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Torture and the Balance of Evils

Published online by Cambridge University Press:  16 February 2016

Michael S. Moore
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This article explores the questions raised by the issuance of the Landau Commission Report: What is the legal and moral status of torture of terrorist suspects and others, when that torture is engaged in by the Investigation Unit of the General Security Service (GSS) of the State of Israel for the purpose of extracting information potentially saving many Israeli lives? More specifically, was the Commission right in its retrospective conclusion that “the methods of interrogation … employed [in the past by the GSS] … are largely to be defended, both morally and legally …” (R., 4)? Was the Commission right in its prospective conclusion that no new legislation is needed to deal with the methods of interrogation of the GSS because “the GSS can turn a new leaf … within the framework of the existing law …” (R., 82)?

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Israel Law Review , Volume 23 , Issue 2-3: Symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity , Spring–Summer 1989 , pp. 280 - 344
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1989

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References

** Nissenson, , “The Crazy Old Man”, in The Elephant and My Jewish Problem (1988) 146.Google Scholar

1 On the defense of necessity generally, see Katz, L., Bad Acts and Guilty Minds (1987) 8–81CrossRefGoogle Scholar, Fletcher, G., Rethinking Criminal Law (Boston, 1978) 774–98Google Scholar, Williams, G., Criminal Law. The General Part (London, 2nd ed., 1961) 722–46Google Scholar, Dressler, J., Understanding Criminal Law (1987) 249–57Google Scholar, Garland, Arnoldsand, “The Defense of Necessity in Criminal Law. The Right to Choose the Lesser Evil”, (1974) 65 J of Crim Law and Criminology 289Google Scholar, Glazebrook, , “The Necessity Plea in English Criminal Law”, (1972) 30 Camb. L.J. 87CrossRefGoogle Scholar, Tiffany, and Anderson, , “Legislating the Necessity Defense in Criminal Law”, (1975) 52 Denver L.J. 839Google Scholar, Comment, “Necessity Defined A New Plea in the Criminal Defense System”, (1981) 29 U.C.L.A.L.R. 409.

2 Penal Law, 1977 (L.S.I. Special Volume), sec 22.

3 Ibid., sec 277.

4 That arguments of necessity enter a criminal trial only as matters of defense is not as obvious as it may seem. Both the actus reus and mens rea elements of the prosecution's prima facie case may have hidden necessity-like requirements in them. In construing what acts are prohibited by a criminal statute, courts will often go against the plain meaning of statutory language in order to exempt desirable violations of the statute Sse, e.g., Kirby v. United States, 74 U.S. (7 Wall.) 482 (1868) (literal obstructing of the federal mails held not to be an “obstructing” within the meaning of the statute when done to effect the arrest of a federal mail carrier wanted for murder); see generally Moore, , “The Semantics of Judging”, (1981) 54 S. Cal. L.R. 151Google Scholar; G. Williams, supra n. 1, at 724–28. Likewise, in considering what mental states suffice for the mens rea requirements of recklessness or negligence, courts consider only risk-takings that are unjustified. See, e.g., Model Penal Code, sec 2.02(2)(c) and (d).

5 See G. Fletcher, supra n. 1, at 759, 762, 799–800, 810–11; J. Dressler, supra n. 1, at 179; Greenawalt, , “The Perplexing Borders of Justification and Excuses”, (1985) 84 Colum. L.R. 1897Google Scholar; Moore, , “Causation and the Excuses”, (1985) 73 Calif. L.R. 1091.CrossRefGoogle Scholar

6 Self-defense may sometimes be used as an excuse, not a justification. See infra, text at nn. 89–91.

7 Model Penal Code, sec. 3.02 (Proposed Official Draft, 1962).

8 The failure of the Israeli Code to distinguish justification from excuse in its necessity provision could be due to the consensus of influential criminal law theorists in Israel that no legal consequences should attach to the distinction (that is, that a defendant and those who aid or resist him are equally liable or exempt from punishment no matter whether the defendant claims necessity as a justification or necessity as an excuse). See Gur-Arye, , “Should the Criminal Law Distinguish Between Necessity as a Justification and Necessity as an Excuse?” (1986) 102 Law Quarterly Review 71Google Scholar; Kremnitzer, , “Proportionality and the Psychotic Aggressor: Another View”, (1983) 18 Is.L. R. 178Google Scholar, at 196–99. One can believe this and yet believe that it is crucial to recognize the distinction when one analyzes provisions such as sec. 22, for the criminal law mirrors morality here and in morality the distinction is basic.

