Year: 2022
Type: article
Abstract: The problem of dirty hands is, roughly speaking, concerned with situations in which an agent is faced with a choice between two evils so that, no matter what they do, they will have to violate something of important moral value. Theorists have been primarily concerned with dirty hands choices arising in politics because they are thought to be particularly frequent and pressing in this sphere.11 For a more in-depth discussion of this see Walzer (1973). Much of the subsequent discussion in the literature has focused on the impact that such choices have on a well-functioning democracy and how, if at all, we can ensure that a politician dirtying their hands does not undermine core democratic values and processes. A particular concern has been whether dirty-handed politicians ought to publicly reveal their actions after the fact and whether they should be held accountable through some form of punishment. The first aim of this paper is to point out that the focus on what is required in the wake of a dirty-handed decision, based on the need to protect the democratic system ought to be balanced with a genuine concern for reparative justice and what is owed to the victims of dirty hands. In the second part of this paper, I then examine the suitability of one common way in which perpetrators partly repair the damage they have done to victims, namely apologizing, in the dirty hands context. The problem of dirty hands is a particular kind of moral conflict. Moral conflicts arise whenever an agent is faced with a choice between two morally valuable options which can be performed separately but not jointly. As a result, the agent is forced to forego one of the moral values but does so for good moral reasons, that is, to pursue the other morally valuable option. Having to choose between these two valuable options results in a moral remainder because, even if they choose the all-thing-considered better one, the lesser option has a value that cannot completely be made up for by the chosen one. This remainder is associated with a corresponding negative emotional response such as regret or remorse.22 For an in-depth discussion of the nature of moral conflict see Hurka (1996). The problem of dirty hands is concerned with a particular subset of such moral conflicts, namely those that result in a grave moral remainder.33 I have argued for this distinction between dirty hands and moral conflict at more length elsewhere (Christina Nick, 2022). The theoretical example given most frequently to illustrate this problem is Michael Walzer's ticking bomb scenario (1973). Walzer asks us to imagine a morally good politician who genuinely wants to act in the best interest of her citizens. Unfortunately, she is confronted with a situation in which a suspect in custody is refusing to give up the location of a number of bombs hidden in the capital city. Were they to explode, hundreds of innocent citizens could die. The politician now has to consider whether she ought to authorize the torture of the subject in order to extract the information from them. She is torn between upholding the ban on torture on the one hand and protecting her citizens on the other. Whatever option she chooses, she will get her hands dirty,44 I have elsewhere defended the position that, once confronted with a dirty hands problem, the agent is forced to get her hands dirty no matter what (Christina Nick, 2019). and her choice generates a moral remainder and negative emotional response termed by Stephen de Wijze (2004) as “tragic-remorse.”55 For further discussions on the sort of remainder and pollution appropriate to dirty hands see Williams (1976), Nussbaum (1986, 23–50), Baron (1988), and Bagnoli (2000). Even if she chose the lesser of two evils, she will feel anguished and polluted. How do dirty hands theorists explain this remainder, and the fact that an agent may feel a form of remorse for having done what they considered to be the all-things-considered best option available to them? To understand this, it will be helpful to take a brief look at Michael Stocker's (1990) analysis of dirty hands situations. In the ticking bomb scenario, it is wrong to torture people and it is also wrong to let hundreds of innocent people die when one could prevent it. In this hypothetical scenario, however, these two requirements are mutually exclusive; what we are faced with, according to Stocker, are “impossible oughts” (1990, 13). There are two moral requirements that the politician ought to follow, but she can, in this instance, only do one or the other but not both. Let us assume that she now decides, after careful deliberation, that it would be the lesser evil to torture the suspect. The wrongness of letting innocent people die if she could prevent it then turns into the “action-guiding” (1990, 11) consideration, while the wrongness of torturing people in this case becomes the “non-action-guiding” (1990, 13) one. The former is the reason that pushes her to take a certain course of action, while the other one, even though accepted as a good moral reason, is not acted upon. It is at this point, Stocker argues, that most moral theories stop. One course of action has been identified as the lesser evil and is therefore the right thing to do; end of story. As long as the politician has chosen the lesser evil, she should wholeheartedly commit to it and embrace her action as the morally right one. This, however, overlooks what now happens with the non-action-guiding feature; because she sees the wrongness of torturing people as a genuine moral demand she “double-count[s]” it; “the dirty feature is taken into account once in determining the overall value of the act and again on its own” (1990, 12). While she has identified the lesser evil in the situation, she in this way gives due weight to something she takes to be a genuine moral requirement; she is taking the wrongness of torture seriously and it becomes a remainder that attaches to her evaluation of the course of action taken. This