Foreword: terrorism and utilitarianism: lessons from, and for, criminal law.

AuthorButler, Paul
PositionSupreme Court Review

INTRODUCTION

Punishment is violent, but its violence has a purpose. Terrorism, too, is purposeful violence. My purpose in this essay is to make this strange comparison instructive. Some terrorists defend their taking of human lives by arguing that it is for the greater good. Social utility is probably the most influential justification of punishment. My thesis is that in both cases, instrumentalist justifications are usually--but not always--immoral.

I write as a citizen of a country that not only practices instrumentalist violence, (1) but that also has been victimized by it--in spectacular fashion. On September 11, 2001, as the whole world knows, terrorists attacked the United States of America. They hijacked four planes, and guided three of those planes into American landmarks: the World Trade Center and the Pentagon. The fourth plane crashed in Pennsylvania. (2) Approximately 3,000 people were killed, and many thousands more were injured. (3) Nineteen men, thought to be terrorists, were among the dead. (4)

In this foreword I examine what the criminal law can teach us about terrorism, and what terrorism can teach us about the criminal law. Both terrorism and the harsh punishment for crimes favored by American criminal justice are premised on a construct of cost--benefit analysis that, while (arguably) efficient, is immoral. Both terrorism and excessive punishment can be justified by instrumentalism, but neither should be.

For the record, my comparison of terrorism and American criminal justice does not mean that I think that they are equally bad. Terrorism is worse. There are, however, an extraordinary number of people in the United States who are being punished disproportionately to their just desert. They are punished for social, not individual, reasons. This is especially true of the hundreds of thousands of Americans who are imprisoned for drug offenses. (5) When we remember that punishment is when "the Government ... intentionally inflicts pain," (6) we understand that the state is deliberately hurting people to achieve some end. This is not as bad as what terrorists do, but the difference is one of degree, not kind.

My argument proceeds in three parts. In Part I, I define terrorism and examine it from instrumentalist and moral perspectives. Along the way to making the case that terrorism is usually immoral, I discuss instances in which it is not. I argue, for example, that violence is morally justified to defeat genocide or slavery. Indeed, many contemporary definitions of "terrorism" would include slave rebellions, though many now think of those terrorists as heroes. Part II examines the concept of moral standing, to explain why and how it matters whether we practice what we preach about violence and morality. In Part III, I criticize the heavy reliance of our criminal justice system on utilitarianism. I make the same moral critique of most forms of utilitarian punishment that I make of most types of terrorism. I conclude by imagining how American criminal justice would be improved if punishment were not used as a means to an end.

  1. TERRORISM AND UTILITY

    Terrorism, according to the Federal Bureau of Investigation, is "the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives." (7) Terrorism is the way that non-soldiers engage in war. (8) Among the differences between terrorism and traditional war are that traditional wars are sometimes "legal" and terrorism is illegal, and that the perpetrators and the intended victims of terrorism are often civilians, (9) whereas in traditional war the intended victims are soldiers.

    Why do people engage in terrorism? Terrorists are not stupid. (10) They are purposeful. (11) The violence of terrorism, like the violence of punishment, is expressive. In the language of criminal law, terrorists may have retributive or instrumentalist motives for the suffering they inflict. "Retributive" terrorists believe that the victims (or their country) deserve punishment, for their own sake. (12) More typically, though, the objective of terrorism is instrumentalist. Terrorists want to coerce compliance with their will by inflicting fear. (13)

    Terrorism is efficient when its benefits outweigh its costs. (14) This is a difficult calculus for some non-terrorists to understand. (15) The benefits of terrorism often seem indeterminate or too intangible to quantify. What, for example, were the September 11 terrorists seeking? If their intent was to make the United States less friendly towards Israel, or to get American troops out of Saudi Arabia, they lost, at least in the short term. If, on the other hand, their objective was less specific--their desire was simply to hurt Americans, to frighten them, to make their institutions less stable, to reduce the sense of security conferred by citizenship in the world's most powerful country--then the September 11 terrorists were spectacularly successful.

