causation" or control in this definition, only about genetic correlation. Inferences about causation can be left entirely to interpretation and are not foundational to the analysis. Notice, too, that the determinism that this definition implies is the very loose "quantum" determinism of statistical probabilities, and not the either/or determinism of classical mechanics. In fact, such statistical correlations between genetic profile and behaviour are all that is required to exist in order for an "objective" evolutionary psychology analysis to work. And their existence is, at least in principle, amenable to empirical confirmation. 25 It may possible for the main strategies of evolutionary psychology to work even without the assumption of direct genetic transmission of behavioural traits. Essentially, the argument would go, the genetic transmission of various structural traits indirectly predisposes the individuals so structured to some behaviours rather than others. 26 “Trust” here refers not to a conscious mental state of faith in another, but simply to the behaviour of omitting precautions (viz. of not being prompted to precautionary behaviours) and thus offering a theoretical vulnerability to another individual that the other is, from all appearances, in a physical (if not dispositional) position to take advantage. 27 See generally Daly and Wilson, 1988, 230-31. 28 An absence of the interhuman inputs and feedback of social interchange with others—that is, unsought isolation and loneliness—tends to be experienced as unpleasant, inducing stress, having impacts on hormone/neurotransmitter balances and even affecting neuronal development. See, e.g., Sapolsky, 1996. For a relatively early judicial recognition, in the context of solitary imprisonment, see In re Medley, 134 U.S. 160, 167-68 (1890).

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____________________________________________________________ 29

People are unlike, say, tigers, which have no evident innate disposition to live cooperatively with other tigers or any observed tendency to do so. 30 There is evidence of such retaliative urges, to the point, practically, of "law and order" and even a chieftain-like form of "government" among modern subhuman species such as troops of chimpanzees. And, as Holmes noted, even a dog knows the difference between being tripped over and being kicked. 31 McGuire, 1994. 32 See generally Fehr and Gächter 2002. Also see Cosmides and Tooby, 1992, 193. Note: the same behavioural evolution may have occurred purely as a cultural matter, without any genetic support, in the form of innate dispositions or urgings whatever. As such cultural patterns continue to be handed down by the processes of learning from generation to generation, the results would be essentially the same as would occur on the "innate" hypothesis. Thus, nothing in this argument really depends on the correctness of the innate hypothesis. 33 That is, as a matter of evolutionary theory, free choice (or “free will”) could not have evolved and, therefore, ascribing blame for “bad” choice is morally inapt. This is, however, a subject for another paper.

References Alexander, R.D., (1987), The biology of moral systems. New York: Aldine De Gryter. Axelrod, R. (1984), The evolution of cooperation. New York: Basic Books. Cohen, Rust et al. (2001), ‘Willingness-to-pay for crime control programs’, available at http://papers.ssrn.com/paper.taf?abstract_id= 293153. Cosmides, L. and J. Tooby. (1992), ‘Cognitive adaptations for social exchange’, in: J.H. Barkow, L. Cosmides, and J. Tooby (eds.) The adapted mind: evolutionary psychology and the generation of culture. New York: Oxford University Press, 163-228. Currie, E. (1998), Crime and punishment in America. New York: Henry Holt & Co. Daly, M. and M. Wilson. (1988), Homicide. New York: Aldine De Gryter. Donne, J. (1987/1624), ‘17. meditation’, in N. Rhodes (ed.) John Donne: selected prose. Harmondsworth: Penguin. 125-126. Fehr, E. and S. Gächter. (2002), ‘Altruistic punishment in humans’, Nature, 415: 137-40. Homer. (1996), The Odyssey. R. Fagles (trans.) New York: Viking.

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____________________________________________________________ Jeans, Sir James (1943), Physics and philosophy. New York: Dover. The Justice Education Center for the Connecticut Judicial Branch and Department of Correction. (1996), ‘Longitudinal study: alternatives to incarceration sentencing evaluation, year 3,’ available at http://www.theconnectioninc.org/AlternativeSanctions.htm. Keeley, L.H. (1996), War before civilization. Oxford: Oxford University Press. Kuhn, T. (1970), The structure of scientific revolutions, 2d ed. Chicago: University of Chicago Press. McGuire, M.T. (1994), ‘Moralistic aggression, processing mechanisms, and the brain: the biological foundations of the sense of justice’, in: The sense of justice. Newbury Park, CA: Sage. Mocan, N.H. and R.K. Giddings. (2001), ‘Pardons, executions and homicide’, available at http://papers.ssrn.com/paper.taf?abstract_id= 295576 (2001). Murphy, S.L., (2000), ‘deaths: final data for 1998’, National vital statistics reports from centers for disease control and prevention, vol. 48 no. 11, available at http://www.cdc.gov/nchs/data/nvs48_11.pdf. Orwell, G. (1945), Notes on nationalism, available at http://www.resort.com/~prime8/Orwell/. Sapolsky, R.M. (1996), ‘Stress, glucocorticoids, and damage to the nervous system: The current state of confusion’, Stress, 1:1–19. Sherman et al. (1997), Preventing crime: what works, what doesn't, what's promising, a report to the U.S. Congress, for the U.S. Dept. of Justice, Office of Justice Programs. University of Maryland, available at http://www.ncjrs.org/works/. Ullmann-Margalit, E. and C. Sunstein. (2002), ‘Inequality and indignation’, available at SSRN Electronic Paper Collection: http://papers.ssrn.com/ paper.taf?abstract_id=301110. Wagner and Baird. (1993), Evaluation of the florida community control program. Washington, D.C.: National Inst. of Justice, cited at http://www.mhv.net/~cureny/alternat.htm.

Rescuing Kant=s Retributivism Ramzi Nasser 1.

Introduction Among criminal law theorists, Immanuel Kant is best known for his belief that the purpose of punishment is to serve retributive justice.1 That is, Kant is thought to believe that the reason criminals should be punished is because they deserve to suffer by virtue of having committed an immoral act. Criminal law textbooks only mention Kant as an advocate of the proposition that the sole purpose of punishment is to give criminals their just deserts.2 Further, the Encyclopedia of Philosophy describes Kant as a “thoroughgoing retributivist,”3 suggesting that Kant believes a sufficient reason for the state to punish criminals is so that the state can obtain retributive justice. The purpose of my paper is to show why retributivism sets forth a fair system of punishment, that is not, in theory at least, cruel, vengeful, or in violation of individual rights. First, I set forth Kant=s theory of punishment and attempt to show that, despite recent scholarship to the contrary,4 Kant was a retributivist who believed the sole goal of punishment was to give offenders their just deserts for immoral acts. Next, I explain, using some examples I have come across in my employment as a federal defender, as well as using some examples Kant gives, why I believe retributivism is a just way of looking at the criminal law. Mostly, I will discuss how retributivism places limits on the amount and kind of punishment an individual can be subject toClimits that do not exist in other theories of punishment, such as rehabilitation or deterrence. 2.

Kant=s Retributive Theory of Punishment As a prima facia matter, if I force a person into a prison cell or kill a person, I have violated that person=s freedom. In the Doctrine of Right, Kant explains why the state may treat a citizen in such a manner if the citizen is being punished for a wrong. We punish citizens because, in certain instances, it is the duty of the state to see that an offender is given her just desert for an immoral act. In his Lectures on Ethics at Albertina University during the 1793-94 school year, Kant explains, We think it quite contrary to the order of things that a morally bad action should by its nature be coupled with impunityYthe judicial office, by virtue of its lawgiving power, is called upon by reason to repay, to visit a proportionate evil upon the transgression of moral laws.5

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____________________________________________________________ Similarly, in the Doctrine of Right, Kant states that punishment can be inflicted on an individual “only because he has committed a crime.”6 Kant goes on to state how a murderer is punished so that the state is assured that it has punished the murderer “as his deeds deserve.”7 Thus, in the interest of achieving retributive justice, the state must be sure that each offender is sentenced “in proportion to his inner wickedness.”8 Kant is clear that retributive justice, or the attainment of just deserts, is the sole goal and justification of punishment as opposed to being only one of many goals pursued when the state chooses to punish its citizens. All other positive benefits of punishment can only be secondary side effects. Kant warns in the Doctrine of Right that individuals can only be punished because they have committed a crime, and punishment can never be inflicted “merely as a means to promote some other good for the criminal himself or for civil society.”9 Further, a criminal must be found “punishable, before any thought could be given to drawing from his punishment something of use for the criminal himself or for civil society.”10 It seems, for example, that one could not decide to make an act punishable in hopes of deterring wrongdoing. In such a case, the purpose of the threatened and executed punishment would be the “good of society” as opposed to retribution for a crime. And if we punish citizens with some other end in mind, we will be treating the offender “merely as a means to promote some other good.”11 This would be impermissible because the offender=s “innate personality protects him from this, even though he can be condemned to lose his civil personality.”12 In sum, the state may punish only with the purpose of serving retributive justice, because such a system does not inflict suffering on a human being to serve some other goal. There is value in the mere fact of inflicting suffering proportionate to a moral transgression. If the state punishes for some other reason, such as deterrence, then the offender suffers as a means to achieve some other end, as opposed to the suffering serving as the purpose of the state action Kant=s comments about punishment do not simply state permissible reasons to punish if a state actor decides to inflict punishment. Kant argues that the state has an absolute duty to punish individuals in order to assure that the individuals are given their just deserts. Kant states that “the law of punishment is a categorical imperative, and woe to him who crawls through the windings of eudaemonism [ethics] in order to discover something that releases the criminal from punishment or even reduces its amount.”13 Kant emphasizes the stringency of this duty by considering a case where an island society is about to disband and there is no apparent benefit, in terms of rehabilitation or public safety, to executing the murderers in prison. Nonetheless, the state is required to dole out retributive desert by executing the convicts so “blood guilt does not cling to the people for not having insisted upon this punishment; for otherwise

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____________________________________________________________ the people can be regarded as collaborators in this public violation of justice.”14 Kant holds that it is the duty of the state to punish individuals in order to assure that a certain amount of suffering is coupled with the moral wrongs of the actors. This is in part because it would be “against the order of things” for the state to do nothing when individuals commit wrongs, and the other alternative actions the state could undertake in response to moral wrongs--namely, attempting to rehabilitate offenders, or punish offenders to deter future wrongs—would impermissibly use individuals as a means to achieve other ends. A lot of criticism has been launched against retributivism, suggesting that his justification of punishment is cruel and vengeful. It has been said to have “roots in vengeance, bloodlust, revenge, retaliation, and an eye for an eye.”15 Critics have found retribituvism akin to “cruelty” because it is a “triumph, or glorying in the hurt of another.”16 On the contrary, Kant sees retributivism as respectful of the humanity of another, insuring that one is not punished any more than he deserves, and not being made to suffer simply in the interest of deterring other crimes or meeting other goals of society. 3.

A Review of Kant=s Writings Confirmed He Believed Retributivism Should be the Sole Goal of Punishment To be sure, many scholars dispute the fact that Kant argues that the sole purpose of punishment is to seek retributive justice. Recent scholarship regarding Kant=s theory of punishment has resisted the kind of claims I have made here. Many scholars have argued that Kant did not wish to justify punishment on retributivist grounds, either because he offers some other justification of punishment, or because the doling out of moral desert is not possible given Kant=s statement about the impossibility of assessing the morality of actions. In the first sub-section below, I will attempt to defend Kant=s retributivism against the popular claim that Kant felt punishment is justified because the practice deters future crimes.17 Next, I will refute the common objection to Kant=s retributivism--that doling out just deserts is inconsistent with Kant=s statement that we can never know the moral badness of individuals. A. Why Kant Does Not Believe the Purpose of Punishment is Deterrence of Future Crimes. Most of Kant=s published statements about punishment (as opposed to third party notes from his lectures) can be found in the Doctrine of Right, where Kant sometimes notes that individuals have to be punished simply because justice requires the guilty be punished and sometimes cautions that individuals cannot be punished if such punishment would not deter future crime. Philosophers have naturally

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____________________________________________________________ looked to other Kant texts, to be read with the Doctrine of Right, in order to get a better understanding of Kant=s view on punishment. Abandonment of Kant=s retributivism is often based on statements that Kant made in his Lectures on Ethics suggesting that the purpose of punishment is deterrence. However, examination of the timing in which Kant gave his various lectures shows that he no longer considered deterrence to be the sole purpose of punishment at the time he wrote the Doctrine of Right. Mark Tunick has an article on Kant’s Lectures on Ethics.18 So, too, does Jeffrie Murphy.19 Both cite the following passage from Kant=s Lectures on Ethics: Punishment in general is physical evil accruing from moral evil. It is always deterrent or else retributive. Punishments are deterrent if their sole purpose is to prevent an evil from arising; they are retributive when they are imposed because an evil has been doneY. Those imposed by government are always deterrent. They are meant to deter the sinner himself or to deter others by making an example of himY. All punishments imposed by sovereigns are pragmatic; they are designed either to correct or to make an exampleY. Ruling authorities do not punish because a crime has been committed, but in order that crimes should not be committed.20 Armed with this passage, Tunick begins to minimize or explain away Kant=s comments about retributivism. He eventually concludes, On Kant=s view we have the practice of legal punishment to deter certain objectionable actions and preserve a well-ordered society that respects individual rights. We should not [confusedly conclude that Kant=s claim is that] the reason we have the practice [of punishment] is because we must mete out just deserts.21 Murphy considers the Kant quote with strong retributivist statements by Kant and suggests that Kant=s separate calls for deterrence and retribution as the sole purposes of punishment are irreconcilable.22 Importantly, Kant's statement about deterrence as the purpose of punishment was made in 1781, long before he wrote the Metaphysics of Morals.23 The Metaphysics of Morals, where Kant has his only systematic published account of punishment, was not released until over fifteen years later in 1797. Kant=s Lectures on Ethics, given closer to the release of the

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____________________________________________________________ Doctrine of Right, reveals him to feel that the sole purpose of punishment is retribution. A manuscript of Kant=s lectures in 1784 makes similar remarks about punishment as were made in 1781, but give some suggestion that deterrence is not the purpose of punishment. Kant stated “authority punishes, not because a crime has been committed, but so that it shall not be committed.”24 However, the next lines state But every crime, in addition to this punishment, has a property of deserving to be punished, because it has taken place. Such punishments, which therefore necessarily follow upon the actions, are moral in character, and are retributive punishments.25 It seems that Kant meant that authority currently punishes based on deterrence, but as a moral matter, punishment should be based on retribution. The first part refers to what authorities empirically do and the next two sentences begin with “but” and refer to that which, morally speaking, necessarily follows. No lecture notes have been found for Kant=s lectures for anytime after the 1784-85 school year, except for the Vigilantius lectures, which were from the 1793-94 semester,26 just a few years short of when the Doctrine of Right came out. The Vigilantius lectures suggest a position consistent with the interpretation of Kant=s view of punishment that I offered above. As cited above, Kant offers that the state inflicts punishment because it is seeking the retributive goal of doling out just deserts. Kant states: We think it quite contrary to the order of things, that a morally bad action should by its nature be coupled with impunity, and punishment depend merely on arbitrary chance; reason at all times connects the rectitude of moral conduct with worthiness for happiness, and considers the transgressor as unworthy of the latter; the judicial office, by virtue of its law-giving power, is called upon by reason to repay, to visit a proportionate evil upon the transgressor of moral laws.27 Also, Kant warns that retribution is the sole purpose of punishment and that any other justification such as deterrence or rehabilitation, impermissibly uses an individual as a means instead of treating the person as an ends in herself. He states:

