the role of consequences, comparison, and counterfactuals

8/10/2019 The Role of Consequences, Comparison, And Counterfactuals

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The Role of Consequences, Comparison, and Counterfactuals in Constructivist Ethical Thought

Kathryn Sikkink

Forthcoming in Moral Limit and Possibility in World Politics Edited by RichardPrice (Cambridge University Press !"ne #$$%&

First let me 'lead g"ilty to one o the charges that Price aims at

constr"ctivists) *ltho"gh + believe that some o my ,ork has demonstrated the

'ossibilities o moral change in ,orld 'olitics + have not e-'licitly artic"lated a

normative or 'rescri'tive 'osition o 'artic"lar changes as good) *nd this is the

case des'ite the act that my st"dents and my colleag"es get irritated ,hen + (not

in re."ently& bristle ,ith moral indignation) /he story o ,hy + and other

constr"ctivists have not engaged in normative theory is com'licated) + don0t

claim to "lly "nderstand it and + don0t ,ant to d,ell on it here b"t 1"st mention a

e, 'ossible e-'lanations) When + started ,orking on h"man rights in the late

23%$s the choice o to'ic alone ,as a s" iciently normative signal that + elt

obliged to s'end the rest o my time demonstrating that + ,as being rigoro"s in

my theory and method) Perha's + believed that my normative arg"ment ,as

im'licit and the discerning reader ,o"ld kno, ,here + stood) Maybe Frost is

correct and even constr"ctivists have concealed o"r ethical stances "nder a

disg"ise o (o"r o,n kind o & scienti ic ob1ectivity4 2 * ter over t,enty years o

2+ ,ish to thank Richard Price Robert Keohane Michael 5arnett Raymond 6"vall *nn /o,nsand 7enry Sh"e as ,ell as 'artici'ants in the 8anco"ver ,orksho' and 'artici'ants in thePolitical /heory Collo."i"m at the University o Minnesota or their hel' "l comments on earlier

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doing serio"s em'irical research to doc"ment key trends in ,orld 'olitics +0m

still annoyed at being categori9ed in a recent article by !ack Snyder and Leslie

8in1am"ri among those :idealists; ,ho don0t "nderstand the :'olitical realities;

o ,orld 'olitics) # +t is not the :idealist; charge that irritates b"t the notion that

,e don0t "nderstand 'olitical develo'ments in the ,orld)

5"t + also think that the o'tions or normative theori9ing that + 'erceived

as o'en to me ailed to ca't"re the essence o my enter'rise) +n other ,ords the

o'tions or normative theori9ing o ten seemed to ask me to leave my em'irical

hat at the door and since my em'irical research ,as 1"st as dear to me as my

ethics + re "sed) *s long as the a''eals to address ethics essentially said :sto'

being a researcher and become a moral 'hiloso'her ; it ,asn0t very attractive to

me)< Some +R scholars like *ndre, Linklater or Charles 5eit9 can combine the

t,o roles) = Personally + have neither the training nor the inclination to engage in

abstract moral 'hiloso'hy) +t is only no, ,ith a di erent kind o '"sh rom

Richard Price and a e, years o teaching a co"rse on +nternational Ethics and

>lobal Citi9enshi' "nder my belt that + eel able to begin to ind an a''roach to

dra ts o this 'a'er Mervyn Frost :* /"rn ?ot /aken@ Ethics in +R at the Millenni"m; Review of InternationalStudies 8ol) #= (6ecember 233%& 223)# !ack Snyder and Leslie 8in1am"ri :/rials and Errors@ Princi'le and Pragmatism in Strategies o

+nternational !"stice ; International Security 8ol) #%@< (Winter #$$<A$=&< /his is essentially ,hat Frost says ,hen he asks "s to start addressing the :classic ."estions o 'olitical ethics@ s"ch as :in ,hat ,o"ld a 1"st order consist4; :What is reedom ,hat orms o 'olitical a"thority are 1"st4; Frost :* /"rn ?ot /aken ; 2#3)= *ndre, Linklater The Transformation of Political Community: Ethical Foundation of the Post-Westphalian Era (University o So"th Carolina Press 233%&B Charles 5eit9 Political Theory and

International Relations (Princeton@ Princeton University Press 23 3&)

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normative theori9ing that combines my ethical concerns and my em'irical

commitments) Relatively e, scholars o international relations o er any

gen"ine g"idance abo"t ho, to chart this 'artic"lar 'ath) D

6es'ite the divide in ethical theori9ing bet,een deontological and

conse."entialist traditions + believe that ,hen ,e begin to combine ethical and

em'irical in."iry in the ,ork on many constr"ctivists the deontological and the

conse."entialist concerns are intimately linked) ne reason ,hy constr"ctivists

have oc"sed so clearly on care "l em'irical research is that + s"s'ect ,e believe

(at least im'licitly& that o ten ,e need to kno, something abo"t the em'irical

conse."ences o some norms in order to 1"dge their ethical desirability) 7ere +

s"ggest an interactive a''roach ,here ,e begin ,ith ethical commitments that

may g"ide the choice o a research to'ic and that the res"lts o research may in

t"rn sha'e "t"re ethical 1"dgment) My disc"ssion ,ill look at related ."estions

o conse."ences com'arison and co"nter act"als to try to o er some insights or

normative thinking rom the realm o em'irical constr"ctivism) + ,ill ill"strate my

arg"ments ,ith re erence to t,o c"rrent h"man rights debates@ the debate over

the U)S) "se o tort"re and the debate over the im'act o the increasing "se o

D See ho,ever Matthe, >ibney The Politics and Ethics of sylum: !i"eral #emocracy and the

Response to Refu$ees (Cambridge University Press #$$=&B Michael 5arnett Eyewitness to%enocide: The &nited 'ations and Rwanda (Cornell University Press #$$#&B !ose'h ?ye

'uclear Ethics (?e, Gork@ Free Press 23% & !)L 7ol9gre e and Robert ) Keohane (eds& (umanitarian Intervention: Ethical) !e$al) and Political #ilemmas (Cambridge@ CambridgeUniversity Press #$$<& Similar 'oints have been made by ?ye 23% and !)L) 7ol9gre e :/he 7"manitarian

+ntervention 6ebate ; in 7ol9gre e and Keohane (umanitarian Intervention) D$HD2)

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global h"man rights trials both o ,hich have been the oc"s on my c"rrent

research)

Some o the most im'ortant intellect"al disagreements + have had ,ith

very diverse individ"als in my li etime ,ere so dee'ly elt e-actly beca"se they

,ere sim"ltaneo"sly ethical and em'irical) 5"t + ,as o ten "nable even to

identi y this and to e-'lain cogently ho, + combined ethical 1"dgment ,ith the

res"lts o my em'irical research to arrive at strongly held 'ositions) /his essay

attem'ts a clari ication) + make re erences to e-am'les arg"ments made by ."ite

di erent ty'es o actors incl"ding the U)S) government and scholars b"t +

disting"ish bet,een the instr"mental actors in government and my val"ed

colleag"es ,ith ,hom + sometimes have disagreements) "r disagreements are

o ten not the 'rod"ct o di erent 'rinci'les ,e begin ,ith b"t o di erent

em'irical eval"ations o conse."ences) + this is the case o"r ethical debates

co"ld be more r"it "l i ,e ,ere clear abo"t the research and reasoning 'rocesses

thro"gh ,hich ,e arrive at o"r eval"ations o conse."ences)

<A> Principles and Consequences

Price asks in the o'ening essay ,hether constr"ctivism has anything

distinctive to o er in terms o normative theori9ing and the 'ractice o making

Kathryn Sikkink :U)S) Com'liance ,ith +nternational 7"man Rights La,; Pa'er 're'ared orthe ann"al con erence o the +nternational St"dies *ssociation March #$$D 7onol"l" 7a,aiiBKathryn Sikkink and Carrie 5ooth Walling :/he +m'act o 7"man Rights /rials in Latin*merica ; *ournal of Peace Research 8ol) ==@ = (#$$ &)

=



decisions and 1"dgments in ,orld 'olitics) + ,o"ld s"ggest that one distinctive

contrib"tion o any em'irically oriented researcher to ethical tho"ght is to reali9e

and em'hasi9e that ethical 1"dgment re."ires choices o 'rinci'les and eval"ation

o conse."ences in terms o those 'rinci'les) +n other ,ords to ans,er the

."estion :,hat to do4; ,e need to ask not 1"st :,hat is right; b"t also :,hat may

,ork; to bring abo"t o"tcomes consistent ,ith my 'rinci'les) % For e-am'le in

the case o h"man rights trials it is not eno"gh to ask :is it right or good to hold

h"man rights trials4 + also ,ant to kno, ,hat im'act h"man rights trials have on

act"ally 'rotecting h"man rights) /he ans,er to the second ."estion :What

im'act do h"man rights trials have4; co"ld a ect the ans,er to the irst ."estion

:is it right or good to hold h"man rights trials4; 6iscerning and eval"ating

conse."ences is an inherently com'arative and em'irical enter'rise and th"s

em'irically gro"nded scholars can make an im'ortant contrib"tion) + heartily

agree ,ith Price0s arg"ment that normative theori9ing can not esca'e some degree

o em'irical descri'tion) Constr"ctivists and other em'irically oriented scholars o

,orld 'olitics can contrib"te to thinking researching and ,riting clearly abo"t

conse."ences and then link this ,ork on conse."ences to tho"ght "l normative

1"dgment) /his research on conse."ences doesn0t have to be abo"t ca"sality it

co"ld also be a constit"tive theori9ing or abo"t conditions o 'ossibility b"t it

needs to be e-'licit and 'recise in order to be 'ers"asive)

% + am indebted to Richard Price or this 'artic"lar orm"lation)