9 Austin, , “A Plea for Excuses”, (1956) 57 Proc. Arist. Soc'y 1.Google Scholar

10 See J. Dressler, supra n. 1, at 251–53. It is this feature of the law of necessity that rules out any argument by terrorists that prevention of their future acts of terror is not a good consequence that may justify GSS torture. Terrorists may sincerely believe that their killing of innocent civilians is not wrong but right because it produces more good in the long run. They are just as incorrect in that belief as would be a GSS interrogator who believes that torturing an innocent child can be justified by the good consequences in the long run. The defense of necessity protects in neither case such moral error.

11 See Moore, M., Law and Psychiatry (1984) 83–84.Google Scholar

12 See supra n. 4

13 Foot, , “The Problem of Abortion and the Doctrine of Double Effect”, (1967) 5 Oxford Review 15Google Scholar, reprinted in Foot, P., Virtues and Vices (1981) 19Google Scholar, Kadish, , “Respect for Life and Regard for Rights in the Criminal Law”, (1976) 64 Calif. L.R. 871CrossRefGoogle Scholar, reprinted in Kadish, S., Blame and Punishment (1987) 109Google Scholar, Harris, , “The Survival Lottery”, (1975) 50 Philosophy 81CrossRefGoogle ScholarPubMed, Thomson, “Killing, Letting Die, and the Trolley Problem”, (1976) Monist, reprinted in Thomson, J., Rights, Restitution and Risk (1986) 78Google Scholar, Thomson, , “The Trolley Problem”, (1985) 94 Yale L.J.CrossRefGoogle Scholar, reprinted in Thomson, J., Rights Restitution, and Risk (1986) 94Google Scholar, L. Katz, supra n. 1, at 35 [subsequent references to these articles are to the reprinted versions].

14 St. G.B., sec. 34.

15 G. Fletcher, supra n. 1, at 788.

16 The utilitarian and consequentialist flavor of the reasoning behind sec. 3.02 of the Model Penal Code is accurately reflected in a student Note, “Justification: The Impact of the Model Penal Code on Statutory Reform”, (1975) 75 Colum. L. R. 914, at 921–28. See also Greenawalt, , “Violence – Legal Justification and Moral Appraisal”, (1983) 32 Emory L.J. 437Google Scholar, at 465.

17 S. Kadish, supra n. 13, at 123. Compare the seemingly contrary assumption of G: Fletcher, supra n. 1, at 787–88, G. Williams, supra n. 1, at 729, and Greenawalt, supra n. 16.

18 L. Katz, supra n. 1.

19 Ibid., at 35.

20 The general form of the argument in the text is pursued with great clarity by Scheffler, S., The Rejection of Consequenualism (1982) 87–93Google Scholar, 98–101.

21 For this characterization of act-consequentialism, see Bernard Williams' contribution to Smart, J. & Williams, B., Utilitarianism: For and Against (1973) 86.CrossRefGoogle Scholar

22 Scheffler, , “Introduction”, in Consequentialism audits Critics (Scheffler, S. ed., 1988) 1, at 3.Google Scholar

23 On long term consequential calculations of this kind, see J. Smart & B. Williams, supra n. 21, at 100–07.

24 See L. Katz, supra n. 1, at 35 For more general defenses of non-utilitarian consequentialisms, see Scanlon, , “Rights, Goals, and Fairness”, in Public and Private Morality (Hampshire, S. ed., 1978)Google Scholar, reprinted in Consequentialism and Its Critics op cit supra n. 22, at 74–92, and Sen, , “Rights and Agency”, (1982) 11 Phil and Pub Aff 3Google Scholar, reprinted in Consequentialism and Its Critics op. cit. supra n. 22, at 187–223.

