The Lesser Evil: Political Ethics in an Age of Terror.

AuthorPurdy, Jedediah
PositionBook review

THE LESSER EVIL: POLITICAL ETHICS IN AN AGE OF TERROR. By Michael Ignatieff. Princeton and Oxford: Princeton University Press. 2004. Pp. vi, 212. $29.95.

TABLE OF CONTENTS INTRODUCTION I. DEFINING THE LESSER EVIL II. THE STRENGTHS OF DEMOCRACY AND THE STRATEGY OF TERROR III. TERRORIST NIHILISM AND DEMOCRATIC NIHILISM IV. LESSER EVILS IN AN AGE OF ARMAGEDDON V. THE LIMITS OF COURAGE AND PRINCIPLE INTRODUCTION

Michael Ignatieff, the director of the Carr Center for Human Rights at Harvard's Kennedy School of Government, is not a lawyer. His work, however, treats issues of core concern to lawyers: nation-building, human rights, the ethics of warfare, and now, in his latest book, the proper relationship between liberty and security. (1) The Lesser Evil is, in part, a book a legal scholar might have written: a normative framework for lawmaking in the face of the terror threat. It is also something more unusual: an exercise in an older type of jurisprudence. Ignatieff discusses law in the light of moral psychology and a general view about the nature of value, but in a way that respects the concrete, practical character of legal decisions and does not make law hostage to philosophy. The book should thus be read on two levels: as a contribution to current legal debates about balancing liberty and security and as an object lesson in the value and limitations of Ignatieff's heterodox approach to law.

A word about Ignatieff's approach is due before discussing the main argument of The Lesser Evil. Ignatieff first came to prominence as a philosophically minded journalist who took the Balkan wars of the 1990s as an occasion to reflect on modern warfare (2) and then cemented his reputation as a student of the legal, political, and ethical dimensions of the human rights revolution. (3) One could know all this, though, without knowing the two chief sources of his method: the jurisprudence of the Scottish Enlightenment and the thought of the late Isaiah Berlin. (4) One cannot understand Ignatieff's distinctive approach without appreciating each of these influences.

The jurists of the Scottish Enlightenment, particularly Adam Smith, understood political, social, and economic life as a play of what they called "the passions" (5) By that term they did not mean what we often denote by "passion" today: a powerful impulse or need, expressing something essential about personality or identity, which overrides the constraints of convention and reason. Our modern use is classical, and specifically Platonic, in its opposition between reason and passion; it is also Romantic in its tendency to honor passion as more authentic than, and in this respect potentially superior to, reason. (6) The Scots, by contrast, used "passions" to refer to a constellation of deep-seated and widespread motivations that, taken together, formed the basic vocabulary of a fluid, dynamic account of human nature. (7) The passions were broadly divisible into social passions, including desire for the esteem of others and sympathy, the wish for one's sentiments to be in harmony with those of others; antisocial passions, particularly the appetite for dominating or lording it over others, which the theorists of passions regarded as a basic and pervasive motive; and asocial passions, chiefly intellectual and aesthetic, including a delight in order and regularity and, straining against this, a thrill at chaos and disruption. (8)

This view of human nature left little room for the Platonic and Kantian idea of moral reasoning as the clear specification of rational principles that should govern the unruly appetites and passions. The Scots regarded passions as too essential, pervasive, and polyvalent to be overridden by a stylized reason. They instead envisioned moral life as itself the product of the passions, a domain of life to be interpreted through the play of its constituent motives. For the Scots, moral reasoning therefore consisted not in prescription, that is, laying out sets of principles and rules to guide action, but rather in diagnosis, understanding how a given social order set in motion one play of the passions or another. (9) Moral life was as natural as hunger, sex, or language; but it could take very different forms, some characterized by violence and domination, others by reciprocity and mutual forbearance. (10) Philosophers sought to understand how new situations, such as the rise of capitalism and the spread of slavery in Europe's colonies, reshaped the moral lives of those who inhabited them. (11)