D



+n order to ,eigh conse."ences ,e m"st irst have s'eci ied ,hat

'rinci'les ,e intend to "se to eval"ate ,hich conse."ences are most val"ed and

bene icial) + 'ro'ose to start ,ith international h"man rights 'rinci'les) /h"s

,hen + consider conse."ences my ."estion ,ill be@ ,hat are the conse."ences

or h"man rights as de ined in c"rrent h"man rights la,4 3 *martya Sen

'rovides a model o s"ch an e ort to link a rightsHbased a''roach ,ith a concern

or conse."ences in his :goal rights system); For Sen to make a normative

eval"ation he both 'ro'osed to incl"de rights in the goals themselves

(deontological criteria& and to eval"ate o"tcomes based on ,hich rights are

"l illed and not "l illed (conse."entialist criteria&) 2$ 7is a''roach is di erent

rom a classic "tilitarian a''roach ,hich is interested in overall ,el are and does

not 'rivilege the act"al 'rotection o rights as o''osed to other ,el are goals)

Sen th"s overcomes one o the main criticisms o "tilitarianism I :that it cannot

take rights serio"sly eno"gh); 22 7e re ers to this as a rightsHconse."ence system

beca"se the "l illment o rights is the ma1or goal o the system) +t is not a "lly

conse."entialist system b"t one that blends rights goals and concern ,ith rights

"l illment) Sen in t"rn "ses this a''roach as the basis o his :ca'abilities

3 7ere + clearly 'art 'aths ,ith "tilitarians and most conse."entialists ,ho have a ,el arist ratherthan a rights based a''roach to eval"ating conse."ences)2$ *martya Sen :Rights and *gency ; in Conse+uentialism and Its Critics Sam"el Sche ler (ed&( - ord University Press 23%%& 2% H##<)22 William 7) Sha, Contemporary Ethics: Ta,in$ ccount of &tilitarianism ( - ord@ 5lack,ellP"blishers 2333& 2%D)



a''roach to develo'ment ; an a''roach that has also been artic"lated in a slightly

di erent ,ay by Martha ?"ssba"m )2#

+ share ,ith Sen and ?"ssba"m the idea o combining rightsHbased

'rinci'les ,ith an eval"ation o the "l illment o rights as a starting 'oint or my

normative theori9ing) 5"t both Sen and ?"ssba"m begin as i the ,orld ,ere a

tab"la rasa on ,hich they co"ld constr"ct the set o 'rinci'les o their choice) *s

m"ch as + generally admire the ,ork o Sen and ?"ssba"m + have al,ays been

'"99led abo"t ,hy they believe that they m"st start rom scratch in inventing their

central list o rights or ca'abilities) 2< Sen in his early disc"ssion o his 'romising

goal rights system seems to disregard e-isting h"man rights la, altho"gh he

re ers to h"man rights more directly in his later ,ork) 2=

/o the em'irically oriented researcher ho,ever it may seem ill"sory to

act as tho"gh the modern ,orld ,eren0t dense ,ith e-isting norms and la,s and

to 'retend that ,e co"ld design the ideal code ,e co"ld imagine) + o"r starting

'oint is a :rightsHconse."ence system ; + 're er to start ,ith e-isting h"man rights

'rinci'les embodied in international h"man rights la, es'ecially the +nternational

Covenant on Civil and Political Rights and the +nternational Covenant on

2# Martha C) ?"ssba"m Woman and (uman #evelopment: The Capa"ilities pproach (Cambridge@ Cambridge University Press #$$$&)2<

?"ssba"m says almost an aside that :this ca'abilities a''roach as + conceive them have a veryclose relationshi' to h"man rights as "nderstood in contem'orary international disc"ssion) +ne ect they cover the terrain covered by both the soHcalled irstHgeneration rights ('olitical andcivil& and the soHcalled second generation rights (economic and social rights&); ?"ssba"m Womanand (uman #evelopment) 3 )2= See or e-am'le *martya Sen :Freedoms and ?eeds ; The 'ew Repu"lic 2$A2 !an"ary 233=<2H<%)



Economic Social and C"lt"ral Rights) When one set o h"man rights 'rinci'les

come into con lict ,ith another + 'rioriti9e the nonHderogable rights o the

Covenant on Civil and Political Rights (+CCPR& es'ecially the right to li e and

reedom rom slavery and tort"re) /he nonHderogable rights ,ill also be those

'rinci'les that + hold absol"tely ,itho"t regard to any in ormation abo"t

conse."ences) /h"s in my rightsHconse."ence system there ,ill be a small

hand "l o rights that ,ill not be s"b1ect to any consideration o conse."ences or

e ectiveness) + 1"sti y the 'riority on the nonHderogable rights in a co"'le o

,ays) First the nonHderogable rights cla"se comes as close as + can ind to

e-'ressing a gen"ine international consens"s abo"t ,hat rights are most

im'ortant) /he international comm"nity ,hen dra ting one o its central h"man

rights doc"ments decided that there ,ere a small hand "l o rights that co"ld not

be '"t aside "nder any circ"mstance) /his seems like a good starting 'lace or

normative arg"ment) Starting ,ith act"ally e-isting international norms dra ted

thro"gh e-ha"stive debate and cons"ltation among many states has the virt"e o

being less ethnocentric than having the analyst s"bstit"te her o,n normative

criteria)

ther colleag"es ,ill say that this starting 'lace is also the crystalli9ation

o 'o,er relations rom cent"ries o legal develo'ments) /hat is ,itho"t do"bt

the case) 5"t recent close st"dies o the dra ting 'rocesses o the Universal

6eclaration o 7"man the +CCPR and the +nternational Covenant o Economic

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Social and C"lt"ral reveal that delegates rom co"ntries re'resenting diverse

c"lt"ral 'olitical and theological 'ositions debated virt"ally every 'hrase in these

doc"ments in h"ndreds o cons"ltations and meetings) 2D Secondly by their

rati ication o the +CCPR incl"ding its nonHderogable rights cla"se an even ,ider

range o co"ntries has e-'ressed their s"''ort or these 'rinci'les and norms) So

today over 2D$ co"ntries have signaled their s"''ort or these norms by the

vol"ntary rati ication o the +CCPR incl"ding over ortyH ive * rican co"ntries

,hich ,ere the single largest gro"' not 'resent at the dra ting stage since most

,ere still colonies at that time) Finally tho"sands o nonHgovernmental h"man

rights organi9ations re'resenting citi9ens rom aro"nd the ,orld have also

debated and embraced these norms) From a 'roced"ral 'oint o vie, the

deliberative 'rocesses that ,ent into the constr"ction o these h"man rights norms

,ere more vol"ntary and more 'artici'atory than many other international

'rocesses) + do not claim that the dra ting o these conventions took 'lace "nder

the conditions o an ideal s'eech act or that this is a concrete em'irical and

international analog"e to a dialogic ethic) 5"t beca"se o the 'roced"res thro"gh

,hich these norms ,ere develo'ed they 'rovide a more legitimate so"rce o

general 'rinci'les than any + or any other individ"al or gro"' o researchers co"ld

2D See !ohannes Morsink The &niversal #eclaration of (uman Ri$hts: ri$ins) #raftin$ and

Intent (University o Pennsylvania Press 2333&B Mary *nn >lendon World .ade 'ew: Eleanor Roosevelt and the &niversal #eclaration of (uman Ri$hts (?G@ Random 7o"se #$$2 /0 Pa"l>ordon La"ren ) The Evolution of (uman Ri$hts: 1isions Seen (Philadel'hia@ University oPittsb"rgh Press 233%&B Mary *nn >lendon :/he Forgotten Cr"cible@ /he Latin *merican+n l"ence on the Universal 7"man Rights +dea ; (arvard (uman Ri$hts *ournal 8ol) 2 (S'ring#$$<&)

3



invent) Second in the c"rrent 'olitical climate it ,o"ld be di ic"lt to organi9e

any e."ally 'artici'atory 'rocess o dra ting ne, h"man rights norms nor co"ld

,e be certain that the res"lt ,o"ld be as strong) /h"s there are both 'roced"ral

and 'ragmatic gro"nds or "sing 'rinci'les in e-isting h"man rights la, as a

benchmark against ,hich to meas"re conse."ences) *s !ack 6onnelly has

arg"ed there is no, an :overla''ing international 'olitical consens"s; aro"nd the

norms o the core h"man rights treaties) 7e clari ies that this is an :overla''ing

(rather than com'lete& and 'olitical (rather than moral or religio"s&

consens"sJ); 2 ?"ssba"m "ses the same term overla''ing consens"s dra,n

rom Ra,ls to characteri9e her list o central h"man ca'abilities) 2

+n the introd"ctory cha'ter Price asks "s to de ine and de end o"r

"nderstanding o 'rogress in international relations) Follo,ing the disc"ssion

above + de ine as 'rogress an im'rovement in the en1oyment o any o the h"man

rights listed in international h"man rights la, as com'ared to an earlier 'eriod i

s"ch im'rovement does not ca"se a commens"rate regress in other rights or in

other 'laces) + ,ill be 'artic"larly attentive to s"stained im'rovement o the nonH

derogable rights) /his de inition is consistent + believe ,ith the ethical intent o

the a"thors ,ho dra ted h"man rights la, and those states and ?> s that later

embraced it) +t is th"s my o,n de inition and an attem't to ca't"re the ethical

2 !ack 6onnelly ) &niversal (uman Ri$hts in Theory and Practice (# nd ed& (+thaca@ CornellUniversity Press #$$<& =$)2 ?"ssba"m Woman and (uman #evelopment D)

2$



,orld o the actors involved) /his de inition re."ires "s to cons"lt em'irical

research to make ethical 1"dgment as ,e m"st be able to have some meas"re o

the en1oyment o rights and kno, ,hat changes have occ"rred rom one 'eriod to

another)

