Professor Bainbridge...on law, politics, religion, culture & food

Gaza and Double Effect

Over at Crooked Timber, Harry relates the following:

David Velleman (NYU, Philosophy) observes (in an email to me) that CNN is describing the Israeli killing of civilians in Gaza as “unintentional” (he didn’t give me a link, but I believe him, and no doubt one of you will supply it). He continues:

As a philosopher of action, I say that this description is false.

The Israelis knew that they would would cause civilian casualties vastly disproportionate to the Israeli civilian casualties that they are trying to prevent. They have accepted those Palestinian deaths as a cost of pursuing their ends, and hence as part of a “package deal,” all of which is intentional on their part.

I know that the Catholic doctrine of “double effect” would excuse these killings as unintentional. But the doctrine of double effect is bad philosophy.

Look at it this way. The Israeli authorities are not trying to get their own soldiers killed; they are trying to minimize harm to Israeli forces. But should it turn out (god forbid) that their incursion results in
disproportionate Israeli losses, and that they antecedently knew it would, they will rightly be held responsible for having struck a bad bargain, intentionally incurring costs too great for the anticipated
benefits. In such a case, they would not dare to plead “double effect”.

So it is with killing of Gazan civilians, which is clearly intentional.

I’m not a philosopher of action, and I’m also not the kind of philosopher that gives common sense much weight in trying to discern the philosophical truth. But the doctrine of double effect has always seemed to me to be one of those things which is deeply counterintuitive to common sense, for reasons illustrated in Velleman’s email, and is a case where philosophers ignore that unease that common sense suggests at their peril.

I’d be the first concede that the doctrine of double effect can get quite tricky, but I don’t buy Velleman’s analysis. The doctrine of double effect requires that four conditions be satisfied:

1. The act itself must be morally good or at least indifferent.


2. The agent may not positively will the bad effect but may merely permit it. If he could attain the good effect without the bad effect, he should do so. The bad effect is sometimes said to be indirectly voluntary.


3. The good effect must flow from the action at least as immediately (in the order of causality, though not necessarily in the order of time) as the bad effect. In other words, the good effect must be produced directly by the action, not by the bad effect. Otherwise, the agent would be using a bad means to a good end, which is never allowed.


4. The good effect must be sufficiently desirable to compensate for the allowing of the bad effect. In forming this decision many factors must be weighed and compared, with care and prudence proportionate to the importance of the case. Thus, an effect that benefits or harms society generally has more weight than one that affects only an individual; an effect sure to occur deserves greater consideration than one that is only probable; an effect of a moral nature has greater importance than one that deals only with material things.

With respect to requirement # 1, acts of war must comply with both the jus ad bellum and the jus in bello. The former asks whether the war in question is just. The latter refers to the conduct of operations during war. (At the outset, let me clear that in this post I am not reaching any conclusions with respect to whether the Israeli incursion into Iraq violates either the jus ad bellum or the jus in bello.)

A core requirement of both aspects of just war theory is proportionality. If the Israelis know that their operations are causing civilian casualties vastly disproportionate to the Israeli civilian casualties that they are trying to prevent, they are using disproportionate force for purposes of the jus in bello and, moreover, have called into question whether there is a just cause for war for purposes of the jus ad bellum.

As such, assuming the facts to be as stated by Velleman, the principle of double effect would not validate the conduct because the initial requirement of a moral (or morally neutral) act cannot be satisfied. It seems to me that it is not so much double effect that is “bad” philosophy, but rather Velleman’s analysis.

Update: In the comments to the CT post, Chris Bertram observes that:

Velleman writes:

I know that the Catholic doctrine of “double effect” would excuse these killings as unintentional.

Velleman “knows” no such thing, since the Catholic doctrine of double effect would not permit “civilian casualties vastly disproportionate to the Israeli civilian casualties that they are trying to prevent.”

Philosopher Tom Hurka offers up a long comment, which starts off:

If the doctrine of double effect is so “counterintuitive” and such “bad philosophy,” how come it’s central to the international law of war, which distinguishes sharply between targetting civilians, which is very strictly forbidden, and harming them as a side-effect of actions aimed at legitimate military targets, which is not forbidden if the harm to civilians is not disproportionate.