25 See S. Scheffler, supra n. 20, at 109, T. Nagel, The View from Nowhere (1986) 178.

26 One might also reject act-consequentiahsm on the strictly consequentialist ground that if followed as a guide to moral decisions by individual agents it would not in fact produce the best consequences. See Regan, D., Utilitarianism and Cooperation (1980) 12–53.CrossRefGoogle Scholar

27 See, e.g., J. Smart & B. Williams, supra n. 21, at 118–35.

28 Barnes, , “Utilitarianisms”, (1971) 82 Ethics 57.CrossRefGoogle Scholar On the different varieties of rule-consequentialism, and problems with each, see Brandt, , “Toward a Credible Form of Utilitarianism”, in Moral Rules and Particular Circumstances (Brody, B. ed., 1970) 145Google Scholar, Lyons, , “Utility and Rights”, in Theories of Rights (Waldron, J. ed., 1984) 110Google Scholar, Scanion, “Rights, Goals, and Fairness”, in Consequentialism and Its Critics op. cit. supra n. 22, at 74.

29 Kant, I., Groundwork of the Metaphysic of Morals (Paton, H. trans., 1964).Google Scholar As Tom Nagel captures this Kantian insight: “No doubt it is a good thing for people to have a deep inhibition against torturing children even for very strong reasons, and the same might be said of the other deontological constraints. But that does not explain why we find it almost impossible to regard it as a merely useful inhibition”. T. Nagel, supra n. 25, at 179.

30 Smart, in J. Smart & B. Williams, supra n. 21, at 44. For the same criticism, see Railton, , “Alienation, Consequentialism, and the Demands of Morality”, (1985) 13Google Scholar Phil, and Pub. Aff. 134, reprinted in Consequentialism and Its Critics, op. cit. supra n. 22, at 118.

31 Smart's willingness to embrace consequentialism even at the cost of giving up common sense morality's constraints, like “never harm an innocent man”, has earned Smart the following entry in The Philosophical Lexicon (Dennett, D. and Lambert, K. eds., 7th ed. 1978) 8Google Scholar: “Outsmart, verb; to embrace the conclusion of one's opponent's reductio ad absurdum argument. (As in) They thought they had me, but I outsmarted them. I agreed that it was sometimes just to hang an innocent man”.

32 Williams, in J. Smart & B. Williams, supra n. 21, at 90.

33 Nagel, “War and Massacre”, (1972) 2 Phil, and Pub. Aff., reprinted in Consequentialism and Its Critics, op. cit. supra n. 22, at 57.

34 P. Foot, supra n. 13, at 26. George Fletcher has recently urged that the Talmudic example of keeping water for oneself when there is only enough for one presupposes adherence to an acting/allowing distinction, for self-love could hardly justify taking the water from another (which would be a killing, not an allowing to die). Fletcher, “Defensive Force as an Act of Rescue”, forthcoming, Philosophy and Social Policy (1990).

35 Foot, supra n. 13, at 27.

36 Ibid., at 28.

37 Ibid., at 29. Sometimes Foot believes we may justify the violation of a negative duty by good consequences. She construes her famous trolley example to be of that kind, where a trolley driver is justified in driving over and thereby killing one trapped workman if the consequence of his not doing so would have been to drive over and kill five.

38 On the doctrine of double effect, see P. Foot, supra n. 13; T. Nagel, supra n. 25, at 179–80; Hart, “Intention and Punishment”, in Hart, H., Punishment and Responsibility (1968)Google Scholar; Bennett, , “Whatever the Consequences” (1966) 26 Analysis 83CrossRefGoogle Scholar; Anscombe, , “Modern Moral Philosophy”, (1958) 33Google Scholar Philosophy; Finnis, J., Natural Law and Natural Rights (1980) 118–25Google Scholar; Moore, , “Intention and Mens Rea”, in Issues in Contemporary Legal Philosophy (Gavison, R. ed., 1987) 245Google Scholar; Fried, C., Right and Wrong (1978) 31–32.CrossRefGoogle Scholar

39 S. Kadish, supra n. 13, at 29.

40 See generally C. Fried, An Anatomy of Values, Part III (1970).

41 See P. Foot, supra n. 13, at 30.

42 Model Penal Code sec. 3.02, comments at 8 (Tent. Draft No. 8, 1958): “So too a mountaineer, roped to a companion who has fallen over a precipice, who holds on as long as possible but eventually cuts the rope, must certainly be granted the defense that he accelerated one death slightly but avoided the only alternative, the certain death of both”.