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____________________________________________________________ In punishments, a physical evil is coupled to moral badnessYand physical evil is a direct consequence of moral badnessYfor if we take it that punishment serves only to frighten others away from crime, or to deter the criminal himself, from other moral badness, then we are looking at punishment merely as a way of achieving other intentions or as a means...28 Similarly, in the Doctrine of Right, Kant warns that jus taliones (right of retribution) is by its form always the principle for the right to punish since it alone is the principle for determining this idea a priori (not derived from experience as to which measures would be most effective at eradicating crime).29 The interpretation given in this paper is complicated significantly by Kant=s comments in the Doctrine of Right and elsewhere where Kant explains the limits of state coercion. In the introduction to the Doctrine of Right, Kant states that “coercion is a hindrance to freedom.”30 So when the state threatens someone with punishment or actually invokes punishment against an individual, the state has prima facia violated the individual=s freedom. But Kant explains that an act of coercion may not violate freedom if the act of coercion is “a hindering of a hindrance of freedom.”31 If an act is a hindrance of a hindrance of freedom, it is, by “the law of contradiction” not a violation of freedom.32 What makes a prohibition a hindrance to a violation of freedom, according to Kant, is that the prohibition acts to deter the violation of freedom. That is, the prohibition is capable of exerting external pressure on citizens not to violate the freedom of others. In his Lectures on Ethics in 1785, Kant explains that coercion is allowed only in cases that impede the violation of freedom. He states, “if I act contrary to the general freedom, that is a hindrance to the general freedom, and if the latter is specifically impeded, the act is unjust, and the sanction therefore just.”33 In the Doctrine of Right, Kant recounts an example of what he sees as an obviously immoral act, but concludes the offender should not be punished because prohibiting the offender=s action would not deter the violation of freedom. The immoral actor was in a shipwreck and stole a plank away from another to save his own life, knowing full well that the person whose plank was being stolen would most certainly drown. Kant feels that a penal law prohibiting such an action would not deter future occurrences of the action because “a threat of an ill that is still uncertain (death by judicial verdict) cannot outweigh the fear of a death that is certain (drowning).”34

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____________________________________________________________ So even though Kant feels the offender has a moral duty not to steal the plank,35 the state appears to have a duty not to prohibit the act because such a prohibition would be an impermissible hindrance of freedom. It would not be a hindrance to a hindering of freedom because such a law would not deter anyone from stealing the plank of another shipwreck victim. Scholars have used this example as proof that Kant felt that deterrence is the purpose of punishment, for if deterrence were not the purpose of punishment, then why would the state fail to punish a wrongdoer simply because the wrongful act was not deterable?36 The excerpt is unquestionably difficult to reconcile with the view in this paper. However, just because the state is only authorized to create a prohibition when it is hindering a hindrance to freedom--that is, when it is deterring a wrongful act--that does not mean the state may not legislate for the purposes of pursuing retributive punishment. It seems both the requirement not to hinder freedom and the requirement to seek retributive justice must be derivable from a duty to respect humanity as an end in itself. Nearly every time an immoral act is prohibited and punishable, the prohibition of that act will deter potential offenders. The shipwreck case is a rare example of how a person will not be deterred by any prohibition. As such, cases of undeterable crimes seem to bring forth situations where the duty to seek retributive punishment yields to the duty not to violate freedom. It is true that the idea that the state should seek retribution and the idea that the state can only outlaw deterable crimes are at odds. The only place I have found where Kant seems to attempt to resolve this difference is in his 1793-94 Lectures on Ethics, where he states that retribution is “immediately necessary according to the principles of justice,”37 while deterrence “merely determines the amount of coercion the transgressor of the law may encounter.”38 The implication seems to be that retribution is the purpose of punishment while the requirement that the state seek deterrence limits the state from seeking retribution to some degree. B. The Elusive Value of Moral Worth Scholars have also rejected the argument that Kant is a retributivist because he goes to so much trouble to note the impossibility of knowing the moral worth of people that it seems impossible that he would think the state should set an end of doling out punishment equivalent to inner wickedness.39 For example, Kant has remarked, woe to the legislator who wishes to establish through force a polity directed to ethical ends!YFor in such a commonwealth all the laws are expressly designed to

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____________________________________________________________ promote the morality of actions (which is something inner, and hence cannot be subject to public human laws) whereas, in contrast, these public lawsCand this would go to constitute a juridical commonwealthCare directed only toward the legality of action, which meets the eye, and not toward inner moralityY40 But I think it would be a mistake to assume that just because we can never know the inner morality of all actions that Kant feels we can never seek retribution. There are some cases where determining the morality of an action is impossible. For example, Kant realizes that I may seem externally respectful even if I would “like in my heart” to infringe on the freedom of others.41 And if a legislator tried to promote morality in general, she certainly may deserve woe. But there are certain cases in which we can observe from the external actions of someone that he has violated a moral duty. That is because the extent of the moral duty was not to partake in that external action. And these are just the sorts of actions Kant is willing to punish. In his 1783-84 Lectures on Ethics, Kant noted that moral responsibility can be ascribed to external violations of the juridical law because juridical omissions “can be imputed, for they are omissions of that to which I can be necessitated by law.”42 The whole basis of coercion is that there are certain moral duties that involve duties not to commit external actions. By definition, it is observable when such moral duty has been violated and one could not object that a punisher would not know the true immorality of such an action. A better objection may be that a punisher could never know the true moral worth of the actor, even if he knows how morally bad an act was. But Kant=s system of desert seems to dole out appropriate punishment based on the immorality of the act, not the immorality of the individual. No matter who the offender is, the punishment, according to Kant, should be proportionate to the crime. 4.

Kant=s Exceptions to the Duty to Seek Retributive Punishment Even though Kant believes it is the state=s duty to seek retributive punishment by giving an offender her just deserts, Kant also believes that there are conflicting duties that may limit state actors in their pursuit of doling out just deserts. These exceptions show the just nature of Kant's retributivism. A. Duties Not to Impose Certain Types of Punishment Kant does not allow the state to give each offender her just deserts at any cost. Kant notes that the state has the duty to respect the

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____________________________________________________________ humanity of the person being punished even if the person may be thought to deserve harsh treatment by virtue of committing a crime. In speaking of a properly imposed death sentence in the Doctrine of Right, Kant comments that there is no similarity between life, however wretched it may be, and death, hence no likeness between the crime and the retribution unless death is judicially carried out upon the wrongdoer, although it must be freed from any mistreatment that could make the humanity in the person suffering it into something abominable.43 Kant states that death is the worst possible punishment. It has “no similarity” to any punishment that includes the offender=s continued existence. Nonetheless, the state is prohibited from carrying out a punishment in a way that would make a person=s “humanity abominable.” So, perhaps Kant feels that if an offender was tortured or humiliated (by, for example, being made to grovel in the dirt) the state would have impermissibly violated its duty to respect the offender=s humanity. It is not that a person could not be thought to deserve this type of mistreatment. Indeed, if death is the worst type of punishment a person deserves, it seems possible she deserves the less severe punishment of torture or humiliation. But the state has duties to respect humanity that trump its duty to seek retributive punishment. Kant affirms the state=s duty to respect humanity when doling out punishment elsewhere. In his Lectures on Ethics from the 1784-85 school year, he explains, Since men are objects of well-liking love, in that we should love the humanity in them, even judges, in punishing crime, should not dishonour humanity; they must, indeed, penalize the evil-doer, but not violate his humanity by demeaning punishments; for if another dishonours a man=s humanity, the man himself sets no value on it.44 Similarly, Kant commented in lectures a decade later, The man who steals from me, I have the right to punish only by depriving him of his freedom, because more would plunge him into a state of penury [poverty]. No punishment should be coupled with cruelty, i.e., it must not be so framed that humanity itself is thereby brought

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____________________________________________________________ into contempt, the worth of the person abolished and turned into a thing, e.g., the street-sweeping and boathauling of Joseph II. All cruel tortures are also needless, for since death is the most dreadful, it may be assumed that anyone undaunted by capital punishment is also superior to other torments as well.45 Hence, punishments that demean a person, put a person in a state of poverty, make a person engage in forced labour, or subject one to “torture” are all examples of punishment the state has a duty not to commit because they impermissibly fail to respect the humanity of the offender. Thus, there seems to be a conflict between the duty to give an offender his just due and a duty not to run afoul of the offender=s humanity. In cases of torture or humiliation, the negative duty not to run afoul of the perpetrator=s humanity wins out. In the interest of moral desert, Kant feels that the severity of punishment should be proportionate to the severity of the crime.46 This is because “he who kills, abuses, or robs from another, kills, abuses, or robs himself.”47 That is, he deserves to have done to himself what he has done to others. Nonetheless, even if the thief deserves to be robbed from, the state may not take away all his possessions and leave him to live on the street, because submerging him in poverty would violate his humanity. Imagine one was to steal all the possessions of another forcing his victim into poverty. Imagine further, the criminal was similarly robbed by another criminal and similarly forced into poverty. We can say after hearing the tale: “Justice has been done and the criminal got what he deserved.” Nonetheless, it is unjust for the state to act in the capacity of the second robber, forcing one of its citizens into poverty. In the Doctrine of Right, Kant distinguishes the type of punishment that states give from “natural punishment (poena forensis), in which vice punishes itself and which the legislator does not take account.”48 Kant gives what I believe to be an example of such an occurrence in Critique of Practical Reason when he recounts a tale in which “someone who delights in annoying and vexing peace-loving folk receives at last a right good beating.” Kant qualifies that such a beating is Certainly an ill, but everyone approves of it and considers it as good in itself even if nothing further results from it; nay, even he who gets the beating must acknowledge, in his reason, that justice has been done to him, because he sees the proportion between welfare and well-doing which inevitably holds before him, here put into practice.49

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____________________________________________________________ It seems unlikely Kant would sanction the state to administer such a beating. After all, Kant did not allow “cruel tortures” in pursuit of retributive justice. There is also no reason to allow a private actor to administer the beating. If “torture” violates the humanity of the victim, no one is allowed to administer that torture. Nonetheless, once the torture is administered (that is, once that particular duty to respect humanity has been violated) Kant feels that justice has been done. The person received their just deserts and hence, retributive justice has been served. B. Explicit Exceptions to Seeking Retributive Punishment Kant also gives two explicit examples of when a state may not seek retributive punishment. The first case affirms the above argument that the duty to seek retributive justice is often trumped by the duty to respect the humanity of individuals. The second exception fails to shed much light on Kant=s theory of retribution. The first exception involves a situation where nearly everyone in a particular society deserves to be executed. Kant feels a lesser punishment may be necessary in such a case because the state may “find itself without subjects” and “pass over into the state of nature.” Further, mass execution could “dull the people=s feeling by the spectacle of a slaughterhouse.”50 It seems that once again, Kant is noting that retributive punishment will be limited if inflicting that punishment violates the rights of people. Here, however, Kant is not worried about respecting the humanity of the accused, but is worried about respecting the humanity of the others in the state. Kant seems to feel the ruler has a duty not to inflict punishments that force the rest of his subjects into a state of nature where none of their rights are protected. Further, it would run afoul of the rights of the governed to subject them to a spectacle of carnage that would dull their sensibilities. The ruler=s duty to inflict deserved death in such a situation would be trumped by her duty not to cause harm to her citizens. The purpose of the second explicit exception to the duty to seek retributive punishment is less clear. If an offense were committed directly against the ruler and not in any way against his subjects, Kant seems to allow a ruler to grant clemency to criminal offenders as long as setting the criminal free does not endanger the security of the citizens of the state.51 Kant explains that a ruler allows clemency in such cases to “show the splendour of his majesty.”52 Even though Kant seems to allow such behaviour, saying a ruler “can” and has a “right” to grant clemency in such a case, he nonetheless states that this expression of splendour is “injustice in the highest degree.”53 It is not clear to me how an act can be both permissible and an example of injustice. I can only guess that Kant did not feel that any such exception to seeking retribution existed, but meant to express his feeling that if acts of clemency were to occur, they would be

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____________________________________________________________ least unjust if they occurred when the crime was only against the ruler and the release of the offender did not threaten public safety. 5.

Kant's Theory In Practice The most powerful thing about Kant's theory of punishment is the way it put an absolute limit on the amount and severity of punishment for particular crimes because of the way it limits punishment to the severity of an individual's immoral act. An individual can never be punished any more than his deeds deserve. Though I would have great difficulty in explaining how much punishment a deed deserves, there are certain rough senses that a punishment is out of proportion with the wickedness of an act. Certainly there is some content to the statement “a life sentence is a disproportionate sentence for littering” or that “one day in jail is a disproportionate sentence for a grizzly murder.” Retribution is a proper and just goal for criminal law, because other goals of punishment lead to disproportionate sentence and use people merely as a means. For example, when the goal of a criminal sentence is rehabilitation, disproportionate sentences become possible. As an example, I recently had a client with a methamphetamine problem. After spending time in jail for robbing a bank, he was released to complete three years of supervised release.54 As part of his supervised release, he had to submit urine samples to his probation officer to prove that he was clean. However, after using methamphetamines, he turned in somebody else's urine. The probation officer discovered this and reported the infraction to the judge. The judge sentenced him to six days in jail, extended the term of supervised release, and included in his sentence that he spend six months in an in-house drug treatment program. Soon after he completed the program, he again used drugs and submitted impostor urine to the probation officer. This time, the judge gave him two months in jail, extended the term of supervised release, and again required he spend the first six months in an in-house treatment centre. But my client soon got himself kicked out of the in-house drug rehabilitation program. This time my client wanted to pursue a different strategy in court and was not interested in asking for leniency and treatment. He felt that his whole life had been taken over by the penal system. He was miserable and had spent three years in and out of jail and forced drug rehab, and it seemed to him that there was no end in sight.55 He asked that he simply be sentenced to some prison term, and that supervised release be terminated. The judge would not allow this. This time, the judge sentenced him to eleven months in jail, extended the term of supervised release, and as a condition of supervised release, required him to spend one year living in a residential drug rehabilitation program. The judge later told a colleague

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____________________________________________________________ whose client made a similar request to that of my client, “why should we reward someone for failure, by giving him what he wants?” It seemed that in the interests of rehabilitation, my client had been punished far out of proportion for his wrong. His rights had been completely eviscerated in order to help him. In the end, it seemed eleven months in jail might snap some sense into this client, as nothing else seemed to work. But it also seemed quite unjust to indefinitely deprive him of all his rights in the interest of rehabilitating him. In a retributive system, he could be punished no more than what was proportionate to the moral wrong he committed. Having the goal of rehabilitation means ignoring the client’s rights in hopes of achieving rehabilitation. The judge had the goal of rehabilitation and that left no limit on the amount of freedom that he could take away from my client in the interest of this goal. This, I believe, may be what Kant means when he talks about the inappropriateness of using someone as a means to achieve some other end. Similar injustices occur when individuals are punished in the name of deterrence of other crimes. In my practice, I represent many individuals who have illegally entered the country. The penalties become greater each time an individual re-enters the country after having already been punished and deported.56 I know the harsh penalties do act as a deterrent because many of my clients tell me that they will never come back because they know the penalties will be stiffer next time. Other clients have told me that they waited until one year and one week after being deported to illegally enter the country because they know the penalties can be greater for re-entering within one year.57 Still, the penalties for illegal entry are unjust because they violate the proportionality principle. A client of one of my colleagues was recently sentenced to eight and a half years for illegally entering the country. Most of my clients, who have long criminal histories, receive three to four years in jail for illegally entering the country. This is unjust because it is inconsistent with retributivism. Four years in jail is simply too long for the minor wrong of illegally crossing an international boundary. Rather than being harsh, exacting, and vengeful, retributivism puts limits on the amount of punishment individuals receive so that the punishment is not out of proportion with the crime. Society may have an interest in deterring illegal entry, but pursuing that goal puts no limit on how much a single individual can be made to suffer in furtherance of that goal. Kant would feel that my clients were being unjustly used as a means of achieving the United States' immigration goals. The same cannot be said if the government punishes those who illegally enter the country for the purpose of inflicting some small suffering in proportion to the moral infraction of failing to respect the sanctity of the U.S.-Mexico border. In such a case,

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____________________________________________________________ individuals would not be punished as harshly and individual offenders would not be used merely as a means to support some other end. Instead of being cruel and vengeful, adopting a retributivist theory of justice seems to be mindful of human suffering and sensitive to individual rights. 6.

