Back when I was in university there was something of battle going on between Professor Ronald Dworkin and Professor John Finnis. The former had something of the intellectual rock star about him. He had just published Law’s Empire to a satisfying mixture of acclaim and outrage and was delivering a series of lectures running through its basic thesis as if he were a singer touring a new album. In the flesh (of which there was plenty) he was an unengaging spectacle. He wore a green corduroy suit that may have fitted him in his teens but which now had appeared to be on the point of exploding at the seams (the possibility of which kept even the drowsiest students awake).
If Dworkin was pop music, Finnis was madrigals. He was slight man with a hearing aid and was as dry as the Atacama. He launched a parallel series of lectures which, had he not been an adviser to the Vatican, might have been called “Fuck You Dworkin”. Both lectures were wildly popular. Partly this was because there was something warming about watching two famous academic philosophers trying to dig their hush puppies into each others nads. Mainly, however, it was because we actually understood what they were talking about (not a common thing with jurisprudes). What they had been arguing about was whether there were any absolute rights and wrongs. Finnis, a so-called “natural lawyer” believed that there were. Dworkin, it had been thought did not. They approached the question indirectly via a connected but subtly different issue: Were there harms you could inflict on others that could not be justified? Locking people away in small rooms for years is bad – but if they are murderers convicted and sentenced we think it justified. Stabbing someone with a knife is bad, but if you are a surgeon operating on a patient it is good. But are there harms no context will justify? It is the question of our age. Take abortion: can terminating an embryo or foetus be justified? Some say it is always justified if that is what the woman wants. Others say it can never be justified. Still others (including the law in the UK) says it is justifiable in certain specific circumstances. Is pre-emptive invasion of another state never justified or does it depend on the circumstances? What about torture?
For Finnis, as we understood him, there are some things that are so bad that whatever the law, whatever your religion, race or upbringing, there is no justifying doing them. Dworkin, shocking many, had recently changed his position. He told us that he could now think of something that could never be justified: torturing babies. Finnis was jubilant and gushed bout “slippery slopes”, confident that he was close to a win.
Over our baked potatoes, we earnest students debated away. Some said Dworkin had given in too easily. What if the father of the baby was set to unleash a virus that would lead to global mass extinction? If torturing his baby made him stop would that not be a good thing to do? The formula was always the same: could one think of something that was so much worse than torturing he baby that if the torture averted it it could be justified? Disturbingly, many would have been torturing the child to avoid relatively trivial harms. After an hour we all went back to worrying about our acne and whether a member of the opposite sex could ever be persuaded to sleep with us.
Last Friday Al Qaeda in Mesopotamia were faced with a very troubling situation. There are markets in Baghdad in which you can buy live birds as pets. This is, apparently, haram, which means that it is forbidden on religious grounds. That is, if you are a member of Al Qaeda, a very bad thing. So bad that it justifies causing harm to others. So bad, in fact, it justifies killing others. So far, so depressingly familiar.
As you would expect, Al Qaeda determined to bomb the markets. They did so by strapping bombs to two women with Downs Syndrome, taking them to the market and then remotely detonating the bombs. The more I have thought about this the more I found myself, somewhat to my own surprise, coming to feel that there really are things that cannot be justified. Some things cannot be allowed to prevail whoever does them and for whatever reason. All else is anger and sadness.