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Implausible Hypothetical Cases Make Bad Law

Michael Scheuer sets about to prove that torture is awesome:

In surprisingly good English, the captive quietly answers: ‘Yes, all thanks to God, I do know when the mujaheddin will, with God’s permission, detonate a nuclear weapon in the United States, and I also know how many and in which cities.’ Startled, the CIA interrogators quickly demand more detail. Smiling his trademark shy smile, the captive says nothing. Reporting the interrogation’s results to the White House, the CIA director can only shrug when the president asks: “What can we do to make Osama bin Laden talk?”

Of course all this really proves is that you can prove a lot when you get to stipulate facts. For example, I think that if I put forward a general proposition “allowing FBI agents to murder little girls is a bad idea” then few people would disagree with me.

But wait! Suppose we have Osama bin Laden in captivity and he says “Yes, all thanks to God, I do know when the mujaheddin will, with God’s permission, detonate a nuclear weapon in the United States, and I also know how many and in which cities and I will tell you in time for you to disarm them all but only if the FBI murders two little girls in cold blood first.” Now I guess I also get to stipulate that for some reason Osama is credible in making this threat and also credible in making the promise, and I also get to stipulate that it’s actually the case that little girl murdering is the only way to prevent the detonation of multiple nuclear weapons in American cities.

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What happens then?

As it happens, qua former philosophy major I do think this is a powerful conception challenge to certain kinds of deontological ethical systems. But it’s obviously not a serious policy argument about whether or not we should write some kind of “it’s sometimes ago to murder innocent girls when doing so is an expedient investigatory tactic” provision into the law. To make a policy argument requires a whole different set of considerations to be put into play and the argument can’t crucially hinge on arbitrary sets of stipulated facts.