Conclusion Kant=s understanding of retribution seems to form a somewhat appealing theory of punishment. Though I would certainly object to the severity of some of the punishments he allows, such as the death penalty or castration, I find appealing the notion that the principle of desert respects the criminal as an end in herself. Rehabilitation or deterrence theorists would have to go to the sad and stifling prisons of today and tell those behind bars that their suffering is “for their own good” or “for the good of society.” It seems much more accurate that prisoners are suffering because they have violated moral norms as a result of their own agency. They are responsible for their own confinement. Perhaps the reason that theorists wish to divorce Kant from his theory of retribution is because retribution is associated with vengeance or cold indifference to suffering. I doubt such emotions motivated Kant. In his Doctrine of Virtue, he warned: It is, therefore, a duty of virtue not only to refrain from repaying another=s enmity with hatred out of mere revenge but also not to call upon the judge of the world for vengeance, partly because a human being has enough guilt of his own to be greatly in need of pardon and partly, indeed especially, because no punishment, no matter from whom it comes, may be inflicted out of hatredCIt is the duty of human beings to be forgiving. But this must not be confused for meek toleration of wrongs.58 Hence, Kant does not wish to punish out of hatred or vengeance, but only in order to seek justice and respect humanity.

1

Notes

Katz, 1995; Flether, 1996. 2 Kadish and Schulhofer, 1995, 102-04. 3 Benn, 1967, 30.

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Hill, 1997, 310; Scheid, 1983, 276-79; Byrd, 1989, 193. Kant, 1997b/1794, 27:552. Page numbers for most of the citations to Kant refer to the parallel page numbers available in the cited editions which track the standard German edition of Kant’s collected works, Gesammelte Schriften. 6 Kant, 1996/1797, 6:331. 7 Kant, 1996/1797, 6:333. 8 Kant, 1996/1797, 6:333. 9 Kant, 1996/1797, 6:331. 10 Kant, 1996/1797, 6:331. 11 Kant, 1996/1797, 6:331. 12 Kant, 1996/1797, 6:331. 13 Kant, 1996/1797, 6:331. 14 Kant, 1996/1797, 6:333. 15 Christopher, 2002, 848. 16 Hobbes, 1651, 79. 17 This is the most common alternative to Kant=s retributivism. It has been adapted in Hill, 1997, Scheid, 1983, and Byrd, 1989. Notably, Hill=s position is not exactly that punishment rests on deterrence. He does state that “for imperfect creatures like us, the constraints of public criminal law, in addition of those of conscience, are necessary to provide even the minimum conditions for just mutual relations.” Scheid, 1983, 310. But he feels that the system of criminal law is not exactly justified by deterrence of crimes as much as by the necessity of “expressing moral disapproval of offenses” in order for us to live peaceably together. Scheid, 1983, 311. 18 Tunick, 1996, 62-63. 19 Murphy, 1987, 513. 20 Kant, 1960a/1791, 55-56. 21 Tunick, 1996, 513. 22 Murphy, 1987, 522. 23 Infield, 1930, at ix-x. 24 Kant, 1997b/1794, 27:286. 25 Kant, 1997b/1794, 27:286 (emphasis added). 26 Schneewind, 1997, xviii. 27 Kant, 1997b/1794, 27:552. 28 Kant, 1997b/1794, 27:552. 29 Kant, 1996/1797, 6:363. 30 Kant, 1996/1797, 6:231. 31 Kant, 1996/1797, 6:231. 32 Kant, 1996/1797, 6:231. 33 Kant, 1997b/1785b, 29:619. 34 Kant, 1996/1797, 6:235-36. 35 Kant, 1996/1797, 6:236. 5

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____________________________________________________________ 36

See Byrd, 1989, 173-80; Scheid, 1983, 267. Byrd and Scheid point to the fact that Kant states that it is the duty of citizens to enter into the state in order for rights to be protected. From there, they infer the purpose of criminal law is the protection of rights through the deterrence of rightsviolations. 37 Kant, 1997b/1794, 27:551. 38 Kant, 1997b/1794, 27:551. 39 This criticism has been made by Scheid, 1983, 268, and Murphy, 1987, 518-19. 40 Kant, 1960b/1793, 87-90. 41 Kant, 1996/1797, 6:231. 42 Kant, 1997b/1794, 27:290. 43 Kant, 1996/1797, 6:333 (emphasis original). 44 Kant, 1997b/1785a, 27:418. 45 Kant, 1997b/1794, 27:556 (emphasis original). 46 Kant calls this principle jus taliones, which calls for punishments “in proportion” to the “inner wickedness” of offenders. Kant, 1996/1797, 6:333; Kant, 1997b/1794, 27:555. 47 Kant, 1997b/1794, 27:555. 48 Kant, 1996/1797, 6:331. 49 Kant, 1997a/1788, 5:61. 50 Kant, 1996/1797, 6:334. 51 Kant, 1996/1797, 6:337. 52 Kant, 1996/1797, 6:337. 53 Kant, 1996/1797, 6:337. 54 The Supervised Release statute requires individuals, who have recently been released from prison, to report employment and whereabouts to a probation officer, to submit to drug tests, and to fulfil other responsibilities for a certain period of years after being released from prison. 18 U.S.C. ' 3583. 55 The Supervised Release statute allows the court to extend the term of supervised release whenever a defendant violates the conditions of supervised release. 18 U.S.C. ' 3583(h). A person who keeps violating, his supervised release could theoretically be forced to continue on supervised release indefinitely. United States v. Cade, 236 F.3d 463, 466 (9th Cir. 2000): 18 U.S.C. ' 3583 imposes no “statutory maximum” on the aggregate amount of time that a defendant may spend on supervised release as a result of violations of the conditions of release. To the contrary, if a defendant repeatedly violates the conditions of supervised release, the court may repeatedly impose new terms of supervised release without credit for time served on

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____________________________________________________________ supervised release. United States v. Beals, 87 F.3d 854 (7th Cir. 1996). 56 This is mostly because those with more prior convictions get higher sentences under the United States Sentencing Guidelines. Many of my clients have never committed any crimes other than illegal entry, so each time they return to the United states and are apprehended and convicted, they receive a higher sentence. 57 This is because clients are often on supervised release for a year after they get out of prison, and those who commit illegal entry while on supervised release face two sentences, one for illegally entering the country and one for violating the condition of supervised release that they commit no crimes. 58 Kant, 1996/1797, 6:460-61.

References Benn, S. (1967), ‘Punishment’, in: P. Edwards (ed.) The encyclopedia of philosophy. New York : Macmillan. 7: 30. Byrd, S. (1989), ‘Kant's theory of punishment: deterrence in its threat, retribution in its execution’, Law & philosophy, 8: 151-200. Christopher, R. (2002), ‘Deterring retributivism: the injustice of just punishment’, Northwestern law review, 8: 843-976. Fletcher, G. (1995), With justice for some. Reading, Mass.: AddisonWesley. Hill, T. (1997), ‘Kant on punishment: a coherent mix of deterrence and retribution’, Annual review of law and ethics 5: 291-314. Hobbes, T. (1651) (1976), Leviathan. London: J. M. Dent & Sons. Kadish, S and S. Schulhofer. (1995), Criminal law and its processes. Boston : Little, Brown. Kant, I. (1997a/1788), Critique of practical reason. Cambridge: Cambridge University Press. ── (1960a/1791), Lectures on ethics. New York: Century. ── (1997b, 1785a), ‘Lectures on ethics (Collins)’, in: P. Heath and J. Schneewind (eds.) Lectures on ethics. Cambridge: Cambridge University Press. 37-222. ── (1997b, 1785b), ‘Lectures on ethics (Mrongovius)’, in: P. Heath and J. Schneewind (eds.) Lectures on ethics. 223-248. ── (1997b/1794) ‘Lectures on ethics (Vigilantius)’, in: P. Heath and J. Schneewind (eds.) Lectures on ethics. 249-452.

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____________________________________________________________ ── (1996/1797), The metaphysics of morals. Cambridge: Cambridge University Press. ── (1960b/1793), Religion within the limits of reason alone. New York: Harper. Katz, L. (1996), Ill-gotten gains. Chicago: University of Chicago Press. Murphy, J. (1987), ‘Does Kant have a theory of punishment?’, Columbia law review, 87: 509-532. Scheid, D. (1983), ‘Kant's retributivism’, Ethics, 93: 262-282. Schneewind, J. (1997), ‘Introduction’, in: P. Heath and J. Schneewind (eds.) Lectures on ethics. Cambridge: Cambridge University Press. xiiixxvii. Tunick, M. (1996), ‘Is Kant a retributivist’, History of political thought, 17: 60-78.

Ordinary Sinners and Moral Aliens: The Murder Narratives of Charles Brockden Brown and Edgar Allan Poe Jean Murley Charles Brockden Brown and Edgar Allan Poe both wrote stories which can be characterized as fictional murder narratives--that is, literary works in which murder is a central plot element. Focusing on the act of murder in their fiction enables both writers to explore the philosophical and social problem of evil. If one were to paraphrase the plot of Brown’s Wieland (1799), the account would be woeful indeed: death by spontaneous combustion, the threat of rape, psychological terror inflicted upon innocents, familicide, conflagration, suicide, grief and sorrow. Comparable plot elements are present in many of Poe’s stories; “Murders in the Rue Morgue” (1841), “The Black Cat” (1843a), “The Tell-Tale Heart” (1843b), and “The Imp of the Perverse” (1845) are all tales that narrate varying degrees of violence and suffering, and have gruesome murders at their core. Brown and Poe are clearly interested in similar subject matter, but they handle the material very differently and have dissimilar literary goals. Reading these texts as murder narratives opens up valuable new perspectives upon them, for the dissonance between the murder narratives of Brown and Poe reveals that, between the lateeighteenth and mid-nineteenth centuries, a shift in the broad conception of human evil occurred in America. The theological and popular attitudes about violent transgression, as well as the larger social and political implications attached to the idea of evil, were very different in 1798 and 1845. Texts of these periods that narrate murder reflect the shifting conceptions in the understanding of evil; from ordinary sinner to incomprehensible moral alien, the changing figuration of murderers in fiction shows that evil is located first as a primarily external force which can invade any person and take root in fallen human nature, then as something which inheres only in certain human subjects. This basic ideological shift is complex and subtle, and reading the works of Brown and Poe closely as murder narratives enables explication of the evolution of ideas about evil.1 The concerns, goals, and structures of both non-fiction and fictional murder narratives changed dramatically in the forty-five years that separate Brown and Poe. In her book Murder Most Foul: The Killer and the American Gothic Imagination, Karen Halttunen writes that with the increasing secularization of many aspects of American culture, “the dominant narrative expressing and shaping the popular response to the

Brown and Poe 182 ____________________________________________________________ crime of murder underwent a major transformation in the late eighteenth and early nineteenth century.”2 These changes grew out of a rich background which should be noted before examining the differences between Brown and Poe. In the American Puritan era, the primary mode of social redress of murder within the community was the execution sermon, a text written especially for the occasion by a leading member of the clergy and usually read at the execution of the murderer or at the victims’ funerals. Within the Puritan belief system, the sin of murder was addressed as only one of many equally reprehensible sins. When a murder occurred, communal effort was devoted to encouraging the accused to confess, for only then could he or she be duly executed in the knowledge that the soul could yet be saved by the bestowal of grace after death. In the sermons, the murderer was portrayed as having stumbled into a series of ever-worsening sins as a result of fallen human nature; all people were equally susceptible to such stumbling, and the implication was that it was miraculous indeed that all did not enact their deeply sinful desires in the world. In effect, the execution sermon served to reorder the world, which had been thrown wildly out of balance by the act of murder. By symbolically integrating the sinful individual back into the community and casting murder in such terms, the sermon effectively restored theological and social balance. Execution sermons were common until the early nineteenth century, but by then other ways of righting a world thrown offbalance by radical human evil were gaining prominence. A variety of new cultural and religious forces in the period between the First and Second Great Awakenings--an influx of competing religious beliefs, the issues engendered by a rapidly growing market economy, and problems raised by increasing democratization--combined to change the response to violent transgression. The older theologicallybased understandings of human evil were no longer sufficient to explain murder in a culture that was becoming deeply shaped by Enlightenment liberal ideas about the original goodness of human nature. Brown’s work, positioned during a period of great social, political, and religious instability, registers the competing notions about radical human evil which were being worked out during the late eighteenth century. The understanding of evil in Wieland looks backward to the Puritan responses to murder and forward to newer ways of explaining evil which were to be further articulated by Poe. Between 1790 and 1850, different literary methods appeared that accounted for evil within human society in new ways: criminal biographies and autobiographies, journalistic narratives, printed transcripts of murder trials, and fictionalized accounts of real-life murders all told the story of murder in remarkably varied ways. In both the fictional and non-fictional murder literature of the period, a move can be charted from acceptance of the fact of evil upon the metaphysical stage

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___________________________________________________________ of human life into a greater desire to analyze and explain evil as it is appears in worldly time and space. Murder is presented very differently in Brown and Poe. Where the violence in Wieland is subdued and not sensationalized, Poe offers graphic representations of what Halttunen labels “body-horror.” The search for motive, that force which drives all murder plots, in Wieland centers around Clara’s quest for understanding and is ultimately rendered meaningless because she cannot figure out what really happened. In Poe, motive is generally clearer and more tangible, and in some tales the examination of the killer’s motive is secondary to explorations of the consequences of murder. Brown modelled the familicide in Wieland upon an actual event, whereas most of Poe’s fictional murders were just that-entirely fictitious.3 Although some differences between Brown and Poe can be attributed to changing literary conventions, those conventions are in a reflexive relationship with contemporary ideas about evil and real-life attitudes towards murderers. Poe was able to borrow and build upon certain Gothic techniques that others, including Brown, had already created and popularized.4 One of Poe’s major innovations, itself a turn on the Gothic horror theme, is the detective tale, a genre that Poe seems to have invented single-handedly. It is highly significant that this genre, which treats of murder and the explanations for it in entirely new ways, emerged during this period. 1.

