Would You Kill the Fat Man (7 page)

The case became a
cause célèbre
, not just because Jakob came from a prominent family, but more especially after allegations surfaced of the torture threat. Frankfurt’s deputy police chief, Wolfgang Daschner, who had written the “torture” note, gave various interviews to the press. He’d faced a stark choice, he said. “I can just sit on my hands and wait until maybe Gäfgen
eventually decides to tell the truth and in the meantime the child is dead, or I do everything I can now to prevent that from happening.”
¹

The torture threat, apparently, had not been an idle one. A martial arts trainer had been put on call: the police believed the suspect could be hurt without lasting physical damage being inflicted upon him.

There were expressions of outrage at Daschner’s behavior. One MP from the Green Party warned that, “if you open the window, even just a crack, the cold air of the Middle Ages will fill the whole room.”
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But Daschner also had vocal supporters, and polls showed that the majority of Germans believed the threat was a reasonable means of potentially saving a life. When, in court, Gäfgen’s lawyer attempted to use the torture threat to have the case dismissed, spectators were heard to grumble, “Incredible: How many rights does he want for this guy?”
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And amidst the uproar from human rights groups, Daschner commented, “Not one single person has been able to tell me what I should have done.”
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No-harm Zone

There could be no trolleyology without deontology.

Deontology states that there are certain things, like torture, that you just shouldn’t do. We mustn’t take an entirely impersonal perspective on morality. An individual’s well-being shouldn’t just be stirred and dissolved into some giant vat of well-being soup. We can’t torture someone to death even if this would save five lives—even if it would, in the utilitarian sense, contribute to the total sum of happiness. Some deontologists
are absolutists—for them, nothing could ever justify torture. But most accept that in certain circumstances deontological constraints can be overridden, for example if the future of the planet is at stake.

Central to the history of deontology was an eighteenth-century professor, the guru of Königsberg (a city then in East Prussia, now a Russian enclave renamed Kaliningrad), Immanuel Kant. Kant made major contributions in numerous areas of philosophy, not just ethics. He is among the greatest metaphysicians of all time—preoccupied with the limits of what we can know and understand about reality.

Given his significance one might expect library shelves to groan under weighty biographies of his life. In fact there are few such tomes, explained by the fact that Kant lived an exceptionally regular and uneventful life. He attended the University of Königsberg and later taught there. There is virtually no account of his life in Königsberg that doesn’t include the possibly apocryphal story that the citizens of the city used to set their watches by his movements—he would take a daily walk at 4:30 p.m. and go up and down the street eight times. The one time he was late (another possibly apocryphal story has it) was when he received a copy of Rousseau’s tract on education,
Émile
, and was so enthralled and absorbed by it that he lost all track of time.

In Kant’s view, persons must never be treated merely as a means to some other end. This was expressed most clearly in one formulation (there are several) of his “Categorical Imperative.” The Categorical Imperative is an absolute moral requirement for all times, all situations, all circumstances, and from which all other duties and obligations follow. Kant believed the Categorical Imperative could be derived through the exercise
of our reason alone. The relevant version of his Categorical Imperative—the second formulation—asserts that we should always treat others “never merely as a means to an end, but always at the same time as an end.”

It’s a simple idea to state, though it’s hard to work out what it entails in particular cases, both real and imaginary. However, its influence has been pervasive: the modern human rights movement is almost inconceivable without Kant. (In surely its most ironic use, the Nazi war criminal, Adolf Eichmann, who was responsible for organizing the mass deportation of Jews to the concentration camps, justified himself during his trial in Jerusalem in 1961 by citing Kant’s Categorical Imperative.)
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One of those who has tried to set out in more detail what it means for humans to be enveloped in a moral carapace, a protective shield that is both sacred and inviolable, is Philippa Foot.

The existence of a morality which refuses to sanction the automatic sacrifice of the one for the good of the many … secures to each individual a kind of moral space, a space which others are not
allowed
to invade. Nor is it impossible to see the rationale of the principle that one man should not want evil, serious evil, to come on another, even to spare
more
people the same loss. It seems to define a kind of solidarity between human beings, as if there is some sense in which no one is to
come out against
one of his fellow men.
⁶

If there are certain moral absolutes—rules that tell us certain actions are always wrong and can never be sanctioned—then one of them, surely, is the prohibition on torture.

Clocks and Clichés

Browse through one section of the moral philosophy literature and you’ll hear a cacophony of ticking clocks. The ticking-clock scenario is a favorite among ethicists debating the permissibility, or otherwise, of torture. A terrorist has been captured: you know that he has planted a small atomic bomb in a major city that is due to detonate in two hours. The terrorist will not tell you where the bomb is, and unless you use torture to obtain the information from him, thousands of people will die. What should you do?

Post–9/11, when it became evident that there were people in the world bent on the goal of mass civilian murder, the ticking bomb of ethical debate took on a practical and public reality. A distinguished law professor, Alan Dershowitz, scandalized liberal opinion by writing a book in which he proposed the idea of a “torture warrant” that would be given to interrogators by governments in certain extreme circumstances.
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Since then there have been well-publicized torture scandals, such as the water-boarding of al-Qaeda operative, Khalid Sheikh Mohammed, thought to be a mastermind behind the 9/11 atrocities.

In response to the ticking-bomb case, deontologists respond in one of five ways.