We co"ld in."ire "rther abo"t the so"rces o this international consens"s

aro"nd certain h"man rights) + am al,ays tem'ted to make more o"ndational

claims or these norms) + believe that nothing does greater and more long lasting

harm to 'eo'le than ,hen other 'eo'le intentionally and directly in lict bodily

harm on them) /he bonds o tr"st on ,hich h"man comm"nities are o"nded are

s"ndered most com'letely by the direct and intentional in licting o 'ain and

s" ering o one h"man on another) Research on PostH/ra"matic Stress or

e-am'le sho,s that h"man ind"ced tra"mas rom tort"re or child ab"se are more

severe and more di ic"lt to recover rom than tra"ma 'rod"ced by accidents or

nat"ral disasters) + 'ersonally believe that this small core o basic rights is

intrinsically a''ealing to many individ"als) +t is 'er ectly acce'table or 'olitical

scientists (incl"ding constr"ctivists& to s"ggest that all h"mans have an innate

drive or 'o,er or ,ealth) 5"t to s"ggest that many h"mans intrinsically ind

certain h"man rights ideas a''ealing is someho, more ."estionable) Get it does

not strike me as 'artic"larly odd to s"ggest that almost everyone ,o"ld 're er to

be alive than dead ree than im'risoned sec"re than tort"red ed than h"ngry)

Core h"man rights norms have resonated so 'ro o"ndly in the ,orld in 'art

22



beca"se o this intrinsic a''eal) +t is s"r'rising to ,atch ho, ."ickly h"mans

even those embedded in c"lt"ral scenarios that tell them other,ise come to

believe that they are entitled to something better)

?evertheless my arg"ment does not rest nor de'end on s"ch o"ndational

claims) +t is s" icient or o"r '"r'oses that many states gro"'s and individ"als

thro"gh an e-tended 'rocess o international negotiation m"t"ally arrived "'on a

set o international h"man rights norms and that since that time virt"ally all o

these states and many more have "rther endorsed s"ch norms thro"gh the

vol"ntary rati ication o the relevant treaties) /his overla''ing international

'olitical consens"s is then the starting 'oint or my disc"ssion o eval"ation o

conse."ences)

/he 'roblem ,ith starting ,ith the overla''ing 'olitical consens"s o

e-isting h"man rights la, as a basis or ethical 1"dgment is that it ,o"ld a''ear to

e-cl"de ne, h"man rights norms in the 'rocess o emergence) + can take this

'osition com ortably in #$$ ,riting in an atmos'here dense ,ith international

h"man rights norms b"t ,hat ,o"ld one have ,ritten in 23=2 be ore these norms

,ere established4 2% + believe that em'irical researchers ,riting abo"t ethics ,ill

,ant to sit"ate themselves in a 'artic"lar historical conte-t) + + ,ere ,riting in

23=2 + ,o"ld have to ,rite something com'letely di erent b"t like,ise + sho"ld

not ,rite in #$$ as i + ,ere in 23=2) 5"t the dee'er 'oint is that in o"r c"rrent

2% + am indebted to Raymond 6"vall or raising this s'eci ic ."estion and the broader concern)

2#



'eriod there are many ne, norms in the 'rocess o emergence) 7o, do ,e

a''reciate this trans ormational 'rocess o the emergence o ne, norms4 M"ch

o my em'irical research has oc"sed on the emergence o ne, norms and +

believe that this ,ill contin"e to be an aven"e or 'romising ne, research) *s an

analyst + have arg"ed that the 'rimary ,ay that normative change has ha''ened

in thro"gh the advocacy o norm entre'rene"rs) 23

/he '"r'ose o choosing e-isting h"man rights la, as a starting 'oint or

ethical analysis is not to e-cl"de or denigrate movements 'ro'osing ne, norms)

5"t + ,o"ld treat ne, norms as ethically and em'irically distinct rom e-isting

norms beca"se they do not yet re'resent any international consens"s) Ethically

they re'resent a 'ro'osal or normative change by one gro"' that has not yet been

broadly endorsed) /he challenge or any norm entre'rene"r as they kno, all too

,ell is to seek to 'ers"ade other actors to create an international consens"s)

Em'irically the dynamics o ne, norms are di erent rom those o ,ell

established norms) #$ /o treat an emergent norm as i it ,ere hard la, is an

em'irical mistake) Emergent norms have di erent 'ro'erties 'rovoke di erent

res'onses im'ose di erent obligations and re."ire di erent kinds o ,ork on the

'art o advocates)

23 Margaret Keck and Kathryn Sikkink ctivists "eyond 2orders (+thaca@ Cornell UniversityPress 233%&)#$ Martha Finnemore and Kathryn Sikkink :+nternational ?orm 6ynamics and Political Change ;

International r$ani3ation) 8ol) D#@= (*"t"mn 233%& %% H32

2<



/he most com'licated ethical and 'olitical dilemmas in international

'olitics involve cases ,here some o these basic h"man rights norms come into

con lict ,ith one another or ,ith other core norms and val"es o the international

system) For e-am'le debates over h"manitarian intervention are so di ic"lt in

'art beca"se one has to ,eigh the 'ossibility o 'reventing genocide or mass

h"man rights violations against other key norms against ,ar and intervention)

Many o these ethical debates can not be resolved ,ith re erences to em'irical

research) 5"t other debates that a''ear to be intractable debates over con licts o

'rinci'les are act"ally debates over di erent 'redictions abo"t conse."ences)

S"ch debates can be addressed r"it "lly altho"gh rarely resolved ,ith re erence

to em'irical research abo"t conse."ences)

/he most attractive version o conse."entialism or the em'irically

minded researcher is :r"le conse."entialism); Conse."entialism is "s"ally

divided bet,een its act and r"le variants@ act conse."entialism holds that the

conse."entialist criterion is to be a''lied directly to 'artic"lar acts ,hile r"le

conse."entialism a''lies to general r"les o 'rinci'les) Peo'le sho"ld com'ly

,ith r"les i their general observance ,ill 'rod"ce the best conse."ences even i

in a 'artic"lar circ"mstance s"ch a r"le might not lead to the best conse."ence) #2

So a r"leHconse."entialist ,hen ,ondering abo"t the morality o some cond"ct

#2 Sha, Contemporary Ethics )

2=



asks :,hat ,o"ld the conse."ences be i everyone elt ree to do that4; ## /o

ill"strate the di erence ,ith regard to the case o tort"re actHconse."entialism

,o"ld ask abo"t the conse."ences o tort"ring a 'artic"lar individ"al and base a

decisions on those) R"le conse."entialism ,o"ld ask instead ,hat ,o"ld be the

conse."ences i all co"ntries elt ree to tort"re4 +n t"rn some r"le

conse."entialists disting"ish bet,een 'rimary and secondary r"les ,hich may be

related to the distinction + am making here bet,een nonHderogable rights and

other rights) #< *s ,e can see r"leHconse."entialism narro,s the distance bet,een

conse."entialist and agentHcentered a''roaches as both oc"s on the need or

codes or 'rinci'les)

<A> Evaluating Consequences

/he h"ge 'hiloso'hical debate abo"t conse."entialism and the closely

related school o "tilitarianism has not hinged on ,hat ,o"ld seem to be the

glaring iss"e or any em'irical researcher) 7o, can ,e kno, ,ith any

con idence abo"t conse."ences4 * large body o (conse."entialist& normative

tho"ght is based on the notion that morality de'ends on ,hat ,e can reasonably

e-'ect to ha''en) 5"t most 'hiloso'hers aren0t in the b"siness o trying to ind

o"t ,hat ,e can reasonably e-'ect to ha''en )#= /he task is le t to em'irical## 5rad 7ooker Ideal Code) Real World: Rule-conse+uentialist Theory of .orality ( - ord@Clarendon Press #$$$&)#< Sha, Contemporary Ethics4#= For e-am'le Sha, arg"es that :most e-'ected o"tcome "tilitarians; think abo"t conse."encesas :calc"lated by a reasonable and ,ell in ormed agent based on the available evidence); William

2D



researchers to ill the ga') 5"t having illed the ga' ,e then need to reconnect

o"r concl"sions back to their normative im'lications)

+n both cases disc"ssed in this 'a'er that o the debate over the "se o

tort"re by the U)S) government and the iss"es o h"man rights trials the em'irical

."estion o ,hat ,e can reasonably e-'ect to ha''en has im'ortant ethical

im'lications) +n a recent article on h"man rights and ,ar crimes trials !ack

Snyder and Leslie 8in1am"ri s"ggest that "nder certain circ"mstances s"ch trials

can lead to more atrocities s"stain con lict and "ndermine democracy) #D + they

are correct abo"t ,hat ,e can reasonably e-'ect rom h"man rights trials a

conse."entialist reading ,o"ld say that co"ntries should not carry o"t s"ch trials)

+ to the contrary as Carrie 5ooth Walling and + have arg"ed there is little

em'irical s"''ort or the arg"ment that trials in general lead to more atrocities

s"stain con lict or "ndermine democracy and in some cases trials a''ear to be

associated ,ith better h"man rights 'ractices then the normative e."ation is

di erent)#

/his may hel' clari y ,hy or me care "l em'irical research "sing the best

tools at o"r dis'osal is not 1"st a 'ro essional obligation b"t also an ethical one)

E-actly beca"se the ethical and normative ."estions are so im'ortant and

beca"se rom my 'oint o vie, at least most ethical 1"dgments re."ire some

Sha, Contemporary Ethics) <$) /his descri'tion so"nds like a re erence to an em'iricalresearcher)#D Snyder and 8in1am"ri :/rials and Errors);# Sikkink and 5ooth Walling :/he +m'act on 7"man Rights /rials in Latin *merica);

2



kno,ledge abo"t reasonable e-'ectations abo"t conse."ences good research is

necessary or ethical 1"dgment)