Wieland; or, The Ambiguities In December 1781, James Yates, a farmer who lived in Tomhannock, New York, threw his Bible into the fireplace and killed his wife and his four children with an axe. Characterized as a “religious lunatic,” Yates was subsequently found insane and confined to a dungeon in Albany. This atrocity was sensational and interesting enough to be reprinted in an account in a Philadelphia newspaper in 1796, where Brown would most likely have read it. The interest in such accounts was growing during this period; trial reports had not yet gained precedence, but nonfictional “eye-witness” narratives were extremely popular. The Preface or “Advertisement” of Wieland offers a clue to the origins of the novel: “most readers will probably recollect an authentic case, remarkably similar to that of Wieland.”5 Alan Axelrod, writing in Charles Brockden Brown: An American Tale, has found that Brown very consciously used elements of the Yates murder in writing Wieland: the precise circumstances of the murders, including the presence of a voice and a vision which decreed the acts, the singular religious habits of the murderers, even the manner and order of assault upon the victims, including the obliteration of one victim’s facial features, are all elements which Brown lifted from newspaper stories of the Yates tragedy.6 That Brown modelled his novel upon a non-fiction

Brown and Poe 184 ____________________________________________________________ account suggests a close relationship between the non-fiction and the fictional narrative, and reveals that the same themes, concerns, and shaping influences were present in fictionalized murder narratives of the period. Yet Wieland is fiction, and Brown’s characters, structure, and novelistic strategies belie any overly-simple analysis. Distance between the reader and the raw facts of the story is achieved because all events are filtered through the consciousness of Clara, who may in fact be warped by the trauma that has transformed her life. Brown prefigures Poe’s very unreliable narrators with the voice of Clara, whose first sentences relate both her deep despair and her sense that her story is strange indeed: “If my testimony were without corroborations, you would reject it as incredible. The experience of no human being can furnish a parallel.”7 As an eyewitness to scenes of unimaginable domestic evil, Clara invites recognition of her authority and skepticism of her veracity. She invokes pathos, particularly when we learn that she was also a target of her brother’s murderous mania. Because the accused criminal is her brother, she is torn by conflicting emotions about his guilt. Evil is therefore cast into terms that cannot be easily absorbed by her intellect because it is processed through the intense emotions of familial love. Reading Wieland’s confession through Clara’s perception simultaneously buffers and enhances the horror of the story. The reader receives information about the details of the crime only after the fact, and (unlike what we find in Poe and later murder narratives), there is no “streaming blood and clotted gore” to contend with in this text. There are major omissions in the nested narration of the actual murders, for Clara doesn’t read--and we do not receive--the details of the slaughter of the children and Louisa Conway. We never see Wieland’s most brutal act of violence, when he obliterates Louisa’s facial features with repeated blows of the axe. The reader is kept at a safe distance from the bloody reality of murder; yet Clara’s overwhelming emotions of horror, and the interruption of the murder narrative as she swoons, enable the reader to experience her feelings more directly and to become closer to her experience of evil. The reader shares Clara’s confusion about the source of the evil that has destroyed her family, doubts that cloud any clear perception of the epistemology of evil. Her brother’s terrifying descent into murderous depravity strips Clara of the ability to reason away evil. Clara can neither understand, deny, nor accept what has happened. When she discovers Catharine’s body, Clara is faced with true evil for the first time in her rational, reasonable, and Enlightened existence. Knowledge of the murders disrupts her worldview and radically destabilizes her sense of order and safety. Clara’s reaction to the crimes illustrates the cognitive breakdown

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___________________________________________________________ which ensues when evil is figured as a metaphysical impossibility. As Halttunen writes, “Horror was about the essential meaninglessness of evil within an Enlightenment world view committed to the basic goodness of humankind.”8 This type of Gothic horror did not involve depictions of bloody scenes and the terror which a sudden and graphic grasp of evil entails; rather, horror was portrayed as speechlessness in the face of evil, evoked most effectively by Clara’s long period of delirium and fever after she views the bodies of her slaughtered family. After she reads part of her brother’s confession, Clara asks the reader “Will you wonder that I read no farther? Will you not rather be astonished that I read thus far?....The paper dropped from my hand, and my eyes followed it…My tongue was mute; all the functions of nature were at a stand, and I sunk upon the floor lifeless.”9 In the Gothic murder narrative, the presence of evil stops time, interrupts nature, and stuns the witness into silence. Instead of turning her horrified astonishment outward and seeking external sources of evil, Clara’s first impulse is to locate evil within herself and to wonder if the propensity for murder also resides within her own soul. She wonders about her own grip on a sanity that now appears tenuous: I reflected that this madness, if madness it were, had affected Pleyel and myself as well as Wieland. A form had showed itself to me as well as to Wieland....Was I not likewise transformed from rational and human into a creature of nameless and fearful attributes? Was I not transported to the brink of the same abyss? Ere a new day should come, my hands might be embrued in blood, and my remaining life be consigned to a dungeon and chains.10 Evil is something enacted in the external world, with a human protagonist, yet the reaction to such evil is curiously inward-looking. Clara’s reaction invokes the Puritan response, which located evil within every heart, every soul, and prescribed communal recognition that evil resided in us all in order for balance to be restored and the violence to be meaningfully comprehended. At the same time, her internalization of the evil that she encounters reflects the newer comprehension of evil as something that is inscrutably attached only to certain people--Clara recognizes that the specificity of experience that she, Wieland, and Pleyel have all had uniquely identifies all of them as potential evil-doers. Evil is figured here, within Clara’s understanding and the reader’s experience of the murder narrative, as something that can attack certain individuals from outside, as in the older Satanic dispensation, but that quickly becomes an internalized

Brown and Poe 186 ____________________________________________________________ force. Environmental causes produce the effects of evil, implying that the source of evil lies both within and without the human subject. The shifting epistemologies of evil during the late eighteenth and early nineteenth centuries do not fall into any easily definable categories; that is, the Puritan worldview held that evil was a force, both internal (fallen human nature) and external (Satanic persuasion). As this belief system lost primacy in American culture, the Enlightened liberal attitude about evil held that even though human nature was basically good, evil did appear in some people, largely a result of external stimuli such as intemperance or habitual lapses into vicious and low behaviour. The latenineteenth century epistemology of evil emphasized the disease model, viewing violent transgressors, such as murderers, as moral aliens. The binary opposition in the epistemology of evil which locates it as either external or internal had never been completely stable: Cotton Mather wrote in 1713 that “The Venemous Hearts of Men have in them the Root, which all Murders grow upon.”11 This statement seems to indicate that the Puritans believed evil was innate. They did. They also believed in Satan, who constantly tempted, persuaded, cajoled, tricked, and goaded people to be true to their lower selves, to embrace the inheritance of fallen human nature and continually bring more destruction into the world. But as Andrew Delbanco writes, by the end of the eighteenth century the devil had “entered his death throes. He had once been, along with the God who unleashed him, an immensely powerful symbol for the compatibility of responsibility and predestination--a unity which many people still felt in the depths of their experience, but of which they were no longer able to speak.”12 As Satan slowly slipped out of the cast of cultural figures on which we hang meaning, and as it became clear that philosophy alone could not account for the fact of evil, a crisis in the understanding of human evil took place. In the late 18th century, this crisis yielded the paradoxical conclusion that evil is both internal and external, both innate and foreign. Consequently, the murderer was conceived of as being both known and deeply mysterious, intimately understood and utterly alienated from the human family. This contradictory idea reaches an apex of literary representation in the figure of Theodore Wieland. Theodore Wieland as murderer is an emblem of the contradictory currents of thought about evil that were flowing through American culture during this period. In his confession speech Wieland situates himself as a nominal outstanding citizen, and challenges any simple judgment of him when he invokes his previous standing in his community: “Who is there present a stranger to the character of Wieland? who knows him not as a husband--father--as a friend? yet here am I arraigned as criminal. I am charged with diabolical malice; I am accused of the murder of my wife and my children!”13 Wieland does not want to inspire identification and

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___________________________________________________________ pity; rather, he makes this statement with all the righteous frenzy that his religious mania has inspired, and offers it as a prelude to the inadequate confession which follows. This statement is also a narrative device used by Brown to invoke the uniquely domestic quality of the horror that accompanies his crime. The rhetorical turn of emphasizing the seeming normalcy of the killer was widely used in non-fictional murder literature of the time, particularly in association with family-killers. Increasingly, attention was being focused in murder narratives on the mystery of the seemingly normal man who snapped and in an instant turned into a depraved monster, a precursor to locating the source of evil in moral alienation and madness. Clara underscores the quality of this horror when she writes, “Who was the performer of the deed? Wieland! My brother! the husband and the father! That man of gentle virtues and invincible benignity! placable and mild--an idolater of peace! Surely, said I, it is a dream.”14 This type of transgression, perpetrated by such an individual in the domestic setting, becomes the focus of much agitation and a new source of horror. Because Wieland’s confession speech is addressed directly to his accusers it evokes the older, theological understandings of the workings of evil in the world: You charge me with malice; but your eyes are not shut; your reason is still vigorous; your memory has not forsaken you. You know whom it is that you thus charge....Think ye that malice could have urged me to this deed? Hide your audacious fronts from the scrutiny of heaven. Take refuge in some cavern unvisited by human eyes. Ye may deplore your wickedness or folly, but ye cannot expiate it.15 The language that Wieland slips into in this paragraph--use of the older “ye,” ministerial inflections, and a strongly accusatory tone--echoes the execution sermons of an earlier period. This speech shifts blame onto the listeners, who are then exhorted to examine their own hearts for evidence of corruption. The execution sermon created an awareness in the listeners of their own sinfulness and moved attention from the person of the murderer onto humanity itself. Wieland takes on the role of minister, deflating the quality of his transgression by pointing out the “wickedness” of his listeners. But this method is no longer adequate, and reads like an attempt to diffuse the evil which he has enacted. The murderer is no longer simply one sinner among many, but a separate and distinct creature, savage in deportment and incomprehensible. Wieland is the killer, and his explanation for the murders is profoundly problematic.

Brown and Poe 188 ____________________________________________________________ Whether Wieland was labouring under the spell of some momentary madness brought about by his over-reliance on Deist principles or not, his explanation turns upon the vision and voice he encounters in Clara’s house. He says “I was dazzled. My organs were bereaved of their activity....it seemed as if some powerful effulgence covered me like a mantle”; yet, “it is forbidden to describe what I saw.”16 Wieland has witnessed what he interprets as the Godhead, but he cannot offer his vision up to the scrutiny of others. His trust in the veracity and goodness of the vision comprises Brown’s chief critique of the dominant ideologies about human psychology, ideas that relied upon and grew out of Lockean sense psychology. Wieland bases his actions upon sensory information which is then filtered through his conscience, conceived of as a “sixth sense.” The problem is that sometimes the conscience itself is flawed. The tenets of the Scottish Common Sense school of philosophy-the ideas of people like Adam Ferguson and David Reid--demanded “that the individual nurture and follow the dictates of conscience.”17 Wieland’s reliance upon his senses and conscience to process the information he receives ushers in the disaster of his personal Abraham-Isaac tale. If the conscience is not to be trusted, if we cannot distinguish between the voice of God and the voice of Satan, how then are we to proceed? What, then, is evil, and what is guilt? Wieland himself asks these questions in his final words to his judges. The question of motive is usurped in this explanation, for Wieland cannot be faulted for obedience to God.18 His final statement is an appeal for understanding and love from the Deity he continues to serve: Thou, Omnipotent and Holy! Thou knowest that my actions were conformable to thy will. I know not what is crime; what actions are evil in their ultimate and comprehensive tendency or what are good. Thy knowledge, as thy power, is unlimited. I have taken thee for my guide, and cannot err. To the arms of thy protection, I entrust my safety. In the awards of thy justice, I confide for my recompense.19 Wieland’s confession is really an anti-confession. Freely admitting that he has in fact killed his family, Wieland ultimately deflects responsibility for his actions onto an inscrutable deity whose motives and plans cannot be comprehended by mortals. Similar to his earlier statements, which contained echoes of the execution sermon, Wieland’s confession is a remnant of the responses of early American killers, whose confessional statements served to symbolically reintegrate them into society and reinstate their position as possible beneficiaries of God’s approval.

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___________________________________________________________ Wieland’s statements also look forward to later interpretations of murder and definitions of the source of evil, which were to become centred on the medicalized flaws of the individual killer. The theological response to murder eventually dropped away entirely, and was replaced by an emphasis upon the uniquely depraved nature of the individual killer. Brown’s figuration of Wieland’s motive, most evident in his confession, registers the profound inadequacy of reliance both upon God and the dominant secular psychology of the period in order to explain the presence of evil. Halttunen writes of the eighteenth century that “around midcentury the popular literature of murder in America began a major reconstruction of the murderer, from common sinner into moral alien, in response to the new understanding of human nature provoked by the Enlightenment.”20 Wieland was not “popular literature” in Halttunen’s sense of the term; she writes primarily about non-fiction murder narratives found in pamphlets and newspapers. Yet, the same representational shift in the figure of the murderer is evident in Brown’s work. The new murderer is understood in this literature as a moral monster, separated from the rest of the human family by his unnatural appetite for destruction and violence. Radical human evil was conceived of as bizarre nonconformity to the template of basic human nature. At the same time, because such ideological shifts do not occur quickly or cleanly, remnants of the older belief system remain. Theodore Wieland as murderer is therefore figured as both common sinner and moral outsider; he is at once deeply familiar to the reader as a normal loving husband and father, and utterly alien as a moral monster who slaughters his family. The understanding of evil in Wieland is further problematized in the figure of Carwin, who functions as an ambiguous source of both evil and good. Carwin has a multiplicity of roles and functions in the Wieland saga. He is the ghostly and unlawful inhabitant of the temple, the site of Wieland’s father’s death now converted into a shrine to the joys of rational existence. He is a mysterious and unknown stranger, an emblem of the tension about outsiders in an increasingly mobile population. He is a trickster who prompts Pleyel to reassess his plans to relocate to Germany. He is a counterfeit of the Old Testament God of the Abraham and Isaac story, and the Satan of Job when he tests Clara’s fortitude and commitment to reason by imitating the voices of murderers in her closet. He is also a malevolent, not just mischievous, character when he imitates Clara’s voice to make Pleyel believe that she is a villainess. Carwin’s role in the familicide is never clear--in the final scene he admits to producing the voices and visions which have been terrorizing Clara and her family, but he equivocates when questioned closely by Wieland about the specific vision that ordered the murders. Certainly, his actions created a climate of mystery and sinister foreboding that quite possibly allowed Wieland’s

Brown and Poe 190 ____________________________________________________________ latent madness to come to the surface and bear tragic consequences. Carwin, however, does save Clara from her brother, by using the same bioloquial faculty he had formerly used to injure her. Carwin, just like the figure of Wieland, contains a tangle of contradictory messages about the nature of evil. Before she hears Carwin’s explanation of events, Clara had blamed him for the tragedy in her family: “The name of Carwin was uttered, and eternal woes, woes like that which his malice had entailed upon us, were heaped upon him.”21 Clara saw him as the sole source of the evil which had befallen her family. But Carwin’s story seemingly exculpates him; his words certainly mediate any solid conviction of his guilt in this narrative. As he says, I am not this villain; I have slain no one; I have prompted none to slay; I have handled a tool of wonderful efficacy without malignant intentions, but without caution: ample will be the punishment of my temerity, if my conduct has contributed to this evil.22 The question becomes, is Carwin guilty only to the extent that he was careless with his biloquial ability? Can he be held accountable for the tragic consequences which his visions and voices produced? Even if he did create the vision of the Godhead, and made it speak the command to kill, is he responsible? Carwin’s role in this drama leads formerly stable notions about definitions of evil into a moral swamp. In the end, the utter ambiguity of his responsibility, as Clara first blames and then exonerates him, offers the reader no easy answers to any of these questions. The details of his personal story complicate any easy reading of his culpability, for Carwin does admit that he knew the dangerous possibilities of using his biloquialism to manipulate people: he tells Clara that “A thousand times had I vowed never again to employ the dangerous talent which I possessed; but such was the force of habit and the influence of present convenience, that I used this method.”23 Carwin portrays himself as a Faust-like character, a young man who allows himself to be influenced by the sinister Ludlow and trained to carry out nefarious deeds because of his “passion for mystery, and a species of imposture.”24 He describes himself as feeling unable to resist the desire to utilize his talent, as in the temple when he announces the death of Theresa de Stolberg: “The temptation to interfere in this dispute was irresistible.”25 Looking forward to Poe’s concept of the “Imp of the Perverse,” Carwin represents himself to Clara as one tortured with an overpowering need to meddle, to create mischief; he has the perverse desire to push upon the weak spots in fragile humanity until each tenders its own uniquely destructive results.

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___________________________________________________________ Does this make him evil? When he uses his biloquial faculty to save Clara from Wieland, is he under the sway of his own Imp, or does he finally have an attack of morality which redirects his actions? The late eighteenth century understanding of human nature, shaped by Lockean sense psychology and the ideas of the Scottish Common Sense philosophers, did not take into account the darker aspects of life which persisted in human experience. In Wieland, Brown grapples with the presence of human evil in society and imaginatively constructs a situation that challenges the prevalent assumptions about human nature, notions that repressed meaningful acknowledgment of radical evil. Wieland figures evil as an epistemological problem, highly ambiguous in origins, intractable, and woven into a net of other religious, philosophical, and political issues. Faced with enormous uncertainty about the origins of evil in the story--doubts about the extent of Carwin’s role in generating Wieland’s homicidal delusions, the mystery of the voice and vision which prompted Wieland to kill--the reader is left with a very unsatisfying conclusion: Clara’s last words to the reader are, “I leave you to moralize on this tale.”26 There can be no easy conclusion to this murder narrative, because it reflects the cultural and ideological move away from theological teachings about fallen human nature and the inherent sinfulness that impels men toward evil actions. A coherent narrative had not yet emerged to take the place of the theological understanding. Brown was living and writing at a moment when notions about the presence of evil in the world were profoundly unstable, and the ambiguity of evil in Wieland is an expression of that instability. 2.

