Kantian Hangover

Over at Crooked Timber, there's a discussion of the German Federal Constitutional Court's case on shooting down hijacked airplanes:

In the UK we are being treated to a rich and enjoyable series of programmes on Justice featuring Michael Sandel . No doubt there will be quibblers, but I think he’s done a great job so far. Last night’s episode discussed Bentham, Kant and Aristotle and, for my money, both utilitarians (in the shape of Peter Singer) and various German Kant-fans came across as slightly unhinged. The moment that most summed this up, however, was discussion of the German Constitutional Court’s Kant-inspired dismissal of a law that would allow the federal authorities to shoot down a hijacked airliner destined to crash into a city with catastrophic loss of life. Judgement here . According to these Kantians, even if the passengers are doomed to die in the next few minutes and shooting-down the plane will save many lives on the ground, to attack the airliner would show a lack of respect for their human diginity, purposiveness, endiness etc. and so is forbidden. For me, that looks like a reductio.

A comment:

[I]t’s at least not at all obvious that Kant would require the decision the German court suggests here. I’ve only skimmed it, but the idea that, in such a case, the government would be “intentionally” killing the innocent passengers is at least not obvious, and I don’t see why Kant would have to accept that, so it seems more the reasoning of the court that’s to blame than Kant here. (I’m not sure that Chris is saying otherwise.) The court seems to suggest that either we are merely doing a crass utilitarian balancing of lives here or else we must say this course of action is completely impermissible, but that’s just wrong (and not something Kant is committed to, I think.)

As an American lawyer, however, what interests me is that the case could be brought at all. I’m not a huge fan of the rules of standing in the US, but I’m fairly sure that here the people who brought the complaint would not have had standing to do so, and in this case that doesn’t seem an unreasonable outcome.

8 thoughts on “Kantian Hangover

  1. I can not understand the last quoted paragraph of the American lawyer. I am not a lawyer but I am fairly certain that the German Constitutional Court has “rules of standing” too. Complainants need to be affected by legislation if they want to bring the case to the Constitutional Court.

    After reading the first few dozens of comments of the original discussion over there I am surprised how willing the people there are to speculate about the reasoning of the court without reading the law (the GG). An understanding of the actual basis of the decision would relieve them from much of the speculation.

    The law says human dignity is inviolable. German courts decide that human dignity is violated if people are treated as mere objects by the state. In the case under discussion, people would get treated as mere objects. Thus the law allowing this is not rightful.

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  2. The rules on standing before the BVerfG in cases challenging a law are fairly relaxed (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891186, p. 12: The complainant has to show that the law has an actual impact on his actions). Another factor is the irreservebility of a state action based on the challenged law. If someone were on plane that was hijacked and shot down, he couldn’t seek help from the courts – because he would be dead. Therefore, the BVerfG may decide beforehand. The alternative for the complainants would be that they had to stop flying – something between impractical and impossible.
    See also http://www.bundesverfassungsgericht.de/en/organization/vb_merkblatt.html sub III.2.c

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  3. “The state may not protect a majority of its citizens by intentionally killing a minority […] A weighing up of lives against lives according to the standard of how many people are possibly affected on the one side and how many on the other side is impermissible. The state may not kill people because they are fewer in number than the ones whom the state hopes to save by their being killed.” [paragraph 35 of the judgment]

    Makes me wonder: could this very reasoning not be deployed as well to prohibit, once and for all, any kind of military involvement of the State’s armed forces in a war or conflict?
    No. That does not follow, because…

    Most casualties in wars are innocent people whose dignity is encroached upon by a hard-assed “weighing up of lives”.
    … that is not necessarily the case. If, say, an aircraft of the armed forces launches a missile which targets an enemies radar station, but the missile goes astray and kills innocent people, this is an accident, not an intentional killing. The killed people are not objectified.

    If on the other hand the enemy uses hostages which guard the radar station, and this is known to the aircrafts commander, the answer to the question could very well be different.

    Or does the protection of the fundamental right of dignity by the German constitution only apply to German citizens, and not to Afghans?
    No. This is an “everyone” right.

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  4. @Cuneiform: Thank you, but that explanation does not really convince me. I was expecting a justification along the lines of martial law (questionable as well) but the distinction you make between “accidental” and “intentional” killings is based on a misconception of realities.

    Killing civilians in wars can not be considered an accident. Rather they must be considered reckless killings. Any military decision maker, any parliamentarian dealing with defence issues knows or must know that going to war will necessarily and incidentally lead to the deaths of a significant number of innocent people, as undesired (“NATO deeply regrets”) as these deaths may be.

    In most legal systems, recklessness and intent are considered to be on the same level (ask a prisoner who was convicted for murdering recklessly on dubious evidential grounds). Consequently, the protection of human dignity should reflect this equivalence.

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  5. Killing civilians in wars can not be considered an accident. Rather they must be considered reckless killings. Any military decision maker, any parliamentarian dealing with defence issues knows or must know that going to war will necessarily and incidentally lead to the deaths of a significant number of innocent people, as undesired (“NATO deeply regrets”) as these deaths may be.

    This is certainly true. The larger act (“going to war”) can however be divided in a number of individual acts (sending tanks to that place, firing at these soldiers, bombarding that target, …). If for each of these individual actions no non-combatants are intentionally (or recklessly) killed, then I could see that this could make the argument that going to war is rightful. Please note that this is my own reasoning, I can not claim that any courts see it that way.

    Also, going to war is really a different situation to that which was originally discussed (shooting down a civilian airliner) – I mean it is legally different. The German Constitution grants explicitly the right to engage in collective self-defense, that is helping an ally to defend itself (Offensive wars are already forbidden completely, I hope this is clear). Do not ask me how that relates to the German engagement in the Kosovo war. Germany was not attacked back then, and neither was an ally of Germany. I guess the provision really means that Germany must not start a war, but can engage to defend a country or group of people. This is really tangential to the original question; I hope I am not boring you.
    Also, again, I never studied law. Caveat lector.

    In most legal systems, recklessness and intent are considered to be on the same level (ask a prisoner who was convicted for murdering recklessly on dubious evidential grounds).

    But this is really different to the German system then. Here, most criminal offenses can only be perpetrated intentionally. Even in the unlawful killing of someone, recklessness is not treated equally to intention. The difference in outcome for the perpetrator could be lifelong incarceration versus just five years in prison.

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  6. “But this is really different to the German system then. Here, most criminal offenses can only be perpetrated intentionally.”

    I know Wikipedia is not the most reliable source, but: “Der Eventualvorsatz ist grundsätzlich ausreichend, um Vorsatz für eine Tat zu begründen.” Evenutalvorsatz = the German legal term that is closest in meaning (though not precisely the same) to recklessness.

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  7. Evenutalvorsatz = the German legal term that is closest in meaning (though not precisely the same) to recklessness.
    Noted. I did not know the term recklessness was so close in meaning to “Vorsatz”.

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  8. While the short term rationale of preserving immediate life loss seems obvious at first, it doesn’t stand the “long term view” test.
    Once a government opens the door to actively take human live – where to draw the boundary?
    The USA, using such view, have turned from an icon of freedom into a system that has killed numerous humans through the application of the death penalty – many of which retrospectively turned out to be innocent to begin with. It has also turned into an aggressive war machine that invades foreign countries with reckless disregard for human life in order to preserve hegemonial interests, especially resource access far below market value.
    No, I think the German decision is right in the long term view – a government must never be allowed to take human life under any circumstances. And yes, as other commentators have already mentioned, that would be a very reasonable step towards a war free world.

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