    Unlike its benefits, terrorism's costs are all too tangible. Frequently the costs are measured in body bags. The costs may include 1) the lives of the victims; 2) the terrorists' own lives; (16) 3) punishment; 4) war or other violence against the terrorists' "side;" and 5) public backlash against the terrorists' cause. For the suicide terrorist, death is the most certain cost. The Western (and especially the American) emphasis on individuality--the primacy of self--makes it difficult for us to understand how any cause, especially a "political" one, could be worth losing one's life. There are, however, those whose faith in their cause makes them willing to die for it. (17) This concept is commonplace in military discourse and terrorists are, in a sense, civilian soldiers. (18)

    The most pitiful cost of terrorism is the loss of innocent life. For the terrorist, the pain inflicted on victims actually might be a benefit (because, in his mind, the victims are not "innocent"). (19) A terrorist might, on the other hand, regret his taking of life, but view it as an unavoidable cost of doing business, in the way that a "legal" soldier knows that her work may require her to kill others, or that General Motors understands that its automobiles will cause deaths.

    The other costs of terrorism--punishment, war, backlash--are considerably more speculative. This lessens their effectiveness as deterrence. (20) For deterrence, the certainty of a consequence is a more important correlate than the severity of a consequence.

    The reason that terrorism exists is because, at times, it works. Frequently cited examples of "successful" terrorism include the effort by Zionist extremists to create the state of Israel by killing Palestinians, the campaign of militant Palestinians against moderate or conservative Palestinians in the West Bank, the violence perpetrated by the Irish Republic Army against the United Kingdom, and (in constructs of terrorism that include state actors) the bombings of Dresden, Hiroshima, and Nagasaki. Depending on what one views as their goals, the September 11 terrorists are considered by some to have "won" as well.

    Perhaps as tacit acknowledgment that terrorism can be efficient, the typical critique is based on a different ground: morality. Terrorists may be rational, the argument goes, but they are also evil. (21) The philosopher Jan Narveson has identified three components to the immorality of terrorism: first, the sense of risk that it causes the public at large; second, the powerlessness people have from being put at risk; and third, the "apparent absurdity" of attacking an innocent victim in pursuit of a political goal. (22)

    In those cases in which it is not absurd to sacrifice an innocent life to make a political point, however, there is a (not unfamiliar) conflict between what the market bears and what morality demands. (23) Even when terrorism "works," most Americans would say it is immoral because its tools are death and destruction. (24) Those tools seem outside the bounds of civic discourse. (25)

    Of course they are not. Almost 40 years before September 11, 2001, H. Rap Brown, the African-American revolutionary, observed that "violence is as American as apple pie." (26) In criminal law, killing or injuring people to achieve some useful purpose is a familiar concept. When the government intentionally kills or hurts someone under the guise of "punishment," it may have retributive and/or utilitarian objectives. Retributivists punish exclusively because punishment is deserved, either because the criminal is morally blameworthy or because she has broken some contract with society. Utilitarians believe that criminals should be harmed when it is in the best interest of society, usually because punishment is believed to deter other crime, or to incapacitate a criminal, or to rehabilitate her.

    Law and morality do not limit the instrumental use of violence to the state. Private actors are sometimes allowed to kill and destroy, if they have good reason. Defending one's life is a classic example. More broadly, the philosopher Jan Narveson has described six situations in which private violence might be moral. (27) He states them in order from most to least plausible justifications:

    (1) Preventing immediate injury to self--sheer self-defense

    (2) Preventing immediate injury to others--sheer other-defense

    (3) Preventing longer-range threats to life, to self or others

    (4) Preventing or rectifying loss of legitimate liberty by self or others

    (5) Providing conditions of a minimally acceptable life when no other means is possible (even when others have not clearly deprived one of such conditions)

    (6) Promoting a better life for oneself, some favored group, or humankind at large, beyond the "minimally acceptable" level mentioned in (5). (28)

    Narveson proposes that, on a moral scale, (1)-(4) are "basically acceptable, that (6) is definitely not...

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