Poe’s Moral Aliens Brown and Poe both crafted murder narratives that typified the dominant constructions of the murderer during their separate historical moments: for Brown, the murderer was a conflicted embodiment of competing ideas about evil as both an external and internal force, and therefore the killer was both familiar to and separate from his society. In Poe’s tales, one notion about evil predominates: Killers are moral aliens, singular men, separate from the rest of humanity. The horror scripted by Poe is of the body and the mind, and not, as in Wieland, born of the realization that evil exists, and centred around accounting for the category itself. Poe takes the existence of evil for granted; it is the very atmosphere in which his tales breathe, and violent transgression the ground from which they spring. By the 1840s, the murderer was firmly viewed as a mental alien--that is, “someone set apart from normal, healthy humanity by somatic disease and by the mental, physical, and moral peculiarities it generated.”27 Poe both invoked and critiqued this model of the killer, for he simultaneously strengthened and deconstructed the medicalized

Brown and Poe 192 ____________________________________________________________ explanation of murder while questioning the assumptions about human nature which this model implied. The notion of insanity as the origin of evil is illuminated in several of Poe’s murder narratives, and in his tales of “ratiocination,” Poe created another type of response to murder altogether. His stories drew from and contributed to an emergent understanding of homicidal insanity which would evolve into the later nineteenth-century concept of criminal deviance. Many of Poe’s tales make the point that human beings contain an irresistible impulse for contradictory behaviour which then creates the possibility for evil to occur. In “The Imp of the Perverse,” the Imp is figured as an internal impulse that compels one into self-destruction, to act against one’s own spirit and sense of moral justice. In this tale the act of murder is secondary to descriptions of the internal mechanism which goads the narrator into the self-destructive act of confession. The subversion of the older notion of the salvational value of confession reflects a final move away from comprehending evil within a framework of religious belief. The disappearance of spiritual certainties, including the categories of good and evil, yields an “imp” that is delineated in specifically anti-theological terms: In the consideration of the faculties and impulses of the prima mobilia of the human soul, the phrenologists have failed to make room for a propensity, which, although obviously existing as a radical, primitive, irreducible sentiment, has been equally overlooked by all the moralists who have preceded them. In the pure arrogance of the reason, we have all overlooked it.28 Increasing reliance upon science and reason to foster greater comprehension of the organization of the human subject has, for Poe, created an untenable epistemology of mind. Poe’s insistence on the existence of an entirely irrational force which acts aggressively in human life constitutes a critique of Enlightenment rationality which is similar to Brown’s in Wieland: Not taking into account the force for disorder and darkness is pure folly. There is in the mind a strong tendency toward the perverse: for its own sake, for the pleasure of going against expectations, for doing things “merely because we feel that we should not.”29 Poe’s description of this Imp cautions the curious to look no further, because “beyond or behind this, there is no intelligible principle.”30 But there is an organizing principle behind the Imp of the Perverse, for it is a spirit that consistently works against reason. It is the voice that encourages procrastination, that “positively fearful, because unfathomable craving for

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___________________________________________________________ delay.”31 It is the irrational impulse to fling oneself off a cliff while standing on the brink of a precipice. It is the desire to undo all the work that reason and rational actions are continually engaged in--selfpreservation, ambition, furtherance of one’s own goals and wishes. Most people are able to quell the voice that urges self-destruction--otherwise the human race would end very quickly. But the moral makeup of certain individuals allows the Imp to triumph, and the murderer in his nineteenthcentury dispensation as moral alien is one of those unfortunates. In the mind of such a person the designations of reasonable and irrational behaviour can become switched: It is reason, and not the desire for perversity, that prompted this narrator to murder. As he says, “It is impossible that any deed could have been wrought with a more thorough deliberation.”32 To the narrator, murder is a rational act and is carried out with cold-blooded indifference for a very practical end--financial gain. The killer’s moral scheme is turned upside down, with murder understood as a good, so the Imp works against the narrator’s best interest of secrecy and forces him to confess: “some invisible fiend, I thought, struck me with his broad palm upon the back. The long imprisoned secret burst forth from my soul.”33 The Imp works toward order and balance because it is a force which transcends the usual categories of good and evil; it does not discern between good and evil, it just acts against whatever force predominates within a given individual. In the murderer’s world the craving for perversity perversely creates order by solving a mystery. The growing sensationalism of murder narratives in the penny press during this period emphasized the horror of the cold-blooded killer, that person who can commit the most hideous atrocities calmly and without passion. Such figurations contained the implicit recognition of new legal definitions of insanity such as monomania, or “delusion in only one area of perception or action or, more crudely, on a single subject.”34 Alienists created different categories of insanity, including partial, intellectual, impulsive, instinctive, and moral. By the mid-nineteenth century, “the new field of medical jurisprudence offered its solution to the problem of radical human evil in a post-Enlightenment world: the insanity defense.”35Insanity, and not the failure of morality or self-control, became the legally recognized reason that evil, in the form of murder, existed at all. The propensity toward evil was now figured as something impossibly entrenched in certain individuals, an internal flaw akin to a hereditary or congenital defect. Murders that involved peculiarly heinous acts of violence or premeditation were blamed on epilepsy, hysteria, head injury, or the presence of a disease which placed the killer in a separate mental category. Evil was something with entirely environmental, almost physical, origins. Again, the epistemological categories of evil as either external or internal cannot be fixed, for evil has always been figured as

Brown and Poe 194 ____________________________________________________________ something that is both inherent in and external to the human mind, with varying degrees of emphasis placed upon either explanation. Poe’s figuration of the murderous mind in “The Imp of the Perverse” suggests attention to the changing categories of madness and the understandings about evil that swirled about in contemporary courtroom struggles over guilt and innocence, free will and the predilection for madness. When Poe was writing, new issues about furthering the growth of the democratic state had emerged and were altering the notion of how the conscience works. The shifting economic landscape of Jacksonian democracy, the enormous influx of immigrants into the country in the 1830s and 40s, the rise of urban America with its new problems and secret evils, all worked to create a great deal of tension within society and the individual. Such anxiety further destabilized the construction of personal identity, and increasing secularization informed new definitions of behavioural norms that demanded internalization of formerly external controls upon behaviour. The human subject is pushed and pulled according to the dictates of an unreasonable, intractable, and ultimately inscrutable inner force. Poe’s Imp simultaneously mimics the voice of both god and the devil, and conscience is figured as the force which can produce both good and evil. The Imp causes the murderer to confess, but because the lunatic has an imbalanced moral scheme, confession is an evil. Where Brown had initially questioned the stability of the individual conscience in Wieland, Poe suggests that conscience is a dual construction that cannot be relied upon to act consistently for the good. It is significant that the tale is split into two parts, for the split is emblematic of the dual nature of the conscience that the tale illustrates. The first part consists of the narrator’s philosophical musings about the spirit of perversity, and it describes how the spirit of perversity operates in the normal psyche, while the second part of the tale details the murder itself and the narrator’s confession, and describes the Imp as it exists in the mind of a murderer. This split is a narrative strategy which powerfully illustrates the decline of a reasonable man into the delusional mental state that was beginning to be conceived of as a killer’s hidden, secret state of mind. The emerging definition of madness contained the notion that reason and the irrational can coexist within the same mind, which was a significant departure from the older notion that all lunatics were raving “wild beasts.” Formerly, the legal definition of insanity relied upon what was known as the “wild beast” test, which held that madness consisted of “total deprivation of memory and understanding.”36 By the early nineteenth century this definition was being regularly challenged and a different narrative of madness consequently emerged. The new lunatic was entirely capable of reasoned action, shown most forcefully in the careful plotting of Poe’s murderers: “with what

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___________________________________________________________ foresight--with what dissimulation I went to work!”37 The narrator of “The Tell-Tale Heart” even makes the polemical point that “Madmen know nothing,”38 a dramatization of the competing arguments surrounding general cultural acceptance of the insanity defense. Vehement statements such as “why will you say that I am mad?”39and “Yet, mad am I not,”40 betray Poe’s subtle incorporation of the new courtroom discourse of homicidal insanity. The narrator of “The Black Cat” has fallen prey to “the Fiend Intemperance,”41 understood as one of the precursors to murderous lunacy. The narrator evinces an unconscious understanding of the disease narrative of insanity when he exclaims “But my disease grew upon me--for what disease is like Alcohol!”42 The narrator of “The TellTale Heart” shows symptoms of monomania in his obsession with the old man’s “pale blue eye,”43 which is his motivation for murder. At the end of “The Imp of the Perverse,” instead of raving like the lunatic that he obviously is, the narrator calmly assesses his situation: “To-day I wear these chains, and am here! To-morrow I shall be fetterless!--but where?”44 That a person could so rationally confront questions of mortality and his imminent journey into the unknown underscores the point that Poe’s moral aliens were not the “wild beasts” of former lunacy narratives. However, one of Poe’s most famous murderers was, in fact, just that. The orangutan-killer in “Murders in the Rue Morgue” is a device that Poe uses to critique and question the growing dominance of the insanity narrative by taking that particular explanation of evil to its furthest logical conclusions. In this tale, Poe’s conception of the moral alien reaches an apotheosis, and “Rue Morgue” is a masterful critique of the concept of moral alienation and insanity as a stand-in for evil. Placing an ape in the position of murderer undermines the search for motive, for an animal cannot be held morally accountable for its actions. This arrangement neatly reflects the murderer-as-madman ideology, for the question of blame is obviated within the insanity narrative. The ability both to assign guilt and to punish transgressors is lost when evil actions are simply deemed “insane.” One indication of the problem of leaving behind questions of motive and blame for evil is the fact that although Dupin solves the mystery of these murders, a terrifying sense of insecurity has been introduced with the notion that orangutans can break into our apartments and slaughter us at any time. Poe suggests that even if the perpetrator of a monstrous crime is a complete moral alien, a member of an entirely separate species, we must confront and somehow understand evil. Murder still occurs, and even within an epistemology which understands evil as generated by madness, the forces of reason can only look at the aftermath and try to explain what happened. In the figure of Dupin, Poe illustrates that security is impossible in a universe where evil exists. The tension between evil and the

Brown and Poe 196 ____________________________________________________________ explanation which accounts for it is increased, for Dupin’s meticulous machinations are countered with exceptionally graphic and bloody details. The body-horror in “Rue Morgue” is at a fever-pitch, because the reader experiences both the discovery of the bodies--Mlle. L’Espanaye stuffed up a chimney, her mother’s throat slit so completely that her head is severed-and a re-enactment of the crime itself in Dupin’s extensive explication. Even though Dupin “solves” the mystery, Poe makes clear that such solutions offer only the illusion of security, and not the real thing. Detective fiction is, after all, only “a fantasized solution to the problem of moral uncertainty in the world of true crime,” and it is highly significant that this genre was created during the period which saw the rise of the insanity narrative.45The insanity explanation of evil, although it carries the tantalizing possibility that one day evil may be eradicated just like other physical diseases, is deeply inadequate. In the end, the insanity narrative, like the depravity narrative before it, can never fully account for the existence of evil in the world. “Murders in the Rue Morgue” is one instance on a continuum of ever-changing attempts to come to terms with that fact. 3.

Of Two Evils In surveying the murder narratives of Brown and Poe, one might ask if Poe offers a more satisfying explanation than Brown does of the human impulse toward violence. Looking at the history of murder narratives, it does seem like we are always searching for a more satisfying explanation for evil, as though we labour under the delusion that if we can just tell ourselves the right story about evil, it will go away. Both Brown and Poe, at their different historical and cultural moments, suggest that the boundaries separating the moral categories of good and evil are no longer firmly fixed, that spiritual certainties and the security that was created by faith no longer exist. In his initial description of the Imp of the Perverse, Poe portrays a world wherein the religious cosmologies which had formerly ordered the universe are gone, replaced by the empire of reason, which cannot comprehend the irrational: We have suffered its existence to escape our senses, solely through want of belief--of faith;--whether it be faith in Revelation, or faith in the Kabbala. The idea of it has never occurred to us, simply because of its seeming supererogation. We saw no need of the impulse--for the propensity. We could not perceive its necessity.46

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___________________________________________________________ In a world devoid of spiritual values, where the figure of Satan no longer exists and so cannot serve as a receptacle for all the unacceptable aspects of humanity which were his former responsibility, where horror predominates and transgression is meaningless because there is nothing to transgress against--then and there, the Imp of the Perverse thrives. The reasonable suggestion that there is no need for perversity is deeply suggestive. There has never been a “need” for evil; there has always been a need to account for it. Brown and Poe both possessed creative imaginations which took that accounting very seriously, and each offered fictional murder narratives which expressed and defined the need to understand evil. Brown’s murder narrative in Wieland expresses the search for a new, more adequate conception of evil and understanding of the murderer; Poe’s tales are literary landscapes of psychological frontiers and extreme sensations, and he places his murderers at the very edge of the moral frontier. Neither narrative is the definitive, nor even the better, attempt at comprehension; rather, the ever-changing literary forms that narrate violent transgression only affirm that murder, as well as the evil that creates and defines it, remains incomprehensible.

1

Notes

The term “moral alien” is from Halttunen, 1998. It expresses the emergent nineteenth-century understanding of mental alienation, or separation from the rest of humanity--and from oneself--because of some type of insanity. 2 Halttunen, 2. 3 One of Poe’s tales of “ratiocination,” “The Mystery of Marie Roget” is an exception. This tale is based upon a real-life mystery--the unsolved 1841 murder of Mary Rogers, whose body was found floating in the Hudson River. 4 Axelrod, 1983, 182. Note number 10 in Axelrod contains a useful list of critical studies which compare Poe and Brockden Brown. 5 Brown, 1991/1798, 4. 6 Axelrod, 54-56. Yates also saw a vision and heard voices which commanded him to slaughter his family. Axelrod has found an outline that Brown made in preparation for writing Wieland which cites specific elements of the Yates crime and transmutes them into possibilities for his novel. 7 Brown, 6. 8 Halttunen, 56. 9 Brown, 198-199.

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Brown, 204-205. Halttunen, 13. 12 Delbanco, 1995, 89. 13 Brown, 186. 14 Brown, 198. 15 Brown, 186-7. 16 Brown, 190. 17 Watts, 1994, 8. 18 Davis, 1957, 93. Wieland would have been more fortunate in a different time and place: Davis writes, in 1844, Chief Justice Lemuel Shaw of Massachusetts ruled that a murder was excusable if the killer acted under the delusive but sincere belief that he was obeying a command of God, which would supersede all human and natural laws....Had Wieland gone before an American court in the 1840s, it is probable that his crime would have been excused as an accident. 19 Brown, 201. 20 Halttunen, 35. 21 Brown, 220 22 Brown, 225-26. 23 Brown, 228. 24 Brown, 229. 25 Brown, 229. 26 Brown, 1798, 278. 27 Halttunen, 1998, 210. 28 Poe, 1984/1845, 826. 29 Poe, 1984/1845, 829. 30 Poe, 1984/1845, 829. 31 Poe, 1984/1845, 828. 32 Poe, 1984/1845, 830. 33 Poe, 1984/1845, 831. 34 Haltunen, 216. 35 Haltunen, 234. 36 Halttunen, 214. 37 Poe, 1984/1843b, 555. 38 Poe, 1984/1843b, 555. 39 Poe, 1984/1843b, 555. 40 Poe, 1984/1843a, 597. 41 Poe, 1984/1843a, 598. 42 Poe, 1984/1843a, 598. 43 Poe, 1984/1843b, 555. 44 Poe, 1984/1845, 832. 11

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Haltunen, 131. Poe, 1984/1845, 826.