He goes on to demolish the original post. And then comes the zinger:

the DDE doesn’t at all say what Velleman says it says.

Ouch.

The USA Rent Asunder

Gordon Smith offers up a map of what the USA would look like if Russian academic Igor Panarin’s predicted break up takes place:

I dote on this sort of stuff. So here’s a question for discussion: Assuming the USA were to split up, is Panarin’s map the most likely scenario? How about Garreau’s Nine Nations Map?

Or how about Heinlein’s Dominions of North America, as mapped by yours truly?

Will there by lawyers in heaven?

David Skeel thinks even heaven probably will might need lawyers. Whew.

Smart Stimulus Spending

David Skeel has an interesting idea for how the federal government ought to spend its stimulus dollars:

The number of urban police officers per unit population held steady through the 1970s and 1980s, while urban violence steadily rose. In the 1990s, that number rose 17%, and violent crime fell sharply. In this decade, nearly half of the gains of the 1990s have been wiped out during this decade--and that was true before the collapse of the credit markets this past fall and the broader recession that is now taking hold. Urban violence is rising again. If the federal government doesn’t subsidize police spending, we will see more cuts in local police budgets, and probably more crime.

Police spending has another large benefit: over time, it reduces prison spending. Take a look at this graph--the blue curve is annual change in the number of urban police officers per unit population with a one-year delay; the green curve measures annual change in the number of prison inmates per unit population. The inverse relationship between the two curves is hard to miss:

Follow the link to check out the curve.

Ribstein on Iseman v NYT

Remember the NY Times hit piece that implied an affair between John McCain and Vicki Iseman? Larry Ribstein’s got a very interesting analysis of Iseman’s defamation suit against the Times.

Punish Pirates

The world seems to have gone all wimpy when it comes to the Somali pirates. While I was on hiatus, a German warship foiled a pirate attack but then released the pirates. I don;t get this hesitancy to deal with the scourge and neither does my friend and international law expert Tony Arend:

Under international law, piracy is a well-established crime of universal jurisdiction. All states have the right to arrest pirates on the high seas, and all states have the right to prosecute pirates in their domestic courts. There is no requirement under international law that pirates can only be prosecuted if they were caughts while acting against the interests if the arresting state. The only plausible reason that Berlin would not have been able to prosecute the pirates is if there were some provision of the German criminal code that required such nexus. If that is the case, it might make sense for German to change its code.

Fun Maps

Strange Maps has two awesome new maps:

Accidental maps: Puddles that look like the southern USA and so on.

Preferred hot dog toppings in West Virginia. I dote on these regional food maps. I’m especially fond of the regional BBQ preference map.

The RNC Rebels … At last

The Washington Times reports that:

Republican Party officials say they will try next month to pass a resolution accusing President Bush and congressional Republican leaders of embracing “socialism,” underscoring deep dissension within the party at the end of Mr. Bush’s administration.

Those pushing the resolution, which will come before the Republican National Committee at its January meeting, say elected leaders need to be reminded of core principles. They said the RNC must take the dramatic step of wading into policy debates, which traditionally have been left to lawmakers.

“We can’t be a party of small government, free markets and low taxes while supporting bailouts and nationalizing industries, which lead to big government, socialism and high taxes at the expense of individual liberty and freedoms,” said Solomon Yue, an Oregon member and co-sponsor of a resolution that criticizes the U.S. government bailouts of the financial and auto industries. Republican National Committee Vice Chairman James Bopp Jr. wrote the resolution and asked the rest of the 168 voting members to sign it.

I agree with them on the merits about the auto bailout (but not the financial services bailout) for reasons I explained in my post The Key Difference Between the Financial Sector Bailout and an Auto Industry Bailout.

But I have to ask: Where the heck have these guys been the last 8 years? Why didn’t the RNC rebel when Bush betrayed limited government, conservative foreign policy, and market economy principles in No Child Left Behind, the prescription drug entitlement, massive deficit spending, invading Iraq, and so on? The silence of GOP insiders during the last 8 years speaks volumes. As does their lame last minute decision to finally stand on principles.