/his then takes "s to the ."estion that Price 'oses in his introd"ctory

essay) What sho"ld ,e do i :constr"ctivist analyses lead "s to identi y that ,hat

a''ear 'rima acie to be 'rogressive initiatives are themselves revealed to come at

the 'rice o concomitant regress in other areas4; Constr"ctivist analysis that

'oints to ethically 'rogressive change in ,orld 'olitics and constr"ctivist analysis

that 'roblemati9es s"ch 'rogress by talking abo"t concomitant regress in other

areas is research abo"t conse."ences) +t is mainly historical and com'arative

research that tries to identi y the conse."ences o key changes and contin"ities in

,orld 'olitics) *s s"ch this kno,ledge o conse."ences sho"ld 'ermit both

normative 1"dgment abo"t the 'ast and g"idance or action in the "t"re) 5eca"se

s"ch historical research is the best g"ide ,e have or ,hat ,e can reasonably

e-'ect in the "t"re it m"st go one ste' "rther than sim'ly 'ointing to 'rogress

andAor regress) Research abo"t conse."ences needs to try to eval"ate the relative

im'ortance and ,eight o s"ch 'rogress and regress) +t is not eno"gh sim'ly to

say that there are both costs and bene its o di erent changes) +n order to make an

ethical 1"dgment abo"t action in the "t"re ,e need to have an idea o the relative

balance o the di erent conse."ences or the conditions "nder ,hich certain

bene its or costs ,ill be more likely)

<A> Trials and Consequences

2



Let me ill"strate some o these kinds o arg"ments ,ith e-am'les rom

c"rrent research on international oreign and domestic h"man rights trials) Ellen

L"t9 and + have arg"ed that since the 23%$s there has been a dramatic ne, trend@

states thro"gho"t the ,orld are beginning to hold individ"als incl"ding heads o

state acco"ntable or 'ast h"man rights violations) We have labeled this trend as

:the 1"stice cascade); # /he ."estion that concerns "s here is@ given that s"ch

trials are occ"rring ,ith considerable re."ency ,hat im'act or conse."ences do

they have4 Snyder and 8in1am"ri arg"e that the conse."ences can be dangero"s

beca"se states that '"rs"e 1"stice or 'ast h"man rights ab"ses may destabili9e

their societies and s"stain con lict) /here ore these scholars advise that

amnesties are more e ective at ending atrocities than trials) #%

/hese are em'irical claims) /o address them Carrie 5ooth Walling and +

created a ne, data set o the main transitional 1"stice mechanisms@ tr"th

commissions and domestic oreign and international trials or 'ast h"man rights

violations) /his ne, data both de initively demonstrates the e-istence o the

1"stice cascade and allo,s "s to e-'lore em'irical ."estions abo"t the im'act o

trials) #3 "r initial research indicates that at least in Latin *merica ,here over

one hal o domestic h"man rights trials in the ,orld have occ"rred h"man rights

# Ellen L"t9 and Kathryn Sikkink :/he !"stice Cascade@ /he Evol)"tion and +m'act o Foreign7"man Rights /rials in Latin *merica ; Chica$o *ournal of International !aw 8ol) #@2 (S'ring#$$2& 2H<=)#% Snyder and 8in1am"ri :/rials and Errors;B see also Ste'hen Krasner :* ter Wartime *trocitiesPolitics Can 6o More /han the Co"rts ; International (erald Tri"une) 2 !an"ary #$$2#3

2%



trials do not make the h"man rights sit"ation ,orse and in some sit"ations

h"man rights trials are associated ,ith an im'rovement in the h"man rights

sit"ation)

* '"rely deontological a''roach might say that 'roviding 1"stice or

victims o h"man rights violations and acco"ntability or 'er'etrators is s"ch an

im'ortant 'rinci'le that co"ntries sho"ld 'roceed ,ith trials regardless o the

conse."ences) While + "nderstand and res'ect that ethical arg"ment +0m not

,illing to make it mysel ) + agree that 'roviding 1"stice and acco"ntability are

,orthy goals that sho"ld be '"rs"ed) 5"t acco"ntability or 'ast h"man rights

violations does not orm 'art o the core :non derogable rights; o the h"man

rights regimes) *t best there is an emerging norm that states have an obligation

or d"ty to '"nish individ"als that carry o"t mass atrocities <$ b"t this is not yet a

clear r"le o international h"man rights la,) +n this case + believe that kno,ledge

o e-'ected conse."ences is im'ortant or hel'ing make hard ethical choices)

/his is not 1"st a sim'le ."estion o ,hether trials are good or bad)

Em'irical research can also hel' "s "nderstand "nder ,hat conditions h"man

rights trials co"ld im'rove h"man rights and "nder ,hat conditions they might

make them ,orse) So or e-am'le Snyder and 8in1am"ri look at <= cases o

civil ,ars) /hey 'rovide evidence that that in some civil ,ar sit"ations an

immediate demand or trials co"ld "ndermine 'eace negotiations and th"s s"stain

<$ !"an Mende9 :+n 6e ense o /ransitional !"stice ; Transitional *ustice and Rule of !aw in 'ew #emocracies *) !ames Mc*dams (ed& (?otre 6ame@ University o ?otre 6ame Press 233 & D)

23



con lict and that amnesties in these sit"ations co"ld lead to con lict resol"tion)

/his involves an ethical tradeHo @ 'eace vs) 1"stice and acco"ntability)

5eca"se 'revio"s ."antitative em'irical research sho,s that civil ,ar is

closely correlated ,ith h"man rights violations <2 it may be an ethically 1"sti iable

trade o to o er amnesties in order to sec"re 'eace settlements) 5"t Snyder and

8in1am"ri don0t limit themselves to generali9ing abo"t civil ,ar cases b"t instead

make broad and s,ee'ing statements abo"t the im'act o h"man rights trials)

Since Snyder and 8in1am"ri derive im'ortant moral theoretical and

'olicy im'lications rom their research their ail"re to be more care "l abo"t the

generali9ations they make calls into ."estion their ethical 1"dgments) /h"s +

believe it is 'remat"re to dra, ethical im'lications rom this ,ork "ntil there is

"rther em'irical veri ication o their indings) Carrie 5ooth Walling and + have

to date also only oc"sed on a s"bset o cases ,ith h"man rights trials I those in

Latin *merica) /h"s ,e can also not yet make generali9ations to the entire

"niverse o cases and m"st consider the 'ossibility that there is some orm o

Latin *merican :e-ce'tionalism; that makes h"man rights trials have a more

'ositive e ect in Latin *merican than else,here)

/his is one ,ay in ,hich 'rinci'led based arg"ments and conse."entialist

arg"ments might be combined) Partic"larly in cases ,here im'ortant and val"ed

<2 See or e-am'le Ste'hen Poe C) ?eal /ate and Linda Cam' Keith :Re'ression o 7"manRights to Personal +ntegrity Revisited@ * >lobal CrossH?ational St"dy Covering the Gear 23 H233< ; International Studies 5uarterly (2333& #32H<2<)

#$



'rinci'les are at stake the 'res"m'tion sho"ld be in avor o the 'rinci'le and

only very s"bstantial and ,ell established evidence against the 'rinci'le ,o"ld be

s" icient to lead "s to call it into ."estion) So or e-am'le the 'rinci'le o

acco"ntability or 'ast h"man rights violations is s" iciently ,ell established that

in order to s"s'end it ,e ,o"ld ,ant to see very 'ers"asive research that it is

co"nter'rod"ctive) + ho,ever very 'ers"asive "t"re research act"ally con irms

the Snyder and 8in1am"ri hy'othesis that trials lead to more atrocities + ,o"ld

reeval"ate my ethical s"''ort or h"man rights trials)

<A> Weighing Consequences

Resolving em'irical ."estions abo"t conse."ences is im'ortant or

making normative 1"dgments abo"t desirable 'olicies) +t is not only a ."estion o

determining ,hich 'olicies are good and bad b"t rather s'eci ying the conditions

"nder ,hich di erent 'olicies can lead to better or ,orse o"tcomes) /o go back to

Price0s ."estions + believe that constr"ctivists ,ho raise ."estions o 'rogress

and regress in ,orld 'olitics not only need to eval"ate the 'rogressive vers"s the

regressive o"tcomes o 'olicies b"t also try to s'eci y more care "lly the

conditions "nder ,hich a more 'rogressive or less 'rogressive o"tcome is likely)

M"ch im'ortant ,ork by critical constr"ctivists has oc"sed e-actly on the

"nantici'ated conse."ences o acts and 'olicies) *nn /o,ns in her contrib"tion

to this vol"me or e-am'le has alerted "s that one o the conse."ences o gender

e."al disco"rses and 'olicies in S,eden has been to "rther stigmati9e and

#2



marginali9e immigrant 'o'"lations) 5"t rather than re1ecting gender e."ality

str"ggles as a res"lt she then goes on to incor'orate these e-cl"sionary e ects :in

the moral calc"l"s g"iding action); <#

S"ch a ,eighing o conse."ences is neither easy nor straight or,ard) +t

o ten involves co"nter act"al arg"ments abo"t the 'ast and also may im'ly some

kind o 'rediction abo"t the "t"re or ,hat some 'eo'le have called a : "t"re

co"nter act"al); << Since 'redictions abo"t the "t"re can be notorio"sly "ncertain

individ"als can di er in their claims abo"t conse."ences and s"ch di erences are

di ic"lt to resolve) >ood 'redictions abo"t the "t"re rely on the best research

abo"t the 'ast) Even ,ith care "l intentions 'redictions ,ill be inacc"rate

beca"se the very nat"re o the social ,orld makes 'ossible the "nantici'ated as

h"mans learn and change their ,orld) +t co"ld be that any constr"ctivist ,o"ld be

so distr"st "l o 'rediction that they dismiss any e ort at conse."entialist

normative theori9ing) +ndeed one im'ortant contrib"tion o constr"ctivism has

been demonstrating e-actly ho, some change that ,as seen as :"nimaginable;

'revio"sly co"ld become a ne, norm in the 'resent)