remainder is then the source of a strong negative emotional response. Such an approach emphasizes that she ought to react with due consideration to every feature of the situation, whether she acted upon it or not. This focus on the non-action-guiding side, for Stocker, better reflects the complexity of our moral experience than a theory that concentrates simply on “action-guidingness.” The problem of dirty hands therefore illustrates the tragic possibility of situations in which it can be wrong to do what is right and in which we can dirty our hands by doing what we ought to do. For the purposes of this paper, I will not be able to take up a more sustained defense of the dirty hands analysis of such conflict scenarios; instead, I will simply assume that it presents us with an accurate reflection of our moral reality.66 For more sustained discussions on this topic see Hampshire (1978), Gowans (1994), Nielsen (2007) and Coady (2009). Let us illustrate these ideas with a real-life example. While I acknowledge that real-life examples will be a lot messier than hypothetical ones, and that we are unlikely to have all of the relevant information available, they can help us focus our attention on the morally salient features of the problem of dirty hands that merit investigation. Some of these features may be easily missed when confining our attention to more commonly used theoretical examples, such as the ticking bomb scenario, in which we focus on abstract moral agents rather than real human beings whose lives are impacted by political decisions. On the evening of 18th June 1994, several locals congregated in Heights Bar, a small establishment in Loughinisland, Northern Ireland to watch the opening match of the football world cup between Ireland and Italy, when two gunmen from the Ulster Volunteer Force (UVF) entered the bar with automatic assault rifles and opened fire. Six men between the ages of 34 and 87 were killed in the attack; all of them were Catholics. The next day, the then Secretary of State for Northern Ireland, Sir Patrick Mayhew gave an interview in which he condemned the attack and promised that the assailants were “going to be caught sooner or later. The RUC [Royal Ulster Constabulary] never give up” (Gibney, 2017). A few days later, local policemen attended the wake of one of the victims and promised the family “we will leave no stone unturned until we get the perpetrators of this” (Gibney, 2017). The message to the public and those directly affected by the attack was therefore clear: officials would do everything in their power to identify and prosecute those responsible for the attack. Local police showed a good initial response to the incident: they sealed off the crime scene, put out vehicle checkpoints and used a helicopter to surveil the surrounding area. The morning after the attack, the fully intact getaway car was discovered by a local farmer in a nearby field. Because of a mechanical error the car had been pushed off the road and the two gunmen and the getaway driver escaped on foot across the field. This was a very lucky find because standard practice in the UVF would have been to burn the car in order to destroy evidence. Police did, however, fail to forensically examine the surrounding field for further evidence and, curiously, in early 1995 the car was disposed of by the police. Later that day the police also received important information from Special Branch, the unit tasked with investigating terrorist activities and handling police informants. They told senior investigators the names of five individuals who formed part of a particular UVF cell they believed were likely responsible for the attack. Three of them had been seen talking together earlier on the day of the shooting. Less than a day after the attack the police had the names of a handful of suspects and had found the getaway car, yet no attempts to bring in any of the suspects for questioning were made that day. A few weeks later police discovered the rifles that had been used in the attack in a field close to where the car had been found. They also recovered a bag containing gloves, handguns, balaclavas and, most importantly, a hair follicle found inside one of the balaclavas. Throughout July and August, the RUC brought in a series of suspects for questioning. Unfortunately, we do not know anything more about these interviews because it is believed that all transcripts were destroyed in 1998 because of an asbestos contamination. What we do know, however, is that on the night before the August arrests the suspects were warned by a police officer of their imminent detention. In the end, none of the suspects were charged. Six months after the attack, an anonymous caller contacted the police stating that they knew the identities of the people involved in the Loughinisland Massacre. The names they provided matched up with those provided to police by Special Branch months earlier. The call was followed by an anonymous letter sent to a local councilor who forwarded it to the police as evidence. Local police knew the identity of the anonymous source because they recognized her voice on the phone; she was the wife of one of the suspects. She was brought in for questioning but was later on released without any charges despite her claims that she had been involved in planning the attack. After a while, the families of the victims stopped receiving regular updates from the police about what was being done to solve the crime, and the investigation petered out. Despite the initial assertions of both the Secretary of State and the local police force that everything would be done to apprehend the attackers, the case remains unsolved to this day. As a result of the continuous pressure of the families, in 2016 the then Police Ombudsman for Northern Ireland, Michael Maguire, published a report on the massacre.77 There had been a previous Police Ombudsman report published in 2011 by his predecessor Al Hutchinson, but this report left obvious holes in the narrative of what happened