43 The example is an ancient one, to be found in both Bacon and Kant. Justice Holmes' version was: “If a man is on a plank in the deep sea which will only float one, and a stranger lays hold of it, he will thrust him off if he can”. O.W. Holmes, The Common Law (1881)44, at 47. See the treatment of the plank hypothetical in Kant, I., Metaphysical Elements of Justice (Ladd, J. trans., 1965) 41–42.Google Scholar See generally G. Williams, supra n. 1, at 738.

44 At least, they would not be justified in thrusting him off in these circumstances (see Fletcher, supra n. 34); they might be excused, however. (See Bacon, Maxims, reg. 25.)

45 Queen v. Dudley and Stephens, 14 Q.B.D. 273 (1884); United States v. Holmes, 226 Fed. Cas. 360 (3d Cir. 1842). For commentary on these famous cases, see Simson, A.W.B., Cannibalism and the Common Law (1984)Google Scholar; Fuller, , “The Case of the Spelunkean Explorers”, (1949) 62 Harv. L. R. 616CrossRefGoogle Scholar; L. Katz, supra n. 1, at 8–62.

46 G. Williams, supra n. 1, at 744. See also the Model Penal Code, Commentary, quoted supra n. 42.

47 G. Williams, supra n. 1, at 739.

48 J. Thomson, supra n. 13.

49 Ibid., at 108.

50 Ibid., at 96.

51 Glover, J., Causing Death and Saving Lives (1977) 102.Google Scholar See also L. Katz, supra n. 1, at 34.

52 Model Penal Code sec. 3.02, Comments at 8 (Tent. Draft No. 8, 1958).

53 This is Thomson's contrasting example. J. Thomson, supra n. 13, at 83.

54 J. Smart & B. Williams, supra n. 21, at 117.

55 S. Kadish, supra n. 13, at 279, n. 32.

56 Ibid., at 280 n. 32.

57 Although the defense of duress is best thought of as an excuse, not a justification, the English doctrine here discussed does not attend to that distinction. I accordingly feel some justification for treating the law of duress as an apt analogy illustrating the principle discussed in the text.

58 Lynch v. Director of Public Prosecutions, (1975) All E.R. 917. When an accomplice does more than make possible the principal's intervening act – where he actually participates in the killing – then duress is no longer available as a defense. (See Abbott v. Queen, (1976) All E.R. 140; see also L. Katz, supra n. 1, at 62–69.) This limitation also illustrates the principle in the text, because where the accomplice actually holds the victim while she is being skewered with a saber wielded by the principal (the facts of Abbott), the principal's killing is not an act intervening between that of the accomplice and the harm; rather, both the sword thrust of the principal and the holding by the accomplice jointly kill. (On the relation between causal responsibility and accomplice responsibility generally, see Kadish, “Cause, Complicity, and Blame”, in S. Radish, supra n. 13.) Failing to attend to this difference, the English courts have recently abolished the doctrine that accomplices may ever avail themselves of the defense of duress when the charge is murder.

59 Nagel, supra n. 33, at 58.

60 Ibid., at 60.

61 Ibid.

62 Judy Thomson at one time came close to adopting Nagel's distinction. Needed, she thought, was some account of “what it is to bring something about by doing something”. J. Thomson, supra n. 13, at 92. With such an account, she thought, perhaps we could make sense of the intuition “that what matters in these cases in which a threat is to be distributed is whether the agent distributes it by doing something to it [which then causes harm to the victim], or whether he distributes it by doing something to a person”.

63 I explore this distinction briefly in Moore, supra n. 5, at 1096. Closely related is George Fletcher's distinction between wrongdoing and attribution. See G. Fletcher, supra n. 1.

64 For an analysis of these conditions of culpability, and their realization in criminal law doctrines, see Moore, , “The Moral and Metaphysical Sources of the Criminal Law”, in Nomos XXVII: Criminal Justice (Pennock, J. and Chapman, J. eds., 1985)Google Scholar; M. Moore, supra n. 11, at 49–90. The Model Penal Code nicely duplicates these three conditions of culpability in sees. 2.01 (voluntary action), 2.02 (culpable mental states), and 2.03 (causal responsibility).

65 P. Foot, supra n. 13, at 26.

66 Ibid., at 28.1 am unclear as to Mrs. Foot's present views on her starving beggar example. See Foot, , “Morality, Action and Outcome”, in Morality and Objectivity (Honderich, T. ed., 1985) 23–38Google Scholar, at 37 n. 6 where she appears to reclassify the example as a violation of a merely positive duty but with a direct intention.

