A Libertarian Paradise in which You Could Do Whatever You Want and No One Could Hold You Responsible Because They Wouldn't Rape Their Child

Some time ago on his blog and more recently at Reason, Jim Henley proposed some corollaries to that well-beaten horse, the ticking time bomb. The ticking time bomb is that curious device about which all facts and details are known except its precise location, and its instrumental use is to prove that given such an unlikely scenario, one might be justified in pulling out a fingernail or two to place the last piece of the jigsaw, such as it were. With tongue somewhat in cheek, Jim suggested that the argument is flawed because in addition to the unlikelihood of the given scenario, it also takes as given that the sole remedy is torture. Why, he asked, couldn't you imagine a commensurate situation in which some other unlikely and equally distasteful means of acquiring information obtains? He gave some hyperbolic examples. He suggested that in the absence of arguments for a general allowance of anything, no matter how reprehensible, to prevent the deaths of millions, the ticking time bomb shows itself as little more than a post hoc justification for an otherwise unacceptable practice. Six actors in search of a play? One government in search of a rationale for breaking out the thumbscrews.

Today, Jim linked to a passenger on the good ship Conservitania, who harumphs, "The point is that because we do somethings [sic] and not others doesn't invalidate the things we do." In other words: We don't want to rape children (as Jim's hyperbole had it); we just want to torture people. Which is, of course, the very point Jim made in the first place, that the argument is not about preventing terrorist attacks but about broadly validating torture through the application of one equally unlikely and equally hyperbolic hypothetical. The Conservative suggests that in the absence of torture, all is anarchy. Eatcherheartout, Michel Foucault! Libertarians are not, by and large, anarchists, although anarchists increasingly hold more sympathetic places in our political imagination than conservatives. The libertarian wish is to limit as much as possible the capacity of the state to coerce behaviors from its citizens, and where coercion may be legitimate--preventing violent crime, say--we want to curtail the legitimate purview of acceptable coercive practices because we don't trust the disposition of powerful collective actors like governments toward individuals. That's the old "government of laws and not men." The law must apply equally to its enforcers, or else, by dint of the enforcers' greater power and resources, we arrive inevitably at tyranny.

The Conservative pulls out the familiar complaint about liberty. Why, if you let people do what they want, then they might do what they want! It's a recipe for Weimar decadence. Leben und leben lassen, sang the Emcee in "If You Could See Her."

But here's the thing. A society that doesn't torture isn't anarchy. It's a society that doesn't torture. The Conservative presumes against all evidence of every torturing regime in history that the government will only torture under those circumstances where it is strictly, materially necessary to prevent unimaginable catastrophe. That clearly is not the case. Even with torture nominally illegal, we saw our own government agents using it with increasing frequency under increasingly un-immediate conditions to prevent increasingly vague and obscure harms. The end result of legitimzing torture is hardly that the practice becomes rare. Rather than doing as Jim did and imagining equally heinous acts for the same stringent ticking time bomb scenario, I would ask: What if you knew that there was a bomb in the country somewhere, but didn't know where or when it would go off? Would you still be justified in torturing a man to find out? What if you strongly suspected, but had no actual proof that such a bomb existed? Would you be justified in torturing a man to find out? What if you reasonably suspected, but could in no way confirm, that a man had placed a nuke in the subway? Would you be justified in torturing him? What if you had a hunch? What if you saw it in a dream? The ticking time bomb predicates its moral justification on the prevention of greater harm, but the truth is that preventing harm isn't really related to the prior certainty that danger exists. If you only suspected a bomb, failed to torture the guy, and then the bomb went off . . . ? If we permit torture because we wish to prevent catastrophes, then logically we must conclude by torturing everyone.

I, for one, call dibs on the sling.