5"t + ,ant to arg"e that ,e can0t avoid some kind o e orts to "nderstand

the "t"re) Robert Co- (."oted in Price0s introd"ctory essay& disc"sses normative

choice b"t ,o"ld limit :the range o choice to alternative orders ,hich are32

*nn /o,ns (this 8ol"me&<< Steve Weber :Co"nter act"als@ Past and F"t"re ; in Phili' /etlock and *aron 5elkin editorsCounterfactual Thou$h E6periments in World Politics: !o$ical) .ethodolo$ical) and

Psycholo$ical Perspectives (Princeton@ Princeton University Press 233 & # %H#%%)

##



easible trans ormations o the e-isting ,orld); 5"t ho, do ,e kno, ,hat is

easible4 + ,o"ld arg"e ,e kno, ,hat is easible rom the research abo"t ho,

change has occ"rred in the 'ast) +n other ,ords like the lang"age or not ,e

kno, ,hat is easible by making :'redictions; abo"t the "t"re based on o"r best

research on the 'ast) Call it :'rediction; or a "t"re co"nter act"al or call it o"r

best h"nches abo"t ,hat co"ld ha''en + ,ill arg"e that ,e can0t esche,

com'letely conse."entialist theori9ing beca"se disc"ssions o conse."ences are

"bi."ito"s in 'olitical li e)

+ 'lace this em'hasis on the im'ortance o conse."ences "lly a,are that

,e are on dangero"s gro"nd) Conse."entialist ethical arg"ments are more

s"s'ect beca"se they lend themselves + believe to more mani'"lation)

Co"nter act"al arg"ments are o ten o'en to mani'"lation beca"se 'eo'le can

'ro'ose ar etched or im'robable "t"re co"nter act"als and they are di ic"lt to

o''ose beca"se it is 1"st my co"nter act"al against yo"rs) + ,ill arg"e that this is

e-actly ,hat is ha''ening ,ith the U)S) government 1"sti ication or the "se o

tort"re) 5"sh *dministration o icials 'osed an im'robable b"t rightening

co"nter act"al I :i ,e don0t tort"re ,e ,ill s" er another terrorist attack ; and

th"s gained s"''ort or their 'olicy)

!ose'h ?ye has similarly 'ointed to the dangers o conse."entialism in his

disc"ssion o n"clear ethics) : nce the ends 1"sti y the means the dangers o

sli''ing into a morality o convenience greatly increase) /o calc"late all the

#<



conse."ences o one0s actions is im'ossible and ,hen the calc"lation is "99y

ab"se is 'ossibleJ) *nd given h"man 'roclivities to ,eight choices in o"r o,n

avor and the di ic"lties o being s"re o conse."ences o com'le- activities

im'artiality may be easily lost in the absence o r"les); 6es'ite these misgivings

?ye still concl"des that a n"clear ethics m"st incl"de consideration o motives

means and conse."ences) <=

+ also believe that to cede the gro"nd o disc"ssing conse."ences ham'ers

one0s ability to 'artici'ate in 'olitical disc"ssions incl"ding normative and ethical

ones) So or e-am'le ,e co"ld res'ond to the U)S) government0s

conse."entialist 1"sti ication o tort"re ,ith a '"rely deontological arg"ment by

saying that it is al,ays ,rong to tort"re regardless o the conse."ences) 5"t that

,o"ld grant the 'la"sibility in the arg"ment abo"t the conse."ences o tort"re) +

,o"ld 're er that ,e both stress 'rinci'les and engage in the most rigoro"s debate

'ossible abo"t conse."ences) So ho, do ,e go abo"t ,eighing conse."ences4 +

believe that there are o"r 'artic"larly 'rominent orms o reasoning o ten "sed to

eval"ate conse."ences@ 2& mental sim"lations o co"nter act"al ,orldsB #& :'"re;

co"nter act"alsB <& com'arison to the idealB and =& em'irical com'arison) + ,ill

disc"ss each o these orms o reasoning belo,)

<B> our !inds of reasoning commonl" used to evaluate consequences#

<C> $ental simulations of counterfactual %orlds#

<= ?ye 'uclear Ethics 23)

#=



+n their disc"ssion o ive ty'es o co"nter act"als /etlock and 5elkin

highlight one ty'e that is most relevant to normative theori9ing) /hey call it the

:mental sim"lation o co"nter act"al ,orlds; and 'oint o"t that :asking 'eo'le to

imagine and ,ork thro"gh the detailed im'lications o hy'othetical ,orlds is a

'o,er "l ed"cational and rhetorical tool); +n 'artic"lar s"ch sim"lations can

:reveal do"ble standards in moral 1"dgments ; and :"n,anted biases s"ch as the

certainty o hindsight); <D + ,o"ld s"ggest that s"ch mental sim"lations are even

more 'ervasive in 'hiloso'hical tho"ght than /etlock and 5elkin s"ggest and

they are not 1"st im'ortant or revealing do"ble standards b"t or clari ying

normative tho"ght more generally) Ra,ls "sed the veil o ignorance as s"ch a

mental sim"lation) nora 0?eil "sed the hy'othetical o the li eboat to disc"ss

the res'onsibility to avoid "n1"sti iable deaths in amine) <

Co"nter act"al mental sim"lations are "se "l tools as long as ,e acce't

them or ,hat they are HH made "' scenarios that don0t corres'ond necessarily to

anything in the real ,orld) /he danger comes ,hen 'eo'le t"rn the

co"nter act"al sim"lation into a conse."entialist ca"sal story abo"t the ,orld)

7ere is ,here care "l attention to the best 'ossible em'irical research on the

,orld is cr"cial to co"nteract arH etched and dangero"s co"nter act"als)

<D /etlock and 5elkin (eds& Counterfactual Thou$ht E6periments in World Politics) 2<H2=)< nora 0?eill :Li eboat Earth ; International Ethics edited by Charles 5eit9 et) al)(Princeton@ Princeton University Press 23%D& # D)

#D



So or e-am'le the 5"sh administration has engaged in this kind o

co"nter act"als ,ith regard to tort"re) /he entire ticking time bomb scenario is a

ty'e o co"nter act"al morality tale o ten "sed by 'hiloso'hers to hel' 'eo'le

think thro"gh di ic"lt ethical tradeo s and the logic o o"r reasoning) /he tale

goes that there is a ticking time bomb some,here and the government has

arrested a 'erson ,ho kno,s abo"t it) + ,e tort"re him ,ill he tell "se ,here the

bomb is ,hich allo,s "s to save the lives o tho"sands o 'eo'le) >iven this

scenario most 'eo'le ,ill choose tort"re) + ,e acce't the notion o this kind o

co"nter act"al as hel'ing clari y inconsistencies in moral r"les its :lesson; is that

,e don0t believe in a com'lete 'rohibition o tort"re beca"se there is a scenario

,here ,e ,o"ld 1"sti y it) /he 'roblem ,ith the ticking time bomb scenario is

that is has been converted rom a hy'othetical scenario that may be "se "l to hel'

"s clari y o"r ethical 'ositions and di ic"lt tradeo s I to an act"al descri'tion o

the ,orld and to a 1"sti ication o 'olicies that have alarming ethical im'lications)

+t is 'ro'osed as an em'irical descri'tion o the ,orld) /here really is a ticking

bomb and ,e really have the 'erson ,ho kno,s abo"t it and i ,e don0t tort"re

him tho"sands o 'eo'le ,ill die) /his is then "sed to 1"sti y the act"al "se o

tort"re) nce some kind o ethical :'ermission; or tort"re has been given in the

abstract and limited case o the ticking time bomb once ,e acce't that the

'rohibition o tort"re is not absol"te this is then taken as a more blanket

'ermission or the "se o tort"re)

#



*s a descri'tion o the ,orld this scenario is dee'ly misleading)

+nterrogators ,ill tell yo" that they rarely i ever enco"nter an act"al ticking time

bomb scenario in their ,ork) +nstead o the clean hy'othetical o the tort"re o

one (g"ilty& 'erson against the lives o tho"sands o (innocent& 'eo'le yo" have a

m"ch more di ic"lt scenario o the tort"re o h"ndreds (4& o innocent (4& 'eo'le

,itho"t even being certain that there is a bomb or i ,e co"ld discover it and

dismantle it and save lives)

Prior to 3A22 the common'lace belie in the United States ,as that tort"re

,as ,rong and that the United States ,o"ld never "se or condone tort"re) * ter

3A22 a e, 'eo'le began to ."estion this belie b"t initially they seemed at the

margins or testing the ,aters) 5y #$$=A#$$D ho,ever there ,as a very

s"bstantial o'inion in this co"ntry that altho"gh most orms o tort"re may be

,rong it may be necessary and desirable to "se some orms o :tort"re lite; or

cr"el inh"man or degrading treatment to gather in ormation and to kee' *merica

sa e in this ne, sit"ation o a ,ar on terror) /hese arg"ments are not being made

1"st by conservative commentators b"t by some res'ected members o the liberal

intellect"al establishment) < *lmost all the arg"ments start ,ith the ticking time

bomb scenario and then move ."ickly to the 'remise that tort"re is indeed

:e ective); Rarely do these commentators 'rovide ade."ate evidence or this

'remise that tort"re act"ally ,orks) Recent cases have sho,n the risks o relying

< See the debate or e-am'le in San ord Levinson Torture: a Collection ( - ord UniversityPress #$$=&

#



on in ormation e-tracted rom tort"re) <% /he most revealing case is that o +bn alH

Shaykh alHLibi ,ho 'rovided the testimony abo"t ties bet,een +ra. and *l aeda

"sed by the 5"sh administration as one o its 1"sti ications or the +ra. ,ar) Libi

later recanted saying that he had abricated the in ormation to esca'e tort"re in

Egy't ,here he had been sent by the United States as 'art o the 'olicy o

e-traordinary rendition; o high level s"s'ects to other co"ntries or interrogation

'"r'oses) <3 Even some U)S) interrogators have come or,ard to arg"e that they

did not get "se "l in ormation thro"gh harsh interrogation) =$ Get the entire

arg"ment or tort"re rests on the 'remise o e ectiveness)

