Two Interesting-Looking Articles

Over at Larry Solum's Legal Theory blog, there are links to (at least) two relatively recent papers that will likely be of interest to "Mirror of Justice" readers. First, Larry's "Download of the Week" is a paper entitled, "Unjust War," by Jeff McMahan of Rutgers (available here).

Also, the University of Minnesota's Oren Gross has posted on the SSRN his paper, "The Prohibition of Torture and the Limits of Law." Here is the abstract:

"The debate about the moral and legal nature of the prohibition on torture and about the permissibility of carving out exceptions to that ban is generally conceptualized as a clash between two opposing poles with no middle ground between them. One may support an absolute ban on torture. Alternatively, one may believe that the duty not to torture, even if generally desirable and laudable, does not apply in certain exceptional circumstances, or, even if it does apply, is overridden, canceled or trumped by competing values.

This paper defends an absolute prohibition on torture while, at the same time, arguing that truly catastrophic cases, such as the paradigmatic ticking-bomb scenario, should not be brushed aside as merely hypothetical or as either morally or legally irrelevant. The paper suggests that the way to deal with the "extreme" or "catastrophic" case is neither by reading it out of the equation nor by using it as the center-piece for establishing general policies. Rather, the focus is turned to the possibility that truly exceptional cases may give rise to official disobedience, i.e., public officials may step outside the legal framework and be ready to accept the legal ramifications of their actions. I argue that the prospect of extralegal action supports and strengthens the possibility of formulating and maintaining an absolute prohibition on torture."

It does not appear (unfortunately) that Gross engages specifically with the work of my colleague John Finnis, whose work on "exceptionless moral norms" would seem relevant here. See, e.g., Moral Absolutes: Tradition, Revision, and Truth (1991) (available here).

Rick