This has been Ignatieff's approach to his topics; it distinguishes him from most scholars in and outside the legal academy. In his writing on the ethics of warfare, he has not begun from the principles of just war theory or international law. Instead, he has started with the facts of a world in which wars are increasingly fought not by nation-states with well-organized armies, but by whole peoples, as in the Rwandan genocide, or bands of irregulars that make little distinction between civilian and combatant. (12) The title of Ignatieff's first book on this theme, The Warrior's Honor, indicates his attention to how combatants understand the ethical constraints of the new kinds of wars they fight. (13) Similarly, his work on human rights has addressed not so much the proper definition of universal and inviolable fights as the question how people come to care for, and feel obligated by, the suffering of faraway persons and culturally remote peoples. (14)

Isaiah Berlin's contribution to Ignatieff's approach is sometimes called "value pluralism," a more ungainly term than Berlin himself would likely have used. (15) The heart of the idea is that there is not, and cannot be, a single, coherent, comprehensive solution to moral, legal, or political questions, because human life is marked by loyalty to competing, incompatible, but legitimate values. (16) The world is too rich with value, or too cacophonous, to allow us one final answer to the great question, "What should we do?" For instance, we choose between, or trade off against each other, liberty and security; loyalty to our particular cultures and traditions and cosmopolitan duty to the entire human race; the freedom to be left alone and the freedom affirmatively to shape our own lives (what Berlin famously called "negative" and "positive" liberty). (17) The balances we reach cannot be uniquely right, to the exclusion of all other answers, because all such choices are tragic in the strict sense that they involve the sacrifice of some legitimate values on behalf of others.

The consequence of Berlin's value pluralism was what one might call liberal skepticism, the recognition that in a world of valid and inconsistent values, trying to enforce one true answer for everyone can bring moral and political disaster. Berlin believed that at least a part, and probably a large part, of the totalitarian experience of twentieth-century politics stemmed from the moral arrogance of rulers who sought to enforce a single vision of human life and violently cleared away whatever did not comport with it: Russian kulaks, Chinese dissidents, and the other victims of history. Fascism, too, Berlin understood as a rejection of value pluralism, a desperate and fantastical rebellion against morally ambiguous modernity and an attempt to erect in its place the temples of one's own church and tribe, which would forever erase the premises of liberal skepticism.

Value pluralism is the implicit premise of Ignatieff's discussion of liberty and security. He seems firmly to believe that there is no one formula that will guide us through the jurisprudential and legislative decisions of an age of terror. Instead, the best we can do is to try to understand precisely and carefully the values that are at stake in our decisions and the ways in which they are interrelated, and on the basis of this understanding formulate some rules of prudence to help our judgment.

The objection to approaches such as Ignatieff's is familiar: that description is all well and good, but in the end we must reach decisions, and when we do we will need principles to guide us. From this perspective, Ignatieff's psychological and sociological inquiry is at best a halfway house, at worst a kind of speculative, high-toned journalism that evades the hard business of saying what we should do, and why.

The Lesser Evil is, among other things, the author's best attempt to answer this objection. More than Ignatieff's earlier work, it approaches specific problems of governance and criminal justice in counterterror campaigns. Whether or not it is entirely satisfactory, the book itself is the best test of Ignatieff's heterodox approach. The book sheds light on its topic and also on its own method.

  1. DEFINING THE LESSER EVIL

    The Lesser Evil is a multilayered book. It ranges far while managing to maintain a coherent center. In this Review, I proceed as Ignatieff does, first laying out his prescriptions for the proper balance of liberty and security, then considering how far his method succeeds in guiding and supporting those conclusions.

    Ignatieff proposes that "all coercive measures" adopted in pursuit of a war on terror should be subjected to five tests, each of which captures an important democratic value. (18) The first test, "the dignity test," asks whether the proposed measures violate individual dignity. This standard "should always preclude cruel and unusual punishment, torture, penal servitude, and extrajudicial execution, as well as rendition of suspects to rights-abusing countries" (p. 24). He calls the second "the conservative test," a rhetorically convenient (and somewhat evasive) name for what one might also call a civil-libertarian test. As Ignatieff puts the question, "[d]o [the coercive measures at issue] damage our institutional inheritance? Such a standard would bar indefinite suspension of habeas corpus and require all detention, whether by civil or military...

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