References Axelrod, A. (1983), Charles Brockden Brown: an American tale. Austin: University of Texas Press. Brown, C.B. (1991/1798), Wieland; or, the transformation: an American tale. New York: Penguin. Davis, D.B. (1957), Homicide in American fiction, 1798-1860: a study in social values. Ithaca: Cornell University Press. Delbanco, A. (1995), The death of satan. New York: Farrar, Straus and Giroux. Hagenbuchle, R. (1988), ‘American literature and the nineteenth-century crisis in epistemology: the example of Charles Brockden Brown’, Early American Literature, 23: 121-151. Halttunen, K. (1998), Murder most foul: the killer and the American gothic imagination. Cambridge: Harvard University Press. Poe, E.A. (1843), ‘The black cat’, in: P.F. Quinn (ed.) (1984), Poetry and tales. New York: Library of America, 1984. 597-606. ── (1845), ‘The imp of the perverse’, in: P.F. Quinn (ed.) Poetry and tales. ── (1843), ‘The tell-tale heart’, in: P.F. Quinn (ed.) Poetry and tales. 555559. Rosenthal, B. (ed.) (1981), Critical essays on Charles Brockden Brown. Boston: G.K. Hall & Co. Silverman, K. (1991), Edgar A. Poe; mournful and never-ending remembrance. New York: HarperCollins. Ulrich, L.T. (1990), A midwife’s tale: the life of Martha Ballard, based on her diary, 1785-1812. New York: Vintage Books. Watts, S. (1994), The romance of real life: Charles Brockden Brown and the origins of American culture. Baltimore: Johns Hopkins University Press.

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Evilness and Law in Heinrich von Kleist’s Story “Michael Kohlhaas” Karen-Margrethe Simonsen Heinrich von Kleist (1777-1811) belongs to the romantic era, but he is to be placed at the margin of romanticism. He is a poet of extremes with a violent sense of Weltschmerz, but he is also a cool writer with a dry, precise, and sober-minded prose. This doubleness is mirrored in the history of reception as an ambiguity about how to read Kleist. Is he a poet of irrational emotion, whose writing exploits the unconscious depths of life or a rational, realistic poet, investigating the validity of social structures and moral behaviour? According to Gramsci von Leopardi, what we see through the work and life of Kleist, is the “Übergangskrise zum modernen Mensch” (“crisis of transition into modern man.”1 Benno von Wiese has elaborated on this idea, placing Kleist right at the moment of collapse of German idealism, with an acute sense of dissonance between Idea and reality.2 The argument is that the world expands so much that it cannot be grasped and formed by an Idea. Reality seems instead to be ruled by unknown and unheimliche laws. The only thing that survives after this collapse of idealism seems to be a resigned longing for an absolute order which no longer has hope of finding support in the modern world in any religious, mental, social, or aesthetic structures. According to von Wiese, Kleist can therefore be regarded as the incarnation of absolute negativity. In opposition to Goethe’s “das Ich im All” (the I in the all), Kleist can be said to represent “das Ich gegen das All” (the I against the all).3 However, if one takes a look at Kleist’s literary works, one must add to this picture that the collapse of idealism does not mean that Kleist gives up looking for a new order. Though, in an abstract sense, it is true that the abrupt realism of his texts forms a constant negation and dissolution of an ideal order, the attentive look of the narrator and the subtle structure of Kleist’s texts cannot be wholly explored under the perspective of anti-idealism. In this article, I shall focus on the order that remains after the acid bath of anti-idealism. My two main points of interest are the following: the first concerns the status of the hero, the second the status of the law, both of which I shall study in the story “Michael Kohlhaas” (1810). My aim is to discuss the question of evilness: what can be called “evil” if there is no stable world order? What is the source of evil? In 1800 Kleist writes in a letter to his fiancée, Wilhelmine:

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____________________________________________________________ Ach, Wilhelmine, I recently heard debated in Natural Law the question of whether the contracts of lovers could be valid because they are made in a state of passion – what am I supposed to think about a discipline that racks its brains over the issue of whether there is such a thing in the world as property and which for that reason would only teach me to doubt whether I may ever justifiably call you mine. No, no Wilhelmine, I don’t want to study law [die Rechte], not the vacillating, uncertain, ambivalent laws of reason: I want to cling to the laws of my heart, and I want to practice them, whatever all the systems of philosophy may object.4 According to the lawyer Theodore Ziolkowski, who is an important theoretician within the law and literature movement, this quotation shows “an early instance of the dissociation of law and moral conviction (“laws of my heart”) that will later plague all of Kleist’s heroes.”5 The question is, however, what “laws of my heart” means. The opposition, as stated by Kleist, is between systematic thought which because of its rationality is vacillating and ambivalent, and something outside systematic thought that is more straight, true, and simple. However, one should also acknowledge the pragmatic context of the quotation, that is, its place in a love letter. Kleist’s stories tell us that the “laws of the heart” or “moral conviction” ¾ as Ziolkowski translates it ¾ are not always that simple. The term “laws of the heart” is problematic in that it insinuates that moral conviction is situated inside the person, in opposition to the systems outside. In a letter from 1801 (also quoted by Ziolkowski) Kleist writes to Wilhelmine: Let it not be said that an inner voice secretly and clearly confides to us what is right. The same voice that urges the Christian to forgive his enemy urges the islander to roast him, and with reverence he gobbles him up.6 So the inner voice cannot necessarily be trusted, and its origin is dubious. What is more, the characters in Kleist’s stories very rarely show us their inner self. One could say that they even question the opposition between inward morality and outward rationality. My point here is that the characters in Kleist’s stories do not have any inside, or that the inside is only a reflection of the outside. If I am right about this, and Kleist is not just pulling a trick on us, this has

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____________________________________________________________ some serious effects on how we can evaluate the question of responsibility and its opposite: evilness. 1.

The Flat Hero The life of Kleist was marked by one long series of crises and inner conflicts, in the end resulting in his early suicide. In many studies of Kleist’s literary work, this personal story seems to contaminate the understanding of the literary characters. This does not apply to Benno von Wiese, who locates the increasing interest in the individual in the Zeitgeist: Je bodenloser [...] die Wirklichkeit wird, je mehr sie entgleitet, um so dringlicher wird die Frage nach dem sich selbst überlassenen Ich und dem noch möglichen Boden für menschliches Wesen und Schicksal. Dieses Alleinsein, Für-sich-Sein und Sich-selbstPreisgegebensein wird zum Grundmotiv der deutzschen Tragödiendichtung des 19. Jahrhunderts. Am nachdrücklichsten ist es bei Heinrich von Kleist gestellt [...]7 (The more unfounded [...] reality gets, the more it slips away, the more urgently a question pops up about the I left to himself and the possibility of finding a ground of human meaning and destiny. This being-alone, beingon-one’s-own, and being-at-the-mercy-of-oneself becomes a dominant theme within the German tragedy in the nineteenth century. This is most clearly seen in Heinrich von Kleist [...], [my translation].) The risk, however, even in this subtle understanding of a problematic hero, is that it overemphasizes the inner life of the characters. What does the Alleinsein (being-alone) of the individual really consist of? And what is the status of this Alleinsein if it is the result of a worldly fragmentation? Let us take a look at “Michael Kohlhaas,” the title of which indicates that it is a story about an individual. We only have to read the first paragraph of this story to find confirmation of the fact that Kohlhaas is indeed a true individual: He has a character and a story, he is located in time and space, and the inner drama of his personality is hinted at. Kleist tells us that Kohlhaas, son of a schoolteacher, at the same time is one of “the most honourable as well as one of the most terrible men of his age” (“Einer der rechtschaffensten zugleich und entsetzlichsten Menschen seiner Zeit”).8 The paradox is underlined when it is stated only a

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____________________________________________________________ paragraph later that it was his sense of justice that made him a thief and a murderer: “Das Rechtgefühl [...] machte ihn zum Räuber und Mörder.”9 The sentence poses a riddle for the reader, a riddle to be solved through the reading of the story. How can honour and a sense of justice lead to murder? There is a serious problem here concerning cause and effect. The first problem is to understand how the law abiding and caring husband and father who is pictured at the beginning can turn into a murderer who burns down whole cities, without any regard whatsoever for the victims. The second problem is to understand that the good character is the cause of the bad one. But the third problem is that in the end the story invites the reader to see the sense of justice and evilness as two simultaneous qualities of Kohlhaas’ character. Kohlhaas stays just, even as a murderer. The story is written in 1810, but takes place in the sixteenth century. The initial wrong done to Kohlhaas happens when as a horse dealer he tries to pass the border between Brandenburg and Saxony in order to sell his horses there, as he has done many times before. However, this particular day he finds a bar across the road, put up by the new master of a castle nearby, the Junker von Tronka. Not only does Kohlhaas have to pay to pass the border, which he does without serious objections, he also has to produce a pass that the castle illegally demands of him. As he is unable to show a pass, they keep two of his best horses. When Kohlhaas later returns to collect them, he finds them starving and overworked to such a degree that they can hardly stand up. He demands that they should be restored to their former state of health. As this is denied to him, he leaves the horses in order to seek justice by way of the court. All through the following lawsuits, Kohlhaas sticks to his one wish of having his two black horses back in a healthy state. Stubbornly he repeats the claim and, though he is put under pressure from various sides, including the authorities, his friends, and his wife, he will not agree to any compromise with his opponent. Finally, as it turns out that he will receive no justice, he first burns down the castle of Junker von Tronka, then he burns down every town that protects the Junker. Not only does he break the law, he installs himself as a sovereign lawmaker and hangs people when he judges it necessary. The story of Kohlhaas is thus the story of how a rightful, justified claim when pursued rigoristically turns into its opposite: an unjustifiable action. As J. Hillis Miller remarks in his reading, Kohlhaas reads the law literally. He wants exactly the same back as he has lost. Only the same is the equal of the same.10 He sticks so much to this claim that all other considerations are put aside, and it is his radicalness that in the end costs him his life. In the last paragraphs he actually achieves justice. He

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____________________________________________________________ gets his horses back in a healthy state, but this happens as he stands at the scaffold, waiting to be executed for the wrongs he has done to the state. However, he is not depressed at the prospect of dying, leaving five children behind. Kohlhaas dies happily, since in his mind, justice and the order of the world thus have been re-established. His own death seems a minor price to pay for this. He sees himself as the winner, and the end of the story confirms his victory by telling the reader that the opponent of Kohlhaas was broken in mind and body, whereas the sons of Kohlhaas were knighted and lived prosperous and happy lives with many descendants. In a certain way, the story seems to affirm that Kohlhaas really was the good man, that he was right in pursuing his goal, and that his literal reading of the law was the right way of seeing things. But we should hesitate here and remember the inherent doubleness of Kohlhaas’ character. As John M. Ellis has pointed out in his study of the story, it is of vital importance that the paradoxical doubleness is not dissolved in a “before and after,” and that the reader does not choose between a good and an evil Mr. Kohlhaas. The grandeur of his personality, says Ellis, rests in the fact that he is able to incorporate and live with such a large self-contradiction.11 His grandeur, perhaps, but again, we must hesitate. Is Kohlhaas really a grand character? Maybe, but not in any romantic or modern sense of the word. In a romantic/modern sense, the word “grand” implies having a richly faceted personality with depth and nuances. In such a character there can be inner conflicts, ambiguous desires and emotions, potential joy or sufferings. Or: the character can have an ironic twist, an element of doubt, self-reflection, or often an acute sense of the ambiguity of selfexpression in language. However, neither of these traits seems to characterise Kohlhaas. Though we are told that he is an extraordinary man and son of a schoolteacher, we do not know very much about his personality. We do not follow his inner reflections or doubts; we do not hear about his emotions. And of course, Kleist’s dry and abrupt style contributes to the superficiality of the portrait. In fact, we never do see Kohlhaas on his own, either literally or metaphorically, and it would therefore be difficult to speak of his Alleinsein or his Für-sich-sein. Just as in Greek tragedy, he is rather understood through a certain complex of problems and through his actions. What Hegel said of the hero in the Greek tragedy could also be said of Kohlhaas: Das eben ist die Stärke der grossen Charaktere, dass sie nicht wählen, sondern durch und durch von Hause aus

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____________________________________________________________ das sind, was sie wollen und vollbringen. Sie sind das, was sie sind, und ewig dies, und das ist ihre Grösse.12 (For this is the strength of great characters, that they do not choose; on the contrary, through and through they are what they want and what they do. They are what they are, forever this, and that is their strength [my translation].) Kohlhaas is not modern. He is not in a situation of absolute freedom of choice, and he cannot develop as a character. In his own self-conception, he simply does what he has to do according to his specific character or his obstinate mission. When he reflects, it always happens through dialogue with somebody else, somebody who plays a very specific role in relation to his mission. This means that the problem of Kohlhaas is twisted and turned a hundred times, but the personality of Kohlhaas never changes one bit. It also means that in a certain sense Kohlhaas cannot be held responsible for his actions. He is a flat character without immanent selfness, without any traceable laws of the heart to rely on when judging what to do.13 The story in fact raises the question of the degree of personal responsibility in any action. Instead of finding the cause of evil in Kohlhaas himself, we should therefore look at the figure of Kohlhaas in his social context. The story, just as the Greek tragedy, is a drama of Sittlichkeit rather than of personal ethos. 2.

Juristic Difference There are two ways of reading the story as a drama of Sittlichkeit: one relates the story to the contemporary context, the other discusses how a sense of community is put forth in Kleist’s story. I shall briefly comment on the first way, and then go on to discuss the second. The first surprising thing one notices when reading the story is the degree to which judicial thinking permeates all of society. The law is not just a theme within the story but a fundamental interpretational framework for the story.14 Kohlhaas conceives the meaning of his whole life in legal terms and many, if not all, of the characters around him participate in the discussion of the legal foundation of society.15 The doubleness of Kohlhaas is often seen as reflecting two different positions in the debate in the 18th century between the defenders of natural law and the defenders of positive law.16 Kohlhaas seems to stand between the two conceptions of the law, or rather to incorporate both conceptions in such a way that literary criticism has vacillated between placing him on one side or the other.

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____________________________________________________________ On the one hand, Kohlhaas is a revolutionary who wants to install a new law founded on natural rights, in opposition to the feudal world order and traditional lawgiving. This is how Klaus-Michael Bogdal sees him. Kohlhaas is, says Bogdal, a highly autonomous person who is convinced of his own rights as an individual, as a human being. He defends the “eternal” rights of man, the right to freedom and protection by the state.17 And he is possessed by what is repeatedly called a Rechtgefühl. Bogdal explains it in the following way: Because Kohlhaas possesses the Rechtgefühl, he is always im Recht, also when Unrecht happens or when he himself commits an Unrecht.18 Though this opportunistic handling of right and wrong might form an ethical problem in itself, it is not necessarily seen this way from all angles, since it is this Rechtgefühl that actually makes Kohlhaas capable of questioning a corrupt system. With this Bogdal refers back to Rudolph von Ihrering’s reading (1874), which sees Kohlhaas as a person who inaugurates a new order by individually and tragically insisting on a right that is not turned into law until later. The breaking of the law is necessary in order to create a better law. On the other hand, Theodore Ziolkowski concludes the reverse: Kohlhaas might defend the natural rights of man, but the point of the story is that these rights have no status or right at all if not incorporated in the existing positive law. For Ziolkowski the work of Kleist (from 1799 until his death in 1811) shows a “steady development from natural law Following toward an even firmer relationship to positive law [...]”19 Ziolkowski, one must emphasise that for Kohlhaas the problem is not law in itself but rather the people who violate laws, such as the Junker von Tronka or later the elector of Saxony. In the end, as in many of Kleist’s stories, an affirmation of law takes place. Kohlhaas goes smiling to his death because he knows that order has been restored. Ziolkowski reads Kleist symptomatically, showing that the main character, just as the author, longs for law and order in the chaotic ages in which both of them live.20 Ziolkowski furthermore shows that for legal inspiration Kleist uses Allgemeines Landrecht für die Preussischen Staaten, which was published in 1792.21 All the legal claims of Kohlhaas refer back to this Allgemeines Landrecht, and not to the laws of the period Kleist describes, namely the 16th century. Prussian Law had been inspired by natural law, but in toto it must be seen as a result of the general impulse toward positive codification of the period.22 One can thus see Kohlhaas as a revolutionary, romantic figure who defends the natural rights of man against an inhuman praxis of law, or one can see him as a “conservative” figure who defends the law against its violators. The ethical judgment of Kohlhaas’ taking the law

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____________________________________________________________ into his own hands, his so-called Selbsthilfe, must consider whether Kohlhaas is primarily a revolutionary or a conservative figure. Can the actions of Kohlhaas be justified by the positions of natural or positive law? Whether one chooses one or the other, there is, however, no doubt that Kohlhaas is a figure living in a transitional world where the state of law is somehow placed in doubt or in crisis. This transitional state is important for understanding the many contradictions and ambiguities in the story. The problem of referring the doubleness of Kohlhaas back to two different and ideologically motivated conceptions of the law is that the doubleness very quickly loses its inner tensions in the figure of Kohlhaas and in the story. More important than identifying these ideas is to discuss how such ideas can be represented in a social world: how are they acted out, what role do they play within a community or within society, and what conception of the law can the story allow to come forth? 3.