and was therefore judged to be unsatisfactory. Maguire states in it that “the failures to bring the killers to justice cannot be explained solely […] by a failure or otherwise of investigative actions” (Maguire, 2018, 139) and that he has “no hesitation in unambiguously determining that collusion is a significant feature of the Loughinisland murders” (2018, 7). According to him “a legitimate suspect, was not only an informant for the RUC at the time but continued in this role for a number of years after the Loughinisland attack” (2018, 118) and he could “only conclude that the desire to protect informants may have influenced policing activity and undermined the police investigation into those who ordered and carried out the attack” (2018, 138). One of the police officers who worked on the case concurred in this assessment, stating that “you'd have to say someone was being protected” (Gibney, 2017). I accept that the use of police informers is an integral part of policing and that their involvement during the “Troubles” saved many lives. Police, particularly in the heightened circumstances of the “Troubles” in Northern Ireland could not have undertaken their duties effectively unless they had informants providing information to them […] However, the involvement of informers poses many risks from a policing perspective, not least of which is the engagement with someone who is involved in serious criminal acts and may not always tell the truth. The engagement with an informer also poses an ethical dilemma for the police; to be effective the informer must have access to information and to have access to information they may, by necessity, be immersed in criminality. However, to be effective they must remain at large, otherwise they have no access to information. […] Informant handling requires the balancing of the potential value of the informant (which may save lives) and the nature and scope of activities, in which they are likely to be involved. (2018, 143–144) Maguire identifies a moral trade-off that had to be made in the messy context of a violent conflict. On the one hand, the use of informants can help prevent atrocities and save lives. On the other hand, in order to procure the information vital to preventing future attacks, informants have to be an integral part of their respective organizations, which likely entails a sustained engagement in the group's criminal activities. Public officials therefore have to weigh up the value of the future lives that could potentially be saved by protecting the informant with the value of bringing the perpetrators of crimes to justice. When public officials99 The dirty hands literature tends to focus on the decisions of those in leadership positions; in this case, those public officials who would have authorized the police to cover up the involvement of an informant. However, dirty-handed decision-making may not be restricted to this. The police officers who warned suspects of their imminent arrest or deliberately did not follow up leads may have got their hands dirty, too. Meanwhile, the informant made the dirty-handed decision of being involved in criminal activities, even murder, in order to fulfill their role in collecting information on a para-military organization. As a result, this case may have involved a whole host of dirty-handed decisions. I will take up this point again later when discussing who ought to apologize. make such a trade-off, they will inevitably get their hands dirty.1010 We should note here that Maguire's analysis may not, in fact, coincide with the reasoning of the relevant officials at the time. For the purposes of this paper, however, it is sufficient to say that on one not unreasonable interpretation, this is the kind of conflict that the officials may have seen themselves faced with. So, what should be done in the wake of a dirty-handed decision such as the one described above? The dirty hands literature has focused in particular on the question of whether officials should reveal their dirty hands to the public after the decision and whether we should hold the official accountable, understood in a narrow retributive sense, by punishing them in some form or another. We can roughly carve up the debate on truth and accountability into three positions. First up we have a position that requires public officials to reveal their dirty hands, who then ought to be held accountable through some form of punishment. S.L. Sutherland argues that unless officials reveal their dirty hands, there will exist “an unbridgeable gulf between those who lead and those who are led,” turning the public into “a passive collection of individuals” (Sutherland, 1995, 483) instead of a meaningful political actor, which excludes “the prospect of the reciprocity between citizens and leaders” (1995, 486). She adds that to legitimize political actors avoiding this of accountability would be to the of and the and that the public has to the power by the officials that act for them. She that in of dirty hands situations in democratic we need to ensure that takes the of the of (1995, of the dirty-handed There is a further position that could be taken that that officials ought to make public their dirty hands, but that they should not be held accountable through a form of for their While a of accountability in the of their to be to the democratic it be thought that to hold officials for by punishing or would be both and One that if the official is able to explain the need to take any further action and to hold her simply argues that when a public official has his hands for us and in our the act of him is morally him for what we would have him to do is no an or a it is simply She on to say that if an official can that she acted the of on her both by circumstances as as by the of she should be for her her and, punishing her is for to the case of punishing the When an official can give a for her dirty hands there is, according to no reason for us to there are those who that a dirty-handed public official should