67 Foot, “Morality, Action, and Outcome”, ibid., at 24. For additional criticism of Foot on this point, see Quinn, “Actions, Intentions, and Consequences: The Doctrine of Doing and Allowing”, forthcoming, Phil, and Pub. Aff. (summer, 1989).

68 With one qualification, this is also where Quinn comes out. See Quinn, supra n. 67.

69 I assume without argument here that there is such a thing as “moral luck”, so that if we tty to cause (or risk causing) some harm but fail, we are less culpable than if we succeed. Compare Nagel, “Moral Luck”, in Nagel, T., Mortal Questions (1979)Google Scholar, with Williams, “Moral Luck”, in Williams, B., Moral Luck (1981)CrossRefGoogle Scholar.

70 J. Thomson, supra n. 13, at 108. Philippa Foot also seems to find this distinction intuitively appealing. See Foot, supra n. 66, at 24–25, 37 n.3.

71 This is not an unprobleraatic rationale, for it requires us to make sense of the idea that causation can be a “more-or-less” affair, a relation capable of being more strongly or less strongly present by matters of degree. I myself have questioned whether the causal relation is this kind of scalar phenomenon, more like the relation “bigger than” than the relation “brother of”. (Moore, supra n. 5). Nonetheless, the common moral intuition to which Thomson's distribution exemption points us does seem to be built on this scalar intuition about causal responsibility.

72 Hart, H. & Honore, T., Causation in the Law (1959, 2nd ed., 1985).Google Scholar

73 Nagel himself appears to have construed his own former distinction (between doing and causing) quite differently; now he aligns it with the intending/foreseeing distinction. T. Nagel, supra n. 25, at 179.

74 On the idea of complex action verbs, see M. Moore, supra n. 11, at 75–76.

75 Nagel, supra n. 33, at 60.

76 Bennett, supra n. 38, at 92.

77 See, e.g., C. Fried, supra n. 38; T. Nagel, supra n. 25, at 175–88. It does seem to me that any answer to this question will have to focus on the moral integrity or well-being of the agent to whom moral prohibitions apply and not on the unfairness or rights of the victim. (See Raz, J., Morality and Freedom (1986) 284–87.Google Scholar) This suggests the need for a virtue-based account of deontological constraints, recognizing that we tend not to think of all duties as ultimately being duties we owe to ourselves (to be virtuous). For a skeptical discussion of this approach, see Scheffler, , “Agent-Centered Restrictions, Rationality, and the Virtues”, (1985) 94 Mind 409CrossRefGoogle Scholar, reprinted in Consequenlialism and Its Critics, op. cit. supra n. 22, at 243, 254–55.

78 S. Scheffler, supra n. 20, at 114.

79 I argue for this in Moore, “Moral Reality”, (1982) Wis. L. R. 1061.

80 See Rawls, , “Two Concepts of Rules”, (1955) 64 Phil. Rev. 3CrossRefGoogle Scholar, where Rawls distinguishes exceptions to the norm against breaking a promise from overriding that norm. See also J. Raz, supra n. 77, at 361–62.

81 See Hart, H., Law, Liberty, and Morality (1963) 31.Google Scholar

82 Dudley and Stephens, and Holmes, supra n. 45.

83 In Holmes, supra n. 45, the Court stated that if a fair procedure had been used to select who was to be thrown overboard, then the act would have been justified. In Lon Fuller's variation, it is not only the fairness of the selection procedure that makes a difference, but the victim's having consented to the procedure ex ante (i.e., before he knew he would draw the short straw). See Fuller, supra n. 45; L. Katz, supra n. 1, at 51–56.

84 J. Thomson, supra n. 13, at 87.

85 Although on occasion such “bare fact of consent” does do some moral work. What (of a non-utilitarian sort) can be said in favor of killing any fleeing felon (the old common law rule for policemen) was that he assumed the risk of being shot when he ran after the warning, “stop or I'll shoot”.

86 A “content-independent reason” for action is a reason created by an act like a promise, or a vow, or a request of a friend. Such acts create new reasons to do what is promised, avowed, or requested, reasons whose force as reasons is independent of the goodness of the actions promised, etc. See generally J. Raz, supra n. 77.

