Thursday, October 13, 2005

Cue Applause: The Sound of One Hand Clapping

James McConvill, whose blog often calls to mind Sylvester Stallone striding around in blue lycra tights over a large swimmer's cup bellowing "I am the law", has decided to take it up to the "latte lefts" on the subject of legally sanctioned torture. It seems that, as far as the leading lights of the Deakin University Law School are concerned, this is an argument we more or less have to have, preferably on terms which they find personally congenial, even favourable to their side of the argument. Today's Lawyers Weekly carries an opinion piece by Mirko Bagaric on the conduct of the debate over the place of torture in the defence of democracy:

Mirko Bagaric has not bothered responding to community outrage following the publication of his views on torture it is to be expected that lay people may come out strongly against them. However, he says, he expected more from lawyers

It is fair to say that my article in The Age on torture on the 17 May, 2005 has caused a storm. It is to be expected that lay people may come out strongly against my views, given the manner in which they were portrayed. More, however, could have been expected of lawyers. From lawyers, the minimum that could be expected is a rational assessment of how the proposal would affect the existing operation of the law and an awareness of the social importance of robust and open debate on matters of potential social relevance.

It's easy to understand why Bagaric is so upset at the rough handling he received; after all, he was paddling around in the centre of the teacup when the storm broke. I suppose, as a member of the hoi-polloi, I should applaud Bagaric's generosity of spirit when it comes to his "lay" detractors; we got it wrong because we was misled about what he was really saying in passages such as this:

The belief that torture is always wrong is, however, misguided and symptomatic of the alarmist and reflexive responses typically emanating from social commentators. It is this type of absolutist and short-sighted rhetoric that lies at the core of many distorted moral judgements that we as a community continue to make, resulting in an enormous amount of injustice and suffering in our society and far beyond our borders.

Sorry, and I know that this criticism can hardly be considered informed, with me not being a lawyer and all, but this excerpt from Bagaric's Age article strikes me as a bit woolly and muddled. Generally, it comes across as saying that torture is sometimes OK, and we'd all be a lot better off if we recognised this. A point reaffirmed in answer to possible arguments against Bagaric's modest proposal:

The second main argument is that torture will dehumanise society. This is no more true in relation to torture than it is with self-defence, and in fact the contrary is true. A society that elects to favour the interests of wrongdoers over those of the innocent, when a choice must be made between the two, is in need of serious ethical rewiring.

This alleged need for an "ethical rewiring" of society is reaffirmed in Lawyers Weekly:

The moral code propounded by my critics belongs in the domain of fairy tales, where important rights never clash. Sorry to break into the tranquility of their day, but sometimes rights do clash. When they do, the least horrible thing to do is that which causes the least amount of harm. And that is exactly what we do. Now, what we actually do, does not justify what ought to be done. Still, the above account is telling because the force of the anti torture objection lies in the fact that it supposedly so troubles our moral consciousness that there must be a mistake somewhere in the theory which accepts limited torture. But this claim loses its force when it is shown that torturing in extreme circumstances is in fact no worse than other activities that we condone.

Maybe my resistance to Bagaric's ideas is the result of "the manner in which they were portrayed" but a lot of that portrayal has been provided by Bagaric himself. In both the original Age article and his Lawyers Weekly article he argues that torture is sometimes justified yet, somewhat preciously, he doesn't like being seen as an advocate of the use of torture. Well, you don't need to be an all froth and no bubble "latte left" to know that you can't have your apple tea-cake and eat it.

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