not reveal her actions to the this position also that the official should not, and in fact could not, be held accountable for her put the that dirty-handed instead of their should be in To is not to to dirty hands and to them in his for the need to these argues that […] on both officials and with democratic and even while them. […] have good reason to be sees the nature of politics as and from this that democratic practice can never up fully to the on which it is In order for the of democratic politics not to be undermined by this, it is therefore important for all the involved to up the in these even though we know that they can never be fully dirty hands could a to democratic politics because the public official is torn between a political and the held by the public that requires the official not to anything that is of as a to the this position could that there are certain dirty-handed actions that should never be because them is to I find this Even if the of a dirty-handed decision is, and remains for a long circumstances will so that the information can be There will a point at which it is appropriate for the to It does that in some so time will have that the dirty-handed action will have into a The decision to dirty hands for an time presents the agent with an dirty hands their hands will be to an anonymous for to position on this What all of these three have in common is that they are concerned with the way in which and accountability or important democratic and In the case of accountability there also to be some concern about what the dirty-handed agent does or does not given that they were if they did and if they did not. However, to the in the wake of Loughinisland there to be something in these a concern for the victims and what may be owed to them. When the for the of the night in years later, he was on the of One of the of the years on […] put the on the at night and about were and these were (Gibney, 2017). the of the Police Ombudsman the of the Loughinisland families that it had been years that these families have with they have the and that have (Gibney, 2017). What is in of the discussions in the dirty hands literature is a sustained engagement with what kind of are owed to the victims and those that have been left off for the that they have had to and bringing perpetrators to justice can be important in reparative For has argued that can, in and of be a form of to victims and the point that and for the are one way in which victims can be for human The reason I that, despite on these two the dirty hands literature has not with the of reparative justice is that, when talking about the need for officials to reveal their dirty hands and be subject to the focus to be on and to the and more on the of democratic The focus is therefore more on the dirty-handed agent and values rather than on the Because are by a concern for the discussions on dirty hands have not given sufficient consideration to reparative justice This is not to say that the done on both and accountability in the wake of dirty hands is not There are to be in this the of this paper is simply that we should this by some attention to those that are affected by the dirty-handed decision and the question of what we can do to repair the done to them. In fact, as I will in the of this paper, there are to be found in this part of the dirty hands world as There are a handful of of and in the or and more There are of the and and their to one in discussions on For in this paper I will use as an to any sort of action that something of value in order to a Such can take many In the case of we fully what was or through the a the however, will not be and in such may be more some form of valuable to make up for the or damage someone who an a of to the who a as a the dirty hands but these to be brief without any sustained Nussbaum states that “the that one has […] the that he may because her in a was also a and that is dirty-handed to the Later on in her paper she on this by that the to may, for be done also the of when he argues that, in response to a dirty-handed action the and to the who has done where the ought to take the form of punishment. de Wijze states that, as part of an of for a dirty-handed they may have to to the according to to two “the done and the moral wrong In an earlier paper he has also about that is to those to he two when the dirty hands context. he argues that while it is important that dirty-handed officials are held to in some situations their dirty hands may not be appropriate until long after the As a result, victims may be to a further by having their legitimate claims or for a long (2018, because public officials act for us and in our citizens may to a certain in their There is therefore a further question to be about the way in which the of ought to be to citizens as takes up this point and states that, because citizens in the for the actions of the officials that should the if The of an as a form of for dirty hands is only taken up on very few in the that a dirty-handed agent may have a moral to the In his discussion of the way in which dirty-handed agents ought to their de Wijze as one of the in this when the for her which and While there to have been some of the need for reparative justice in the wake of dirty hands, discussions have at a very so In the remainder of the paper I to look at the suitability of as one way of to the victims of dirty hands because, as I will they us with a particularly into the nature of let us consider who we could for a dirty-handed to the Loughinisland case will help us consider some of the One option would be for police officers to for any actions they their official that the up of the involvement of a police informant the suspect of their
Source: Journal of Social Philosophy
DOI: 10.1111/josp.12490
Author: Christina Nick
Institution: University of Leeds
Language: English
Subfield: Philosophy
Field: Arts and Humanities
Domain: Social Sciences
Open Access status: hybrid
Estimated APC paid: $2,950
OpenAlex ID: W4284879059