First, there are those who deny that the ticking bomb reflects any possible empirical reality. In reality, threats are not usually imminent: there is no specific deadline, nor is the threat inevitable. In reality, we couldn’t know for sure that lives would be lost. What’s more, torture may prove ineffective or, worse, counterproductive—producing false confessions. And there may be alternative and legitimate ways to extract reliable information or in some other way resolve the crisis.
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Second, some deontologists are prepared to swallow the logical conclusion of an absolutist position—they continue to deny the permissibility of torture, regardless of how many lives would be saved.

Third—and this is perhaps the standard view—there are deontologists who argue that if the consequences of not torturing somebody are truly calamitous (leading, for example, to the deaths of thousands), then the constraint against torture can be overridden.

Fourth, a few deontologists maintain that a terrorist who has planted a ticking bomb is morally liable to be tortured if that’s the only way to obtain vital information. In other words, there is no constraint on torturing this person. It’s not that the potential consequences of the explosion outweigh any constraint; rather, the terrorist has, by his actions, forfeited his right not to be tortured, and his torture is acceptable even if the bomb for which he’s responsible threatened only one life.
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Fifth, there are those who determinedly refuse to engage with the scenario, who believe the justifiability of torture should not be up for discussion at all: merely to raise the possibility reflects a sickness of the mind, and a contamination of the culture. As one philosopher puts it: “Society is to some degree defined by what is undiscussable in it. For example, in our society, it’s undiscussable whether we should enslave our black population … the things we find undiscussable are things that we treat as having no two sides.”
¹⁰
Torture is one such subject, it is said: a subject with only one side.

The Gäfgen kidnapping was about as close to the ticking-bomb cliché as real life gets, though even here the parallels are far from exact: since, as it turned out, torturing the kidnapper would have been futile. Jakob had already been killed, and thus there was no life to save. But, nonetheless, it nicely illustrates
the clash between deontological and consequentialist ethics.

That clash is a common trope in literature. Euripides’ play,
Iphigenia in Aulis
, revolves around Agamemnon’s decision whether to sacrifice his eldest daughter, Iphigenia. If he does so, the goddess Artemis will stop meddling with the elements and release the wind that is holding Agamemnon’s fleet in harbor, thus allowing Agamemnon’s troops to sail against the archenemy Troy and ending the threat of their mutiny. (Iphigenia eventually resolves the dilemma by sacrificing herself.)

In
The Brothers Karamazov
, Dostoyevsky puts these words into his character Ivan, speaking to his brother:

Tell me straight out, I call on you—answer me: imagine that you yourself are building the edifice of human destiny with the object of making people happy in the finale, of giving them peace and rest at last, but for that you must inevitably and unavoidably torture just one tiny creature, [one child], and raise your edifice on the foundation of her unrequited tears—would you agree to be the architect on such conditions?
¹¹

The trolley problem speaks to such dilemmas. The Doctrine of Double Effect cited in trolleyology is clearly, in the jargon, nonconsequentialist, since it claims a distinction can be drawn between two acts that have identical consequences. And the DDE has several deontological siblings. Many philosophers claim that there is a distinction between negative and positive duties, between doing and allowing (killing and letting die), and between acting and omitting. Thus, Philippa Foot claims that failing to save a life by not donating to charity is not nearly as bad as actually taking a life: “We are not inclined to think that it would be no worse to murder to get money for some
comfort such as a nice winter coat than it is to keep the money back before sending a donation to Oxfam or Care.”
¹²

Those who reject such distinctions tend to adopt the following strategy to discredit them. They describe a pair of cases in which the relevant distinction applies, but that are otherwise identical, and that no right-minded person could believe differ in any morally significant way.

Thus, take the distinction between acts and omissions. We are told that some acts are worse than some omissions. Purportedly it is worse to kill than to fail to save a life. But now imagine that two men, Smith and Jones, both stand to make a fortune if their nephew dies. Smith sneaks into his bathroom one night when his nephew is taking a bath and drowns him, making it look like an accident. In the alternative case, Jones sneaks into the bathroom: he’s about to drown him when the boy slips, hits his head, and drowns on his own. Jones watches him die. It doesn’t look as if there’s a moral distinction between Smith and Jones, even though Smith acts whereas Jones merely fails to act (lets die). And we can thus conclude, runs the argument, that there is no fundamental moral difference between acts and omissions.
¹³

Such examples have been seen as a powerful attack on the act-omission and related distinctions. And if the attack succeeds, it has profound repercussions: it makes us, as the moral philosopher Peter Singer believes, as guilty for knowingly failing to save life as for actually taking life. But those who want to maintain that such distinctions have moral force have a crafty response. Just because the distinction is
sometimes
irrelevant, they say, it doesn’t mean it’s
always
irrelevant. Even if we accept that Smith and Jones are equally culpable, that doesn’t prove that all acts are morally equivalent, other things being equal, to all omissions.

This defense is taken up by American philosopher Frances Kamm.
¹⁴
The puzzle, then, is to determine when a distinction carries weight, and when it doesn’t—and that demands an explanation as to why the distinction is morally significant in some cases but not others.

View through the Kamm-corder

History’s best-known trolley victim, the Catalan architect Antoni Gaudi, is celebrated for his ornate, neogothic/baroque designs.

His unfinished masterpiece, the
Sagrada Familia
, draws millions of tourists with its weird, somewhat threatening spires like bejeweled cruise missiles. If there’s a philosopher whose style most resembles Gaudi’s, it’s Frances Kamm. A night creature, she toils away into the early hours devising thought experiments. “I feel that I’ve been admitted to a whole world of distinctions that haven’t been seen by others or at least not by me. And I’m taken by it as I would be by a beautiful picture.”
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