/he movement rom interesting co"nter act"al mental sim"lation to act"al

descri'tion o the ,orld that in t"rn 1"sti ies a 'olicy that goes ,ay beyond the

antecedent conditions o the mental sim"lation is a sleight o hand ,ith 'ernicio"s

h"man res"lts) + believe it is very dangero"s to go rom a hy'othetical tool o this

sort to a 'olicy recommendation or the real ,orld) +nstead ,e ,o"ld 're er to

base o"r 'olicy recommendations on the care "l em'irical research abo"t ,hat

has act"ally ha''ened in the ,orld) ?evertheless co"nter act"al arg"ments o

some sort may be di ic"lt to avoid)

<C> &Pure counterfactuals'

<% See or e-am'le :/he Costs o "tso"rcing +nterrogation@ * Canadian M"slim0s Long rdealin Syria ; 'ew 7or, Times May #3 #$$DB :>erman 7eld in * ghan !ail Files La,s"it@ Mistaken+dentity is 5asis o Claim ; 'ew 7or, Times 6ecember #$$D *2 )<3 :+ra. War +ntelligence Linked to Coercion ; International (erald Tri"une 3 6ecember #$$D)=$ *nthony Lago"ranis :/ort"red Logic; 'ew 7or, Times #% Febr"ary #$$ )

#%



* second kind o arg"ment o ten "sed both in disc"ssions o tort"re and in

disc"ssions o h"man rights trials is ,hat ,e co"ld call the '"re co"nter act"al)

Co"nter act"als are s"b1"nctive conditions statements (i)e) H they take the orm i

- then y ,o"ld have J& in ,hich the irst 'art o the statement is not tr"e) /he

arg"ment abo"t the e ectiveness o tort"re o ten tales this orm o a

co"nter act"al arg"ment) /hat is the arg"ment is that the sit"ation ,ith tort"re is

better than it ,o"ld have been i tort"re had not been "sed) /he 'olicy makers

say believe me ,orse things ,o"ld have ha''ened had ,e not tort"red)0

Co"nter act"al arg"ments are very common in the 'olicy ,orld and they are

common in social science as ,ell) 5"t they are a 'artic"larly tricky kind o

arg"ment and they need to be handled ,ith care) 5eca"se or every

co"nter act"al that says ,e are no, sa er beca"se ,e have tort"red ,e can

com'ose a 'la"sible co"nter act"al that says ,e are not sa er beca"se o tort"re)

+t is one 'erson0s vie, o ,hat might have ha''ened com'ared to another

'erson0s vie, o ,hat might have ha''ened) Co"nter act"al arg"ments can never

be 'roven or established de initively) ?evertheless this does not mean that all

co"nter act"als are e."al and ,e need to "se the best evidence at o"r dis'osal to

try to disting"ish more 'la"sible rom less 'la"sible co"nter act"als)

/o deal ,ith co"nter act"al ca"sal statements abo"t tort"re or e-am'le

,e need to look at evidence) + ,e look or historical evidence o real ,orld

e-am'les o ticking time bombs ,e ind very e,) !ose'h Lelyveld in a ?e,

#3



Gork /imes Maga9ine article ,here he intervie,ed many +sraeli sec"rity agents

says that des'ite the long "se o harsh '"nishment in +srael he co"ld get only one

s'eci ic case ,here tort"re act"ally sto''ed a ticking time bomb) =2 5"t

co"nter act"als abo"t tort"re are o ten 'artic"larly tro"bling co"nter act"als

beca"se 'olicy makers may also say that or national sec"rity reasons they can0t

'rod"ce the evidence to 'rove their statement beca"se it is classi ied) When

:evidence; is 'rod"ced or tort"re0s e ectiveness it is almost al,ays 'rovided by

a 'erson ,ho has carried o"t tort"re or a"thori9ed it) +n other ,ords since tort"re

is a crime the :evidence; or the e ectiveness o tort"re is 'rovided by the 'erson

,ho has committed the crime o tort"re) S"ch a 'erson has a strong sel interest

in convincing themselves and the a"dience o the necessity o tort"re) + they

,ish to live ,ith themselves and 1"sti y their behavior to others they m"st

convince all o "s that tort"re ,as e ective) So ,e have a co"nter act"al

sit"ation ,here the evidence ,e are "sing to ,eigh ,hether or not tort"re ,as

e ective is being 'rovided by someone ,ho has committed a crime and has

strong legal and 'sychological reasons or 1"sti ying it) ?o serio"s researcher

,o"ld acce't evidence in these circ"mstances)

Second in addition to asking or evidence o e ectiveness ,e e-'ect that

a good ca"sal conse."entialist arg"ment needs to do a more com'lete acco"nting

o costs and bene its /his may so"nd callo"s b"t 'olicy makers are already

=2 !ose'h Lelyveld :+nterrogating "rselves ; 'ew 7or, Times .a$a3ine 2# !"ne #$$D <

<$



doing a costAbene it analysis o tort"re) + they are going to do it at a minim"m

one so"ld insist that the costs are "lly acco"nted or in both a cosmo'olitan and

long range sense) +n the case o tort"re ,e need to ,eigh the ('ossible yet

"nkno,n& bene its o saving lives against the kno,n costs o tort"re to

individ"als) /here is a very e-tensive literat"re on the h"man costs o tort"re ,e

kno, it e-tends beyond the victim to the victim0s amily and rom the irst

generation into "t"re generations) Finally ,e need to calc"late the legitimacy

costs and the 'ro'aganda costs o the "se o tort"re) 7o, m"ch harm to the U)S)

re'"tation in the ,orld have the 'hotos o *b" >rahib done4 We can0t kno,

these costs 'recisely b"t any more long term "nderstanding o conse."ences m"st

take them into acco"nt) +n other ,ords it is not eno"gh to chart o"t costs b"t ,e

also need to try to ,eigh the costs against the bene its)

5eca"se o the notorio"s trickiness o this kind o conse."entialism

ethical reasoning has 're erred the deontological@ do not tort"re) +n that 'artic"lar

case + agree) + believe that there sho"ld be some basic deontological 'rinci'les so

that ,e don0t have to reo'en the ethical debate abo"t the conse."ences at every

'oint) 6o not tort"re is one o those basic deontological 'rinci'les) +t is also a

basic legal 'rinci'le in domestic and international la,) 5"t +0m also convinced

that the 1"sti ication or tort"re "ses very bad conse."entialist reasoning and it is

not ,ise to grant anyone the em'irical claim that tort"re is act"ally e ective) We

<2



sho"ld ans,er both that tort"re is ,rong and that its e ectiveness is "n'roven

and based on the most limsy evidence)

+n res'onse to Price0s ."estion o ,hat to do ,hen aced ,ith instr"mental

actors relentlessly '"rs"ing their interests one ,ay is to reali9e that they are

re."ently 'roviding im'la"sible conse."entialist acco"nts and it is im'ortant to

dis'"te both the 'rinci'les the ca"sal logics and the costHbene it conse."entialist

analysis) /his a''roach is all the more im'ortant i ,e acce't that some o the

instr"mental actors (and many o their s"''orters and ollo,ers& act"ally believe

the im'la"sible co"nter act"als) /he obligation o researchers is to be 1"st as

relentless in ."estioning im'la"sible acco"nts and 'ro'osing more 'la"sible ones

reali9ing that ,e can never be "lly 'ers"asive not only beca"se the instr"mental

actors are imm"ne to acts b"t also beca"se ,e are al,ays going to be ,orking in

the range o one co"nter act"al vs) another)

5"t aside or these 'erverse orms o mani'"lation o conse."entialist

arg"ments there is also ,hat ,e might call ,ell intentioned disagreement abo"t

'la"sible conse."ences) + agree ,ith Price that virt"ally all normative claims

de'end in vario"s ,ays "'on em'irical ass"m'tions or claims abo"t the ,orld)

What + ,o"ld add to this is that the great b"lk o them de'end on co"nter act"al

claims abo"t this ,orld)

6i erences among ,ell intentioned 'eo'le (as o''osed to di erences ,ith

relentlessly instr"mental actors& o ten have to do ,ith not clari ying the nat"re o

<#



o"r ethical and em'irical reasoning) + s"ggest that 'eo'le are engaged in di erent

kinds o reasoning and th"s talking 'ast one another) ne common disagreement

may res"lt rom ,hat + ,o"ld call the "nstated b"t im'lied co"nter act"al)

+ ,o"ld arg"e that :conditions o 'ossibility; arg"ments sometimes take

the orm o an "nstated co"nter act"al) /hat is conditions o 'ossibility

arg"ments involve em'irical statements abo"t ,hat act"ally e-ists and ho, it

became 'ossible) 5"t they also im'ly or s"ggest that other o"tcomes ,ere at one

'oint 'ossible and event"ally became less 'ossible) S"ch arg"ments serve one

'"r'ose o a co"nter act"al and that is to :call attention to ,hat co"ld have

ha''ened thereby locating ,hat did ha''en in the conte-t o a range o

'ossibilities that mightJ have taken 'lace instead); =# /etlock and 5elkin arg"e

the alternative to an o'en co"nter act"al model is o ten a concealed co"nter act"al

model) =< +n a concealed model the reader is a,are that the a"thor thinks that other

o"tcomes ,ere both 'ossible and desirable b"t m"st in er the 're erred

alternatives rom the criti."e o ,hat did ha''en rather than read them stated

clearly ,ith both their :'ossibility; and :desirability; de ended) +n this sense +

,o"ld ind it "se "l in a critical constr"ctivist acco"nt in addition to criti."ing

,hat did ha''en i the analysts ,o"ld s'ell o"t clearly the desired alternative)

C> Comparison to the (deal

=# /etlock and 5elkin Counterfactual Thou$ht E6periments in World Politics) 2D=< /etlock and 5elkin Counterfactual Thou$ht E6periments in World Politics) =