Performative Law James Boyd White, who is often considered the father of the modern law and literature movement, opposes the normal and deceitful objectivism of law studies. According to Boyd White, one cannot simply read or decode the law. If one wants to understand the law, one has to consider the relationship between the abstract law and the concrete situation in which the law is to act and be used.23 A law cannot be understood outside of the community or society within which it is supposed to work, and the rhetoric of the law has an effect within this community/society.24 If the guilt of Kohlhaas is to be discussed in relation to the question of whether his actions can somehow be justified by certain circumstances, it is necessary to study the ethical “rules” of those circumstances and the conversational and social negotiations of law taking place in connection with each individual action. As John Gearey has pointed out, in “Michael Kohlhaas” it is important to note that the apparent evil actions against Kohlhaas have not been carried out by malice, but rather by moral obtuseness: What was at first merely a practical joke has degenerated into a tangible act of injustice. Degenerated rather than developed, for it was through moral obtuseness rather than direct malice against Kohlhaas that the horses had been mistreated.25 The story continually emphasises that the actual events happen out of sheer coincidence.26 To a certain degree Junker von Tronka is right when

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____________________________________________________________ he later claims that he is innocent, because he never really understands the “malice” that Kohlhaas accuses him of having done. The first time Kohlhaas comes to lay his case before him, the Junker is involved in a merry conversation and must stop in the middle of a laugh to hear Kohlhaas’ case. The story strongly hints that it is because of this merry context that he is unable to hear what Kohlhaas has come to say. The second time Kohlhaas turns up, the Junker is coming home from a hunt together with his fashionable hunting party, and again the story suggests that he brushes Kohlhaas aside because he is mentally occupied elsewhere.27 The injustice is thus not the effect of direct malice. Later on it is stressed that the death of Lisbeth, Kohlhaas’ wife, was not caused by anybody in particular, but is an unhappy consequence of circumstances and misunderstandings. The role of coincidence should not be underestimated in the story. Even without the gipsy, who enters almost as a deus ex machina in the last part of the story, there seems to be a magic logic in the story that it is difficult to account for.28 Kleist reveals to us a world in which injustice simply happens. Somebody happens to do him harm, Lisbeth happens to die. The longing for order that Ziolkowski pinpoints in Kleist must be seen in relation to this radical role of coincidence that no law can prohibit or ban, that no social order can eliminate. On the contrary, any law must acknowledge the “coincidental” circumstances that mark the application of law. Therefore, though it is true, as Ziolkowski tells us, that the story ends by affirming positive law, it also raises some very fundamental questions about the foundation and range of this positive law — questions that keep buzzing in our heads long after we have finished reading the suspiciously neat ending. It is in fact only at the most superficial level that the balance of justice is in balance in the end. The real puzzle is why Ziolkowski does not question this ending. It is only if we read the ending literally that positive law is affirmed in any positive way. But if we see the ending as affirming positive law we are also forced to agree with Kohlhaas that law must be taken au pied de la lettre. This means that if a horse is taken from a man and gets hurt, it should be given back to the man and restored to its former state. As mentioned earlier, Kohlhaas is willing to accept neither economic compensation nor another horse. This rigoristic and literal conception of the law is against any modern understanding, and I believe it also contradicts what Ziolkowski otherwise aims at: understanding why a concept like equity is necessary within a legal context, a concept that problematicises the image of perfect balance.29 My conclusion would be different. I believe that the story of Kohlhaas does not show us what happens when some few unhappy or

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____________________________________________________________ malicious creatures violate the law. Rather it shows us the shortcomings of any written law. It reveals to us the living community with all its antagonistic relationships, envies, and minor conflicts that in the end can result in major problems and tragedies. One of the interesting things in Kohlhaas’ story is that Kohlhaas’ actions actually mirror Junker von Tronka’s. Both Junker von Tronka’s and Kohlhaas’ actions are apparently evil, but upon closer inspection they are not what they seem. Their “evilness” consists in obtuseness, pride, stubbornness, self-righteousness, and sometimes even just carelessness. Thus the cause of evilness cannot be located in one immanent source, and one cannot differentiate between Kohlhaas and the Junker by referring to such an immanent cause. Kohlhaas does evil things despite his fairness. Von Tronka does not treat Kohlhaas badly because he is a brutal ruler, but because he is a thoughtless, careless man. The people sympathise with Kohlhaas and call his cause just because they don’t like the rule of von Tronka; but as the story also explains, at some point Kohlhaas loses the support of the people, not so much — as one would have imagined — because of his burning down of cities but because of another incident for which Kohlhaas is not actually responsible. This incident happens at the marketplace in Dresden when the treasurer, Mr. Kunz, is trying to buy back the two now completely worthless horses from a horse dealer and butcher — to the great amusement of the crowd surrounding them. Suddenly, a riot flares up, and the treasurer is ridiculed and hurt. After this the narrator tells us that this incident greatly hurt the cause of Kohlhaas: This incident, little as the horse-dealer was in fact to blame for it, nevertheless aroused throughout the land, even among the more moderate and well-disposed, a feeling that was highly prejudicial to the successful outcome of his case. The relationship now existing between him and the state seemed quite intolerable, and both privately and publicly people began to say that it would be better to do h im an open wrong and dismiss the whole lawsuit again than to grant him justice in usch a trivial affair, justice which he had extorted by violence, merely to satisfy his mad obstinacy.30 Though Kolhaas is not even present at this little event at the marketplace, it makes people hate him and even want to do injustice to him. The story thus explicitly shows us that there is no direct relation between cause and effect when it comes to human judgments. This is significant because it tells us a radical story about the genesis of evil. Evilness cannot be

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____________________________________________________________ defined as the actions of an evil character. The doubleness of Kohlhaas’ character does not explain his evilness; it is rather the other way round: the happenings around Kohlhaas make a duality appear in him. On the other hand, one must also say that evilness is not the consequence of having the wrong idea about justice or the wrong idea about the legal system. Kohlhaas’ protest against the system is not “positive” in the sense that he would be able to argue in favour of a better legal system. He is simply reacting to what he experiences as unjust treatment. As it turns out, this injustice is not plain objective reality. Though the reader would probably agree that Kohlhaas is maltreated, the Junker does not see it that way, just as it is only seen from the perspective of Kohlhaas that his own later actions are good. Understanding the full implications of this point means acknowledging that evilness cannot be located in specific repressive and unjust rules of society, nor in the individual response to such a society; rather it arises in an interpretational process somewhere between the individual and society. Evilness is what emerges when a whole set of concurring factors that in themselves seem insignificant, or even good, work together in an unhappy way to produce it. All the time Kleist lets us know that the coincidental happenings play a decisive role in the plot. This does not mean that one should avoid reflecting on the meaning of true justice and the creation of a legal system or society, but it means that any “evil” action is always something different from what it appears to be. In “Michael Kohlhaas” the bad action turns out to be not only the unavoidable companion of the good action: Kohlhaas becomes a murderer because he is a good man. It is also unavoidably inherent in that action. Good intentions are hardly ever enough to avoid evilness for the simple reason that evilness is hardly ever the product of bad intentions. To take “evilness” seriously means looking at both the social and the performative conditions for its development. Evilness is never simply out there to be pointed at in one person or in one action, it is always also here, germinating in our slightest doings and remarks. Therefore, one should have a closer look at the concrete circumstances of evilness and investigate the specific role of coincidence in the process of creating it. 4.

The Role of Coincidence As suggested at the beginning of this article, the curious, abrupt style of Kleist, his long, twisted sentences, suppressed narrator, and “poor” connections between the different scenes in the story, can be regarded as a symptom of the collapse of idealism.31 Still, it is important to see that the episodic composition not only destroys the coherence of the story, but also generates meaning and connections. Not because the individual scenes refer back to some kind of hidden interpretational

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____________________________________________________________ framework, but because the juxtaposition of scenes creates a tension that has a direct effect on the actions and dialogues of the protagonists. Hans Peter Hermann has described this in a very precise way: Unvermutet befinden sich diese Menschen in einer “Situation”: ein unerwartetes Ereignis tritt in ihr Leben, zufällig “traf es sich“ so – nun bedingt es ihr Handeln und gestaltet ihr Schicksal. [...] dass sie überhaupt einen “Beschluss” fassen folgt nicht aus ihrem seelischen Zustand, sondern wird vom zufällig einfallenden Feiertag bewirkt. Ein Zufall hat Gewalt über ihren Willen erhalten.32 (Unknowingly, these people find themselves in a “situation”: an unexpected occurrence happens in their life; incidentally, “it so happened” – now it determines their actions and forms their destiny. [...] their ability to make a decision does not follow from the state of their soul, rather it follows from the fact that, incidentally, it was a day out of the ordinary. A coincidence has seized control over their will [my translation].) The “situation” is not an event within an otherwise normal narration; the narration has been turned into a series of juxtaposed situations that are interrelated in complex ways. Instead of talking about development in the story of Kleist, it would therefore be more precise to talk about acceleration or intensification. The unpredictability of the occurrences prevents any meaningful development from occurring. This is one of the reasons why one cannot say that the end of the story solves the problem. We cannot conclude that justice was achieved, nor that justice was not achieved. Coincidence sets the law. This means that the only unity of the narrative to be found is in the interaction between individuals and the world. The question is whether this unpredictability means that the world is essentially chaotic. Hans Peter Hermann denies this: Es ist also nicht so, dass Kleists Welt durchweg chaotisch wäre; sie enthält auch Ordnungselemente, Bereiche gesicherten Seins, von denen der Mensch umfangen werden kann, – solange, bis der Zufall einbricht und Übermacht gewinnt. Wäre es grundsätzlich anders – [...] so könnte kaum in diesem Sinne von “Zufall” gesprochen werden. Vom Zufall ist es allerdings afbhängig, ob die Ordnung den Menschen erreicht oder ob er nur in der Hoffnung leben muss, dass es sie allen Anzeichen entgegen doch gibt.33

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____________________________________________________________ (Thus, the world of Kleist is not totally chaotic; it has orderly elements, areas of safe existence that the individual can be embraced by – until the coincidence breaks into it and seizes control. Were it in any essential way otherwise – [...] you would hardly be able to speak about “coincidence.” “Coincidence” is dependent on whether the individual finds an order or he just has to live in the hope that order exists, despite all the indications of the opposite. [my translation]). Hermann is right, but still one has to ask the crucial question: If it is logically necessary to have an order, where can we locate this order within “Michael Kohlhaas” and what is the status of this order? It is true that Kohlhaas is seen as an outsider, whose right to rebellion and to create “chaos” is defended (by himself) on the grounds that he is an outcast. In this sense chaos is an exception that breaks the rule, something that comes from the outside and threatens to break the inner order. It is also true, as Ziolkowski asserts, that in all of his stories Kleist longs for an order and always ends up re-establishing positive law. Still, in “Michael Kohlhaas” the order never has an unquestionable status. Though it is true that Kohlhaas comes to be seen as an outcast, he originates from the inner circles of the order, as the first paragraph in the story convinces us: Four lines into the story we read the following about Kohlhaas: “Until his thirtieth year this extraordinary man could have been considered a paragon of civil virtues [das Muster eines guten Staatsbürgeres]” to the extent that there is not one neighbour who is not “indebted to his generosity or his fair-mindedness.” Thus the destruction of order does not come from the outside of the community, but from the inside. This is also true of the rest of the story. The representatives of order on all levels, from the officious politicians to the corrupt officials, from the nepotistic nobility and the institutionalised, crippled church to the faithless people who turn into a mob: no order can be found that is not already deconstructed by its own seamy side. Kohlhaas is only able to succeed in his rebellion because the state is already in deep discredit. In that sense, the “chaos” of coincidence does not come as a disease from the outside to infect the peaceful order. Rather, chaos is already inherent in the order. Coincidence, then, is only the visual sign of an order that is secretly coming to pieces. This reading of coincidence gives it a strong role within the anti-idealistic project. However, as I’ve already pointed out, coincidence also functions in a reverse way, that is, it installs a new order. This new order goes beyond the dichotomy of order and chaos (destruction of order). This order is to be found in the magical connections made in the story that give the otherwise realistic tale a kind of fairy-tale character. Though Kleist bases his story on a real person’s life, namely, the life of Hans Kohlhaase

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____________________________________________________________ and a real lawsuit against this man in the sixteenth century, there are far too many unlikely occurrences for the story to be realist in the strict sense of the word. Or to put it differently: Kleist’s kind of realism shed some new light on how to conceive of realism, and in a deeper sense, how to present the world. Apart from the many unlikely coincidences, there is especially one incident that it is difficult to account for within a realistic world, and that is the gypsy episode, which Kleist did not find in the legal documents about Hans Kohlhaase but added himself. The gypsy serves as a kind of secret, prophetic helper for Kohlhaas because it is actually she who prophesies the final destruction of Kohlhaas’ enemy and helps him to enact it. Relatively early, the gypsy, who bears a highly unlikely resemblance to Kohlhaas’ dead wife, appears in a market place where she prophesies the bad fortune of the Elector of Saxony. After the prophecy she writes the details of the bad fortune down on a piece of paper and gives it to a person among the audience in the market place, a person who happens to be Kohlhaas. Though the Elector tries to get hold of the paper in every way, Kohlhaas never gives him the paper. Standing at the scaffold, he takes the paper out, reads it, and then, while looking at the Elector, eats it. Neither the elector, who is “shattered in body and soul,” nor the reader gets to know what the piece of paper tells about the future. In his very convincing reading of this passage, J. Hillis Miller concludes that through this episode the reader is informed that it is Kohlhaas who is “the bearer of history.” But the episode is profoundly ironic in the sense that he carries the secrets of the future with him to the grave: “The separation of his head, which knows the secret future, from the body, which incarnates the script on which the future is written, expresses with savage irony the separation between doing and knowing.”34 The truth is thus withheld, and according to Miller, the episode “signals the transformation of history into literature.”35 That is, the realism of history is not undermined by the literary effect but transformed into literature by it. In a wider interpretation this must mean that history when inspected closely is really a series of unpredictable stories. The function of coincidence in “Michael Kohlhaas” is thus not so much to form a critique of idealism as it is to transform the concept of realism. Coincidence points to the contingent and performative aspects of reality. Therefore, though the story of the gypsy is permeated by coincidence, its place in the story is no coincidence or happenstance in itself. The magical story alongside legal documents and matter of fact chronicle changes the status of both. There is necessarily a tension and interaction between the two sides.36

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____________________________________________________________ In this interaction evilness never appears as the result of one substantial cause. Though the suffering is unquestionably real for the person who suffers — just as it is for Kohlhaas when they “steal” his two good horses and just as a number of people undoubtedly suffer when Kohlhaas burns down their houses — there is no reality, no idea, and no story that can place evilness in one immanent source. In this sense, the fight against evilness is a quixotic fight against giants: it is an enormously difficult task, and just as difficult as it was for Don Quixote to see that the giants were only windmills, just as hard is it for us to see that radical evilness often only consists of a complex carelessness, false idealism, and good intentions led astray.