87 T. Nagel, supra n. 25, at 182.

88 On the problems with assumption of the risk arguments like that dealt with in the text, see Katz, “The Assumption of the Risk Argument”, forthcoming, Philosophy and Social Policy (1990).

89 See Murphy, , “The Killing of the Innocent”, (1973) 57 Monist 527CrossRefGoogle Scholar; Nagel, supra n. 33.

90 On the excuse interpretation of self-defense, see S. Radish, supra n. 13, at 116.

91 Compare S. Kadish, supra n. 13; Thomson, “Self-Defense and Rights”, in J. Thomson, supra n. 13; J. Dressler, supra n. 1, at 199–201; Montague, , “Self-Defense and Choosing Between Lives”, (1981) 40 Phil. Studies 207CrossRefGoogle Scholar; Wasserman, , “Justifying Self- Defense”, (1987) 16 Phil, and Pub. Aff. 356Google Scholar; Montague, , “The Morality of Self-Defense: A Reply to Wasserman”, (1989) 18 Phil, and Pub. Aff. 81.Google Scholar

92 See S. Kadish, supra n. 13. I put aside utilitarian accounts of the defense (e.g., in terms of deterring attacks by allowing victims to kill their attackers).

93 These possibilities are discussed in Thomson, supra n. 91. Rashi, a medieval commentator on the Talmud, appears to have adopted such a victim-based account of self-defense, for he treats the killing of a burglar as a trivial act: such a culpable person “has no blood” in the sense that he should be treated as one who is already dead. See Finkelman, , “Self-Defense and the Defenses of Others in Jewish Law: The Rodef Defense”, (1987) 33 Wayne L. R. 1257Google Scholar, 1284–86; Fletcher, supra n. 1, at 256.

94 These possibilities are discussed in S. Kadish, supra n. 13.

95 As in S. Kadish, supra n. 13.

96 For suggestions along this line, see Montague, supra n. 91.

97 For a variety of examples, see Fletcher, , “Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory”, (1973) 8 Is. L. R. 367Google Scholar; Nozick, R., Anarchy, State and Utopia (1974) 34–35.Google Scholar

98 S. Kadish, supra n. 13, at 122.

99 See R. Nozick, supra n. 97.

100 Cf. Scanlon, supra n. 24, at 90, who suggests that judgments of a non-consequentialist sort may generally reflect a “bias of the lucky against the unlucky”. The alternative account of the shield type of innocent aggressor cases is that the actor is excused, but not justified, in shooting through the shield to save himself.

101 See supra text at n. 22.

102 See R. Nozick, supra n. 97, at 34.

103 For a discussion of who is innocent for purposes of the morality of war, see Murphy, supra n. 89; Nagel, supra n. 33.

104 Murphy, supra n. 89, at 538 n.15.

105 See Fuller, supra n. 45.

106 That the Bad Samaritan has no good reason to refuse to prevent the harm is crucial here. Otherwise, we might think the healthy individual who refuses to give up his life so that five others may live with his organs is a Bad Samaritan deserving of sacrifice. Yet such an individual has a good reason not to give up his life and his organs: it is a very costly sacrifice to him. Similarly, if the spouse of a terrorist could show that she had good reason not to speak – a death threat by the terrorist organization, for example – then she too may not be the Bad Samaritan subject to harsh treatment. (I owe both of these points to Heidi Hurd.)

107 Moore, , “The Moral Worth of Retribution”, in Character, Responsibility, and the Emotions (Shoeman, F. ed., 1987)Google Scholar; Morris, “Persons and Punishment”, in Morris, H., Guilt and Innocence (1976)Google Scholar.

108 Compare McAuley, “Anticipating the Past: The Defense of Provocation in Irish Law”, (1987) 50 Mod. L. R. 133CrossRefGoogle Scholar, with Dressier, , “Provocation: Partial Justification or Partial Excuse?” (1988) 51 Mod. L. R. 467.CrossRefGoogle Scholar An alternative legal example of where the degree of wrong done is affected by the culpability of the victim to whom it is done, is provided by the felony-murder rule. If the person killed during the commission of a felony is a co-felon, it is common to refuse application of the felony-murder rule to the killer; this, presumably because taking the life of a co-felon is less wrong than taking the life of an innocent.