<<



* second im'ortant di erence among ,ellHintentioned scholars is the

di erence is bet,een ,hat some scholars call :ideal theory; and :nonHideal;

theory that is the di erence bet,een theori9ing abo"t the ethical ideal vs)

theori9ing abo"t ,hat is 'ossible or governments or individ"als to do in a nonH

ideal ,orld) == + 're er to think abo"t this distinction as the di erence bet,een

:com'arison to the ideal; I a com'arison o ,hat act"ally ha''ened to ,hat

sho"ld have ha''ened in an ideal ,orld I and em'irical com'arison) /he ,orld

o :ideal theory; ollo,ing Linklater might be "rther divided bet,een that

,hich is :already imminent; and that ,hich is not already imminent) =D 7o,ever

as Price s"ggests in his introd"ctory essay clearer g"idelines ,ill be needed or

ho, to identi y and disting"ish ,hat is already imminent rom other com'arisons

to the ideal)

Let me ill"strate these ,ith re erence to the iss"e o h"man rights trials)

First com'arison to the ideal can be e-'licit or im'licit) /he im'licit com'arison

to the ideal is very common in disc"ssions o h"man rights trials) So or

e-am'le many 'eo'le have disc"ssed the la,s in the international trials o the

+C/G in terms o its ail"re to act"ally arrest the most senior s"s'ected ,ar

criminals or or its ,rongheaded e orts at evenHhandedness or beca"se by giving

Milosevic the chance to re'resent himsel the /rib"nal gave him yet another

o''ort"nity to tra"mati9e his victims this time ,hen they testi ied against him)

== See or e-am'le >ibney The Ethics and Politics of sylum=D Linklater The Transformation of Political Community

<=



5eca"se these la,s o end the sensibilities o those committed to 1"stice they

make an arg"ment that it ,o"ld have been better to have no trials at all than to

have the la,ed trials o the +C/G)

/his is not a co"nter act"al arg"ment abo"t ,hat ,o"ld have ha''ened in

the ormer G"goslavia ,itho"t the +C/G) /hey are not saying that the co"ntries o

the ormer G"goslavia ,o"ld have held more or better trials on their o,n) ?or are

they saying that G"goslavia or Croatia or Kosovo ,o"ld have been better o in

terms o h"man rights or democracy or con lict ,itho"t the +C/G)

?or is it an em'irical com'arison to other com'arable trials or to other

co"ntries) /hey are "s"ally not saying or e-am'le that the ?"remberg trials or

the R,anda trials are better than the +C/G trials and th"s sho"ld serve as a

model) +t is a com'arison to an ideal o ,hat international trials sho"ld be) *nd

i the act"ally e-isting trials do not live "' to that ideal the belie is or the

im'lication is that it ,o"ld be better not to hold them at all)

/his kind o reasoning is not only the 'rovince o idealists b"t + ,o"ld

arg"e is act"ally very 'resent in critical constr"ctivist tho"ght and even in some

realist or liberal tho"ght) For e-am'le >ary 5ass in his book on international

,ar crimes trib"nals e-'lains trib"nals as something the co"ntries o the West

designed to ass"age their g"ilt at not doing anything to intervene and sto' h"man

rights violations in co"ntries like the ormer G"goslavia or R,anda) /his is an

e-am'le o com'arison to an ideal) /he ideal is that ,ealthy states sho"ld

<D



intervene to sto' h"man rights violations in other states) When they ail to do so

,e hold them "' against this ideal and ind them ,anting) When they do

something else (set "' ,ar crimes trib"nals in this case& it is again meas"red

against the ideal ('reventing the h"man rights violations in the irst 'lace& and

o"nd ,anting and th"s dismissed as la,ed) =

/his is an im'ortant orm o ethical reasoning) We need to kee' the ability

to hold o"r act"al 'ractices "' to o"r ideals and constantly meas"re ,here they

all short) S"ch reasoning is a 'o,er "l 'ress"re or change in the international

system) +t is one o the main tools that advocacy gro"'s "se in the ,orld) 5"t it

is also very im'ortant to be care "l ho, ,e "se this orm o the ideal com'arison

and to disting"ish it very clearly rom em'irical com'arison and co"nter act"al

reasoning) First com'arison to the ideal sho"ld be e-'licit rather than im'licit)

/he a"thor sho"ld clari y that the 'ractice or instit"tion in ."estion is being

com'ared not to an em'irical e-am'le in the ,orld b"t to a set o ideals o ,hat

s"ch a 'ractice or instit"tions sho"ld look like)

Many arg"ments abo"t inconsistency or hy'ocrisy are also com'arisons to

an ideal o 'er ect 'olitical consistency) Why do ,e get trials in the case o the

ormer G"goslavia b"t not in the case o ,ar crimes by U)S) 'olicy makers in

+ra.4 /his is a val"able ideal com'arison) +n an ideal ,orld ,e ,o"ld have

greater consistency and that ,o"ld incl"de ,ar crimes trib"nals o U)S) 'olicy

= >ary 5ass Stay the (and of 1en$eance: The Politics of War Crimes Tri"unals (PrincetonUniversity Press #$$$&)

<



makers) 5"t it does not ollo, that the +C/G is th"s not historical 'rogress 1"st

beca"se ,e don0t have "ll consistency) +n other ,ords some o o"r di erences

e-ist beca"se ,e do not disting"ish ,hen ,e are engaged in com'arison against

the ideal or ideal theory and ,hen ,e are engaged in em'irical com'arison or

co"nter act"al reasoning)

<C> Empirical Comparisons#

/he com'arison o 'ractices or instit"tions not to the ideal b"t to other

c"rrent or historical 'ractices can lead to rather di erent eval"ations) = So or

e-am'le an eval"ation o the +C/G that "ses em'irical com'arisons to other

international trib"nals might arrive at di erent concl"sions) For e-am'le +

,o"ld arg"e that the +C/G is an e-am'le o a :s"ccess "l; international ,ar

crimes trib"nal in the sense that it act"ally indicted tried and convicted

criminals "sing d"e 'rocess something that had not ha''ened since ?"remb"rg)

+nstead o holding the +C/G "' against an ideal o ho, international 1"stice might

look + com'are it to other cases in the 'ast and the 'resent) 7o, o ten in the 'ast

did 'o,er "l states act to '"nish h"man rights violations in co"ntries ,here they

,ere not the victors in ,ar4 ?ever4 + they no, do it in the case o +C/G and

+C/R that makes something ne, in the area o acco"ntability or 'ast h"man

rights violations) /his looks to me like signi icant historical change o a

= +n his ,ork on 'overty /homas Pogge 'ro'oses vario"s kinds o em'irical com'arisons andem'irical baselines as a ,ay to eval"ate the im'act o the international order on domestic 'overty)/homas W) Pogge :0*ssisting0 the >lobal Poor ; The Ethics of ssistance: .orality and the

#istant 'eedy edited by 6een K) Chatter1ee (Cambridge University Press #$$=& # <H# )

<



'rogressive kind given the de inition o 'rogress + "sed earlier in the cha'ter) +

,o"ld arg"e that ,ith the +C/G there is more acco"ntability or 'ast crimes in the

ormer G"goslavia that there ,o"ld have been ,itho"t the +C/G (a co"nter act"al

arg"ment& and that ,ith all its shortcomings the +C/G is still an im'rovement in

some ,ays on 'revio"s international trials (e)g) I less an a''lication o victors0

1"stice than at ?"remberg e,er immense delays ,ith their attendant violations

o the rights o de endants than at the +C/R&) Even ,eighing some o the

negative conse."ences + still ind the overall balance 'ositive com'ared to ,hat

,o"ld have ha''ened ,itho"t the +C/G) /his is not to say that ,e sho"ld orget

the 'roblems or be naNve abo"t o"r e-'ectations or the "t"re) 5"t neither

sho"ld ,e let o"r ideals inter ere ,ith the act"al doc"mentation o change in the

system)

Let me give another e-am'le "sing domestic h"man rights trials in Latin

*merica) Carrie 5ooth Walling and + "se vario"s kinds o em'irical com'arisons

o address the iss"e o the conse."ences o h"man rights trials in the region) We

com'are the h"man rights sit"ation in individ"al co"ntries be ore and a ter trials

to see i ,e can discern the im'act o trials on h"man rights) We com'are

co"ntries ,itho"t trials to co"ntries that had trials to gain "rther insight into the

e ects o trials) Finally ,e com'are those co"ntries that had a greater n"mber o

trials to those co"ntries that had e,er trials) Using these em'irical com'arisons

,e ind that there is no em'irical evidence that h"man rights trials ,orsen h"man

<%



rights democracy or con lict in Latin *merica and that in 2= o o"r 2 cases the

h"man rights sit"ation im'roved in co"ntries that "sed trials )=% S"ch em'irical

evidence can then be "sed to cra t ethical arg"ments in avor o h"man rights

trials arg"ments that are attentive both to 'rinci'les o 1"stice and conse."ences

o act"al trials)

Ethical arg"ments o these di erent ty'es are "bi."ito"s and necessary)

5"t beca"se they are also sli''ery ,e also need to be very care "l and 'recise

abo"t ho, ,e go abo"t "sing them) + ,o"ld recommend that irst ,e disting"ish

very care "lly bet,een the com'arison to ideals and historical em'irical

com'arison) + believe that many critical constr"ctivist acco"nts rely on the

com'arison to the ideal or to the conditions o 'ossibility co"nter act"al

arg"ment) +n almost every critical constr"ctivist ,ork there is an im'licit ideal

ethical arg"ment) /his arg"ment is im'licit beca"se it is rarely clearly stated b"t

it is o"nd in the nat"re o the criti."e) So or e-am'le in her disc"ssion o U)S)

h"man rights 'olicy Ro-anne 6oty criti."es a h"man rights 'olicy carried o"t by

actors ,ho sometimes "se it or their o,n sel aggrandi9ement and to denigrate

others) =3 /he im'licit ideal this 'resents is a h"man rights 'olicy that is not "sed

or denigration or s"rveillance or othering those it critici9es or conversely o

elevating those ,ho advocate it) What ,o"ld be e-am'les o s"ch a 'olicy4 /he

book does not 'rovide e-am'les) We do not kno, i e-am'les e-ist in the ,orld)

