21 Sep, 10 | by Iain Brassington
A little while ago, Richard Ashcroft alerted me to this story: a judge in Saudi Arabia was considering surgical paralysis as the sentence for a man who had caused a similar injury to someone else in a fight. The BBC’s story came via a report on Amnesty’s website, which you can find here. The story was widely picked up across the blogosphere, too: for example, PZ Myers wrote that
I don’t know how you find a doctor willing to commit such a violation of medical ethics, but then, I don’t understand how we can have doctors to carry out the death penalty, either.
It’d be easy to catalogue the lunacy of at least some aspects of the Saudi judicial system, but that’s not what I want to do here; Myers’ post points to a deeper and wider problem concerning what medics ought to do in respect of judicial decisions that are, arguably, morally indefensible.
There’s at least two quite distinct facets to the problem. The first of these has to do with medical complicity in the execution of unjust sentences. Blunty, the question is this: is it permissible for people to engage in morally suspect practices that are legally demanded? And if it’s permissible, is it permissible not to? In respect of the second question, I suppose the thought might go that, since we are all obliged to obey the law, and since a judicial ruling is (depending on your perspective) either an expression of the law or the law itself, we might have an obligation to do as the judge directs. I don’t think that that argument wholly works, though, because of the intuition that it’s permissible to disobey unjust orders and laws – hence if what the judge directs is monstrous, there is no obligation to obey.
But that leaves the permissibility question. Would it be permissible for a medic to participate in the execution of a death sentence, or the execution of a sentence of mutilation (as in the Saudi case)? We might want to fight shy of saying that it is, for a range of possible reasons. We might want to say that refusing to participate amounts to doing our bit to prevent a prima facie wrong action; or that refusing to participate means that we can keep our hands clean; or that refusing to participate is symbolically important.
But – as Williams’ thought-experiment about the job in the chemical weapons lab illustrates – things in the real world are rarely straightforward like that. Notably, we might believe – with some justification - that in the best possible world, noone would be willing to execute the sentence. But in the best possible world, the crime would not have been committed to begin with; we’re dealing with a sub-optimal world. And in such a world, there’s a reasonable likelihood that someone would be willing to execute the sentence. Moreover, if all the decent people are refusing to participate, this means that the only people willing to give the lethal injection, or sever the spinal cord, are the rogues.
That would seem like a reason for us to act, then – albeit with a heavy heart: simply put, we would do the job in order to make sure that it isn’t done by a scoundrel. This is not a good outcome, but it is perhaps pareto-optimal: the least bad or wrong outcome. It’s not a very satisfying way to act, but it’s not insane either. Granted that something terrible is going to happen, there might well be a moral reason to ensure that it is at least carried out competently, with a degree of sympathy, and so on. Better that you or I do the job and feel awful about it, than that someone else who enjoys it does it. And yet that seems like the incorrect response, I think.
The other facet of the problem has to do with the relation ship between law and morality.
I guess that many people’s starting point is that there ought to be at least some sort of nodding relationship between the two: we would want to think that an immoral law would be removed from the statute book, or at least left unenforced. But there’s also a strong tradition of thinking that law and morality should be separated, or thought of as separate things. Thus from the Millian tradition we have the idea that a person’s moral welfare is noone else’s business, for just as long as no third party is harmed; this looks like a claim that the state ought to play no role in the enforcement of morals. This amounts to a claim about the relationship between morality and law: to wit, it ought only to be very informal.
Along similar intellectual lines, we have the claims of Hartian positivists, who’d also want to insist that – while we might want our laws to be just – there is also no necessary relationship between morality and law.
Such approaches have good liberal credentials; a world in which morality is none of the law’s business is one in which people are freer to live their lives as they please. But as several commentators have pointed out, a world in which morality and law are separate is also one in which there is no obvious moral constraint on the law – Radbruch’s objection to Hartian positivism is that it meant that German judges during the Third Reich could wash their hands of the laws that they were enforcing, precisely on the grounds that all they were doing was enforcing the law.
Similar worries might be expressed in relation to medics who are expected to participate in judicial mutilations or killings; they are doing what the law commands and, since there’s no necessary link between law and morality, the moral aspect of what they’re doing is pushed aside.
I suppose that a lot depends here on how the medics in question see their role. Are they agents of the law, whose area of expertise happens to be medical? Or are they medics, who happen to be performing a social function? If the former, then they would seem to be abel to say that they were simply doing their job. If the latter, there’d be a question to be asked about why they chose to perform this function in particular.
But suppose their answer to this last question takes us back to the first facet of the problem, and is that they chose it because the next person in the line is an even bigger bastard – and suppose they’re right. What then?