109 See the discussion of the criteria used by the “Seattle God Committee” which for a time decided who would live and who would die in Seattle, in L. Katz, supra n. 1, at 53–56.

110 Tosefta, Trumot 7, 23; Jerusalem Talmud, , Trumot, 8Google Scholar, 4(46b).

111 Cardozo, B., Law and Literature and other Essays andAddresses (New York, 1931) 113.Google Scholar

112 United States v. Holmes, supra n. 45.

113 J. Smart & B. Williams, supra n. 21, at 98–99.

114 Sartre, J., “The Flies”, in No Exit and Three Other Plays (New York, trans. Abel, L., 1955).Google Scholar

115 G. Williams, supra n. 1, at 729.

116 Ibid.

117 Ibid. (emphasis added).

118 Nagel, supra n. 33.

119 As Amartya Sen has observed, a threshold-deontology will in some sense be a consequentialist system: “Such a threshold-based constraint system must rest ultimately on consequential analysis, comparing one set of consequences (badness resulting from obeying the constraint) with another (badness of violating the constraint itself, given by the threshold), and its distinguishing feature will be the particular form of the consequence-evaluation function”. Sen, supra n. 24, at 187–223, 190–91 n. 8. This will particularly be true of a threshold deontology that varies the threshold (where consequences begin to count) directly with the degree of wrongness of the act to be justified by its consequences. (That is, the greater the wrong to be done, the higher the threshold of bad consequences averted has to be to justify the action as right.)

Saying all of this still does not collapse threshold deontology into consequentialism. Even if the goodness of consequences is always relevant to the Tightness of actions for a threshold deontologist, the goodness of consequences does not determine the Tightness of actions as it does for a consequentialist. Contrary to Sen, the degree of (agent-relative) wrongness of an action does not translate into some degree of (agent-neutral) “badness of violating the constraint”. The threshold deontologist does not think that the wrongness of his doing a certain act is just another bad consequence that can be outweighed by the better consequences of preventing like acts by others.

120 J. Smart & B. Williams, supra n. 21, at 93.

121 Ibid., at 91–92.

122 T. Nagel, supra n. 24, at 164–65.

123 I owe the analogy to Joseph Raz.

124 On justificatory intent, see generally G. Fletcher, supra n. 1, at 557, 559–60.

125 Shedding, Ellis & Heath, The Works of Francis Bacon (1859) 343.Google Scholar

126 Fuller, L., The Morality of Law (2nd ed., 1969).Google Scholar

127 As Justice Foster puts it: “I take the view that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case, and that this case is governed instead by what ancient writers in Europe and America called ‘the law of nature’.” Fuller, supra n. 45, at 620.

128 The difference between these two interpretations of Bacon can be seen by attending to the distinction between what modal logicians call external versus internal negation: Foster's interpretation is that it is not the case that the law prohibits spelunkean homicide (external negation); the alternative interpretation is that it is the case that the law does not prohibit spelunkean homicide. The law covers the situation under the second interpretation; it does not under the first.

129 For some of these puzzles, see L. Katz, supra n. 1, at 31–32.

130 Ibid., at 30.

131 J. Smart & B. Williams, supra n. 21, at 92.

132 See text supra at n. 113.

133 J. Smart & B. Williams, supra n. 21, at 117.

134 Ibid., at 118.

135 Anscombe, supra n. 38, at 17.

136 Nagel, supra n. 33, at 72–73.

137 See T'ung-Tsu, Ch'u, Local Government in China 125Google Scholar; Bodde, D. & Morris, C., Law in Imperial China 97–98.Google Scholar (I am indebted to Hugh Scogin for this information.) For other examples of legalized torture, see Peters, E., Torture (1985).Google Scholar

138 Dudley and Stephens, supra n. 45.

139 Cohen, Dan, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law”, (1984) 97 Harv. L. R. 625.CrossRefGoogle Scholar

140 See supra text at nn. 110–121.

141 Austin, supra n. 9.

142 The Gratitudine, (1801) 165 Eng. Rep. 450, at 459.

143 See supra text at nn. 110–121.

144 The bulk of this article has been concerned with agent-relative obligations (or restraints). For the related idea that morality contains agent-relative permissions, see S. Scheffler, supra n. 20.