=% Sikkink and 5ooth Walling :/he +m'act o 7"man Rights /rials);=3 /homas W) Pogge :0*ssisting0 the >lobal Poor;

<3



So the im'licit com'arison is a com'arison to an ideal I a never "lly stated ideal

b"t one 'resent in the criti."e o ,hat is ,rong ,ith the 'olicies disc"ssed)

?icolas >"ilhot makes a similar arg"mentB the 'romotion o democracy

and h"man rights he claims are increasingly "sed in order to e-tend the 'o,er

they ,ere meant to limit) 7e historically e-amines ho, 'rogressive movements

or democracy and h"man rights have become hegemonic beca"se they

:systematically managed to integrate emanci'atory and 'rogressive orces in the

constr"ction o im'erial 'olicies); 5"t once again the book o ers no alternative

'olitical scenario) +n the inal sentence o the book the a"thor clari ies that :this

book has no other ambition than to contrib"te to the democratic criti."e o

democracy); D$ +n the introd"ction he clari ies :/his book does not 'rovide

ans,ers to these dilemmas) *t most its only ambition is to highlight them in the

ho'e that a 'ro'er "nderstanding constit"tes a irst ste' to,ard the invention o

ne, co"rses o action); D2 Ethically >"ilhot believes that the democratic criti."e

o democracy is s" icient) 5"t i criti."e is to o'en s'ace or ne, co"rses o

action as >"ilhot ,ishes some hint at ,hat those ne, co"rses look like ,o"ld be

"se "l)

/his criti."e has a cr"cial role to 'lay in 'ointing to hy'ocrisy (as Price

highlights in the introd"ction&) +t co"ld also serve as a catalyst or 'olicy change

D$ ?icolas >"ilhot The #emocracy .a,ers: (uman Ri$hts and International rder (?e, Gork@Col"mbia University Press #$$D& ###H##=)D2 >"ilhot The #emocracy .a,ers) 2=)

=$



in the direction o 'olicy that ,o"ld incl"de less s"rveillance or less coo'tation o

h"man rights disco"rse) 5"t it is "nlikely to serve as a catalyst or ne, action or

'olicy change "nless it vent"res something more than '"re criti."e "nless it risks

a 'olitical or ethical 'ro'osal) Witho"t that it 'otentially has the im'act o

delegitimi9ing any h"man rights 'olicy ,itho"t s"ggesting any alternative) *ny

'olicy to 'romote h"man rights o democracy 'olicy is sho,n to be dee'ly la,ed

or even 'ernicio"s) +t is 'ortrayed as 'art o the 'roblem certainly not as o ering

any kind o sol"tion) 7"man rights 'olicy a''ears to make the sit"ation ,orse

not better) /he criti."e has the e ect o telling "s clearly ,hat ,e do not ,ant

,hat ,e can not s"''ortOh"man rights 'olicies by im'er ect and hy'ocritical

actors like the U)S) +n its historical com'arisons it also l"m's h"man rights

'olicy together ,ith colonialism and does not 'rovide any elements to disting"ish

bet,een one 'olicy o s"rveillance and other) *ll are e."ally la,ed) /he ethical

e ect is to remove normative s"''ort rom e-isting 'olicies ,itho"t 'rod"cing

any alternatives) /his is similar to ,hat Price means ,hen he says that :critical

acco"nts ,hich do not in act o er constr"ctive normative theori9ing to ollo,

criti."e ironically lend themselves to being com'licit ,ith the conservative

agenda o''osing erst,hile 'rogressive change in ,orld 'olitics);

?either 6oty nor >"ilhot or e-am'le contrast t,o h"man rights 'olicies

to give e-am'les o 'olicies that are more o less hy'ocritical or ,here there has

been more or less s"rveillance) /hey don0t contrast h"man rights 'olicies or

=2



democracy 'romotion 'olicies to 'revio"s 'olicies that ,ere also hy'ocritical and

sel aggrandi9ing b"t more 'ernicio"s I e)g) national sec"rity ideology and

s"''ort or a"thoritarian regimes in the third ,orld) 5y 'resenting no contrasts

the criti."e ,o"ld a''ear to say that there is no ethical or 'olitical di erence

bet,een a 'olicy that s"''orts co"'s and "nds re'ressive military regimes and a

'olicy that criti."es co"'s and c"ts military aid to re'ressive regimes) /hese

'olicies ,o"ld a''ear to be ethically indisting"ishable) 6oty and >"ilhot give me

no ethical criteria to disting"ish among the 'olicies o the Kissinger

administration the Carter administration and c"rrent 5"sh administration 'olicy)

5eca"se the com'arison is an im'licit ideal never an em'irical real ,orld

e-am'le the criti."e is very telling and can delegitimi9e the criti."ed 'olicy) 5"t

nothing is '"t in its 'lace) So it demobili9es any s"''ort ,e might have or any

h"man rights 'olicy) +t '"ts the analyst in an ethically com ortable 'osition b"t

by not 'ro'osing any e-'licit com'arison it demobili9es the reader) We learn

,hat to o''ose to criti."e b"t ,e don0t learn e-'licitly ,hat to s"''ort in its

stead) /he res"lt can be 'olitical 'aralysis) ne inds it di ic"lt to act)

/here is a long tradition in 'olitical theory o s"ch criti."e b"t theorists

more o ten 'ro'ose alternatives) /he alternatives can be ideal or "to'ian ones b"t

they are o ten e-'licit) Peter Singer in his criti."e o c"rrent 'ro'osals or

1"stice says that ,e need ne, ethical standards I and 'ro'oses them) + one can

=#



hel' red"ce in1"stice ,itho"t ca"sing a similar harm to onesel one m"st do so) D#

>ibney 'ro'oses a more modest criterion or a revised asyl"m 'olicy@ :states have

an obligation to hel' re "gees ,hen the costs o doing so are lo,); D< + believe

critical constr"ctivists have s"ch ideals abo"t the nat"re o the international

system) + int"it that the main goals are e."ality both among individ"als and

among states) 5eca"se o the 'revalence o the criti."e o :othering; it ,o"ld

seem that the main 'rinci'le de ended is that o e."ality and nonHdiscrimination)

Critical constr"ctivists at least im'licitly o ten seem to be es'ecially concerned

abo"t advocating the 'rinci'le o the e."ality o states ,hen invoking the conce't

o hierarchy as a key critical oc"s)

ne 'roblem ,ith a tradition that 'laces s"ch em'hasis on e."ality in

action and in lang"age is that is renders 1"dgment 'roblematic) *lmost any

ethical 1"dgment leads to a concl"sion that some actions by some states or

individ"als are ,orthy o 'raise or o condemnation) + yo" 'raise or yo"

condemn critical constr"ctivists seem to s"ggest yo" inevitably rank or other in

some orm) 5"t + do not kno, ho, it is 'ossible to engage in ethical 1"dgment

,itho"t some kind o 'raise or condemnation) E."ality is certainly a val"able

goal b"t is state e."ality the 'riority goal that tr"m's all others4 *nd m"st o"r

commitment to e."ality make all attem'ts at ethical 1"dgment s"s'ect4

D# Peter Singer :Famine * l"ence and Morality ; International Ethics Charles 5eit9 et) *l (eds&(Princeton@ Princeton University Press 23%D& #= H# 2)D< >ibney The Ethics and Politics of sylum) #<2)

=<



+n the 'rocess o research and ,riting as ,ell + believe that the scholar

m"st both criti."e and ins'ire) D= /his is similar to ,hat Price calls or ,hen he

says that ,e need to '"t constit"tive em'irical insights to ,ork or a or,ard

looking ethic) For critical theorists to remind "s o the dark side o many

a''arently benevolent 'olicies is a necessary antidote against naivet h"bris or

sel congrat"latory sm"gness) Like,ise there are historical moments ,hen there

is nothing b"t criti."e and resistance) +t is very di ic"lt to ind anything ins'iring

abo"t the c"rrent 5"sh oreign 'olicy) >ad lies are al,ays necessary in these

sm"g times) 5"t + believe that ,e need to make 1"dgments and take action)

!"dgment im'lies an ability to eval"ate to ,eigh to make a decision in matters

a ecting action)

Smart st"dents or e-am'le ,ill read o"r ,ork and ,onder I ,hat

sho"ld ,e do4 Sho"ld ,e hold more ,ar crimes trib"nals4 7o, can the U)S)

government 'romote democracy and h"man rights4 7o, do the la,s o ,ar need

to be re orm"lated4 /hose o "s doing em'irical research ,ill ,ant to dra, on

o"r 'rinci'les and o"r research to try to 'rovide ans,ers to these ."estions)

!"dgment is a res"lt o a combination o the 'remises and commitments

,e begin ,ith and the em'irical research res"lts abo"t the conse."ences o

action) + believe that the best ethical 1"dgment re."ires the best em'irical

research ,e can do "sing all the research tools at o"r dis'osal) /his ,ill ens"re

D= + thank S"san 5ick ord or this insight)

==



that ,e render 1"dgment kee'ing in mind the limits and 'ossibilities o the real

,orld o 'olitics) /he research ,ill o ten involve di ic"lt co"nter act"als and

di erent kinds o com'arisons) Well intentioned researchers ,ill disagree abo"t

res"lts) We can im'rove o"r disc"ssions by being more e-'licit abo"t o"r

'rocesses o ethical reasoning and by relating o"r research indings more

e-'licitly to their normative im'lications) /his vol"me is one im'ortant ste' in

that direction)

the role of consequences, comparison, and counterfactuals

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