1

Notes

Leopardi is quoted in Fischer, 1973, 461. The quotation is my translation. Fischer provides good insight into the various ways of reading Kleist. 2 Wiese, 1973, 190. 3 Wiese, 212. 4 Here quoted from Ziolkowski, 1977, 197. In German it reads: Ach, Wilhelmine, ich hörte letzthin in dem Naturrechte die Frage aufverfen, ob die Verträge der Liebenden gelten können, weil sie in der Leidenschaft geschehen – und was soll ich von einer Wissenschaft halten, die sich den Kopf darüber zerbricht ob es ein Eigentum in der Welt gibt, und die mir daher nur zweifeln lehren würde, ob ich Sie auch wohl jemals mit Recht die Meine nennen darf? Nein, nein, Wilhelmine, nicht die Rechte will ich studieren, nicht die schwankenden ungewissen, zweideutigen Rechte der Vernunft will ich studieren, an die Rechte meines Herzens will ich mich halten, und ausüben will ich sie, was auch alle Systeme der Philosophie dagegen einwenden mögen. In Kleist, 2001 (1984), 503-504. The English translations are from Heinrich von Kleist, The Marquise of O – and Other Stories, transl. David Luke and Nigel Reeves, London/NewYork: Penguin Classics, 1978. 5 Ziolkowski, 1977, 197. 6 Ziolkowski, 1977, 683. 7 Wiese, 1973, 191. Though Benno von Wiese is mainly speaking about drama, his characterization describes the poetics and situation of writers of the period in general.

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Kleist, 2001. Kleist, 2001. 10 Miller, 1995, 87. 11 Ellis, 1979, 70. Ellis sees the tragedy of the story in the fact that a grand character is confronted with a foolish, disorganised world, and implies that in another context Kohlhaas could have been a true hero. 12 Hegel, 1970, vol. 15, 546. The lecture was held in the beginning of the 1820s. 13 Even in his relationship with his beloved wife, Lisbeth, there is no trace of “laws of the heart.” Kohlhaas does not listen to his wife’s wish that he should give up his lawsuit. When she is dying of the wound she has received trying in vain to help Kohlhaas, she can hardly breathe or speak, but she points to a paragraph in the Bible where it says: “Forgive your enemies; do good also unto them that hate you.” She then dies, gazing at Kohlhaas “with deep emotion” (“mit einem überaus seelenvollen Blick”) but Kohlhaas’ only reflection is as follows: “May God never forgive me as I forgive the Junker“ (137) (“so möge mir Gott nie vergeben, wie Ich dem Junker vergebe!” (30)). He gives his wife a funeral worthy of a princess, but again, the social meaning – that is, that a Bürger can publicly show his sorrow just as much as the nobility – seems more important than his personal pain, of which we hear nothing. 14 There are at least two other competing interpretational frameworks. One is religious and is represented mainly by Kohlhaas’ wife and by Luther, who surprisingly turns up to stop the violence of Kohlhaas. The other is socio-economic. For an interesting article on the last, and least recognized, aspect, see Harms, 2000. 15 The focus on legal problems and legal vocabulary is present in all of Kleist’s work and Kleist is perhaps more radical than other writers of his time in this respect, but he reflects the general impulse of the era. The late 18th century and the beginning of 19th century constitute a period with large debates over different legal conceptions. For a good description of the contemporary juristic culture, see Ziolkowski, 1977 and 1990. 16 As Theodore Ziolkowski remarks, there is of course no natural law: it will always be an ideological construct to defend one positive law instead of another (1977, 191-192). 17 Bogdal, 1981, 38. Bogdal discusses the reading of Rudolph von Ihrering (in Der Kampf ums Recht. Darmstadt, 1963, (1874)). For Ihering, Kohlhaas inaugurates a new order by individually and tragically insisting on a right that is not turned into law until later. Bogdal discusses this romantic conception of Kohlhaas, objecting that Kohlhaas also is a man of compromises who negotiates with the system of for instance Luther, and the sovereign, in order to establish a rational order. Kohlhaas might in this sense be more inspired by Hobbes than Rousseau: 9

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____________________________________________________________ Die Juristifizierung menschlichen Lebens soll gerade den naturwidrigen Kampf ums Recht ablösen und durch eine rationale Ordnung ersetzen. Im ’Michael Kohlhaas’ wird dies an mehreren Stellen deutlich: durch die Versuche von Kohlhaas, den Streit durch Gerichte regeln zu lassen, durch den Kompromiss nach dem Treffen mit Luther und durch den Schluss. 18 Bogdal writes: Im “Michael Kohlhaas” sind naturrechtliche Vorstellungen auf doppelte Weise vertreten. Zum einen haben wir die Autonomie der Kohlhaas-Figur. Sie ist in der Lebensweise von Kohlhaas begründet. Er handelt menschlich, d.h. vernunftgeleitet und sozial-fühlend in Alltagssituationen und er beweist menschliche Grösse im Leiden und in der Leidenschaft. Zum zweiten weist das “Rechtgefühl” als handlungsleitendes Merkmal der Kohlhaas-Figur auf das ideologische Zentrum naturrechtlichen Menschenbildes: die natürlichen Rechte des Menschen. “Ich bin ein Mensch und als Mensch weiss ich, dass mein Wert mir nicht von aussen zukommt, dass ich ihn nur in mir selbst, in meinem eigenen Wesen finde.” (Quotation from Groethuysen, Philosophie der Französischen Revolution, 16). Bogdal comments on this: “’Rechtgefühl’ ist hier in der Naturrechtslehre wie im ‘Michael Kohlhaas’ Bewusstsein und Gewissheit menschlicher Würde in einem umfassenden gesellschaftlichen Sinn, ein ’vortreffliches Gefühl’ [...].” See Bogdal, 1981, 37. 19 Ziolkowski, 1977, 201. As formerly mentioned, “Michael Kohlhaas” is from 1810. 20 The parallel between the 19th century and the 16th century is obvious and the differences are toned down in Kleist’s story. To understand the full range of legal thinking one should go deeper into some of the differences that also influence the story. 21 This law did not take effect until 1794. 22 Ziolkowski, 1977, 18. Ziolkowski describes the general development of codification from Friedrich Wilhelm I (1714) to Allgemeines Landrecht für die Preussischen Staaten (1792/1794) and Code civile (1804). 23 White, 1985. 24 James Boyd White uses the word “community” in order to underline the human, rhetorical, and interpretational aspects of the world in which law is to work. See White, 1985. In Kleist, however, the community is identical with society with all its layers of classes and power structures. I will use both terms in order to relate the performative aspect of the law to the

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____________________________________________________________ objective conditions for the practice of the law. For a reading that underlines the performative aspects of the story, see Miller, 1995. Miller suggests that instead of investigating the law in the story, one should consider the story as a lawmaker in itself. The story establishes its own rules for what can be said and done in its world. In a certain way, rather than reflecting the law, the story inaugurates and establishes it. 25 Gearey, 1968, 104. 26 Everywhere in the story expressions like “It so happened that...” and “Incidentally…” are abundant. Many very unlikely things happen ¾ for instance, the extremely unlikely meeting between the Count Kallheim and Kohlhaas in the countryside, which is decisive for the development of the story. It is also stated that, coincidentally, the strife between Poland and Sachsen becomes decisive for the plot, since Poland wishes to form an alliance with Brandenburg, and this is the reason why the Arch-Chancellor of Brandenburg hopes to save Kohlhaas. There is a long series of examples. 27 When Kohlhaas comes to burn down the castle for the third time, the Junker is again in the middle of a merry context. He is reading the Kohlhaas’ letter out loud, and everybody is laughing at the letter. This laughter at the expense of Kohlhaas seems to justify him burning down the castle, but it is an open question whether this in itself signifies anything evil. The laughter might simply signify their surprise at the violent threats of Kohlhaas. 28 The appearance of the gypsy can be interpreted either as a divine intervention in the story, an intervention of fate, or simply as the intervention of a sly old woman who for unknown reasons sympathizes with Kohlhaas, maybe because of his rebellious actions against authorities that are also hard on gypsies. For our purposes, the magic should be seen as part of reality itself, only a part of reality that is difficult to understand. Unexpected appearances will seem more magical to a person like Kohlhaas (and maybe also Kleist) who sees order as the natural state of the world. Of course, some of the magic can also be explained by narrative conventions and the fact that minor stories and sidetracks are allowed to interfere with the main plot. 29 Ziolkowski’s book traces the origins of the word “equity” back to Aristotle’s concept of epieikeia, to the Latin aequitas, and the Christian concept of mercy. 30 The Marquise von O and Other Stories. 1978, 171. In German it reads: Dieser Vorfall, so wenig der Rosshändler ihn in der tat verschuldet hatte, erweckte gleichvoll, auch bei den Gemässigtern und Besseren, eine, dem Ausgang seiner Streitsache höchst gefährliche Stimmung im Lande. Man

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____________________________________________________________ fand das Verhältnis desselben zum Staat ganz unerträglich, und in Privathäusern und auf öffentlichen Plätzen, erhob sich die Meinung, dass es besser sei, ein offenbares Unrecht an ihm zu verüben, und die ganze Sache von neuem niederzuschlagen, als ihm Gerechtigkeit, durch Gewalttaten ertrotzt, in einer so nichtigen Sache, zur blossen Befriedigung seines rasenden Starrsinns, zukommen zu lassen. In Kleist, 1970, vol. 2, 63-64. 31 For a thorough description of the narrator in Kleist, see Kayser, 1973, 230ff. The connection between idealism and coherent narration is also made by Georg Lukács, 1971/1920. According to Lukács, the novel is the epopee for an era whose extension cannot be perceived through the senses, an era in which the immanent meaning of life has turned into a problem that cannot be solved but that still insists on some kind of totality, that is, some kind of fragile narrative coherence. This way of seeing the modern novel is deeply rooted in the problems connected with the continued influence of the idealism of G.W.F. Hegel. 32 Herrmann, 1973, 368. 33 Herrmann, 395. 34 Miller, 103. 35 Miller,102. 36 It would therefore be wrong to read the story of the gypsy as the intervention of God or destiny. Though the prophecy of the gypsy comes true, its status in the story does not point to a belief in a heavenly order.

References Bogdal, K.M. (1981), Heinrich von Kleist: ‘Michael Kohlhaas’ . München: Wilhelm Fink Verlag. Ellis, J.M. (1979), Heinrich von Kleist. Studies in the character and meaning of his writings. Chapel Hill: The University of North Carolina Press. Fischer, E. (1973), ‘Heinrich von Kleist’, in: Walter Müller-Seidel (ed.), Heinrich von Kleist. Aufsätze und essays. Darmstadt: Wissenschaftliche Buchgesellschaft. Gearey, J. (1968), Heinrich von Kleist. A study in tragedy and anxiety. Philadelphia: University of Pennsylvania Press. Harms, I. (2000), ‘Tod und Profit im “Michael Kohlhaas”’, in: T. Mehigan (ed.) Heinrich von Kleist und die aufklärung. New York/Suffolk: Camden House. 226-38.

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____________________________________________________________ Hegel, G.W.F. (1970), Werke in zwanzig bänden, 15: Vorlesungen über die Ästhetik. Frankfurt am Main: Suhrkamp. Herrmann, H.P. (1973), ‘Zufall und ich’ in: Walter Müller-Seidel, (ed.) op.cit. 367-411. Kayser, W. (1973), ‘Kleist als erzähler’, in: Walter Müller-Seidel, (ed.) op.cit. 230-43. Kleist, H. (2001 (1984)), Sämtliche werke und briefe, vol. 2, H. Sembdner (ed.) München: Deutscher Taschenbuch Verlag. ── (1993), Sämtliche werke und briefe, vol. 2. Carl Hanser Verlag. ── (1978), The marquise of O – and other stories, D. Luke and N. Reeves (trans.) London/NewYork: Penguin. Lukács, G. (1971/1920), Die theorie des romans. Luchterhand. Miller, J.H. (1995), ‘Laying down the law in literature: Kleist’, in: Topographies. Stanford: Stanford University Press. 80-104. White, J.B. (1985), Heracles' bow. Essays on the rhetoric and poetics of the law. London/Madison: University of Wisconsin Press. Wiese, B. von (1973), ‘Der tragiker Heinrich von Kleist und sein jahrhundert’ in: Müller-Seidel, op.cit. Ziolkowski, T. (1977), The mirror of justice. Literary reflections of legal crises. Princeton, N. J.: Princeton University Press. ── (1990), German romanticism and its institutions. Princeton: Princeton University Press.

Notes on Contributors Margaret Sönser Breen is Associate Professor of English at the University of Connecticut, where she specialises in the British novel and Gender Studies. Peter Day specialises in Early Church and Patristic Theology, with an emphasis on the work of Origen of Alexandria. His recent focus has been on universal salvation within Christianity and their influence on Theodicy. He has worked as a part-time lecturer in philosophy at Westminster College in Oxford, has been co-director of an education conference company, co-organiser of an international series of conferences on “evil,” and set up “The Marian Shrines Project,” which aims to produce a comprehensive historical guide to Shrines of “Our Lady” in England and Wales. Robert N Fisher is the founder of Learning Solutions (http://www.learning-solutions.org) and Inter-Disciplinary.Net (http://www.inter-disciplinary.net). Both bodies are dedicated to encouraging and developing cutting-edge inter- and multi-disciplinary research projects. He is also the Series Editor for the “At the Interface project/Probing the Boundaries” project, which includes this volume. Former head of Theology and Principal Lecturer in Philosophy, Theology, and Theodicy at Westminster College, Oxford, he is also founder of the Global Association for the Study of Persons, a member of the Steering Committee for the International Forum on Persons, and on the advisory board for Essays in Philosophy, and the Commutarian Forum. Finally, he has published two books, Becoming Persons, and Persons, Suffering, and Death. Neil Forsyth is Professor of English and Comparative Literature at the University of Lausanne, Switzerland. He is the author of The Old Enemy: Satan and the Combat Myth (1990), The Satanic Epic (2002), and a new book on Milton. He has also written on other literary topics, from Gilgamesh to D. H. Lawrence, including several essays on Shakespeare films. John A. Humbach is Professor of Law at Pace University School of Law in White Plains, New York. Scott Lowe is Professor of Philosophy at Bloomsburg University in Pennsylvania.

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Maria Michela Marzano is a Chargie de Recherche in Philosophy at the Centre National de la Recherche Scientifique in Paris. Jean Murley is a Ph.D. candidate in English at the City University of New York Graduate School. She is currently writing her dissertation on contemporary American murder narratives. Ramzi Nasser is a trial attorney with the Federal Defenders of San Diego, California. John T. Parry teaches civil rights litigation, constitutional law, and criminal law at the University of Pittsburgh School of Law in Pennsylvania. His primary research interest is the relationship between individual rights and the legal structure for the exercise of state power. Theodore Seto is Professor at Loyola Law School of Los Angeles, California, where he teaches tax, property, and criminal law. His research interests are diverse, but currently focus primarily on moral theory. Karen-Margrethe Simonsen is Associate Professor of Comparative Literature at the University of Aarhus, Denmark. Together with Marianne Ping Huang and Mads Rosendahl Thomsen, she has edited Reinventions of the Novel. History and Aesthetics of a Protean Genre (2002). Bill Wringe is an instructor of Philosophy in the Department of International Relations at Bilkent University, Ankara, Turkey.