Torture and the Danger of Legalification

I know this is an incredibly easy target, but I’m going to take a shot. With the recent publicizing of the CIA and White House memos regarding torture, part of the conversation has been whether torture works or doesn’t. Another aspect of the question has been whether it was legal or not. These shouldn’t even be the questions we ask about torture.

At the heart of torture are two emotions that are inconsistent with the path to truth: fear and arrogance (demonstrated by utter disregard for another human being).

Because we allow fear to control our feelings, thoughts, motives, and actions we justify awful means because we fear the alternative end.

Because we arrogantly see others as less than human (yes, terrorists are still human beings) we rationalize our behavior to the point that there is no ethical or moral check on it. [I considered showing multiple images from Abu Grahib, but decided to keep this family-friendly].

At this post at my personal blog, I discussed the effects of Nazi nationalistic and racial ideology and Soviet class ideology. Those on the path of fear will grab at any ideology to rationalize and justify the ends they desire.

Neo-conservatives currently use religious, cultural, and racial ideology to skew their view of torture, an act that is viscerally repulsive to any feeling human being. It is the most distorted means (among many such distorted means) to achieve the publicized sought-for end: security.

Gratefully, there are many who argue against torture and recognize its inability to obtain accurate or valuable information and the fact that it is utterly dehumanizing. However, many of these do so because “it’s against the Geneva Convention” or because “it’s illegal.”

Ethics is an idea that is above the legalistic world and is solidly a means-based discipline. Ethics, from the Greek ethikos means, moral, or showing moral character. It has at a deeper meaning a connection with theos, meaning god.

Legalification (yes, it’s a made-up word) is the process of justifying actions by making them legal, even though they are morally reprehensible. Instead of individuals operating life based on what all cultures accept as moral and correct, legalification allows persons to obtain a judicial opinion on an action so that it becomes acceptable.

The judges who wrote the memoranda for the Bush adminstration to allow torture are morally responsible for their action and those who carried out the torture. Those who performed the torture are not “legally” responsible for their action (since the judges legalified the torture), but they still carry the moral responsibility for their treatment of another human being.

Legalification is one of the more dangerous slippery slopes to rear its head in the 30 years. In his speech at Harvard commencement in 1978, Alexander Solzhenitsyn identified this relatively new method of control, oppression, and deviation from the path of morality and self-responsibility thus:

Western society has given itself the organization best suited to its purposes, based, I would say, on the letter of the law. The limits of human rights and righteousness are determined by a system of laws; such limits are very broad. People in the West have acquired considerable skill in using, interpreting and manipulating law, even though laws tend to be too complicated for an average person to understand without the help of an expert. Any conflict is solved according to the letter of the law and this is considered to be the supreme solution. If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right, and urge self-restraint, a willingness to renounce such legal rights, sacrifice and selfless risk: it would sound simply absurd. One almost never sees voluntary self-restraint. Everybody operates at the extreme limit of those legal frames. An oil company is legally blameless when it purchases an invention of a new type of energy in order to prevent its use. A food product manufacturer is legally blameless when he poisons his produce to make it last longer: after all, people are free not to buy it.

I have spent all my life under a communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale but the legal one is not quite worthy of man either. A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man’s noblest impulses.

And it will be simply impossible to stand through the trials of this threatening century with only the support of a legalistic structure.

Rule of law can be a powerful equalizer for humanity, but it does not replace rule of morality. To walk the Fearless Path is to disregard the latitude given by legalification of certain behaviors and stay within the moral hedges that “the high level of human possibilities” provide us if we chose a means-based life.

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