Comments Elsewhere

Micha,

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

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