I Respectfully Dissent
I respectfully, but totally and vehemently, dissent from your treatment of the relationship between law and philosophy, law and morality, and Waldron and Yoo today, particularly with respect to the hypothetical concerning the "nuclear scenario" posed to Professor Waldron.
First, Waldron's position concerning the positive law is clear: the positive law absolutely forbids torture, period. It does not brook exceptions for "nuclear" threats, real or imagined. This may be a disappointment to you, it may even seem wrong to you, but as a Federalist committed to the rule of law you surely recognize that your disappointment, even your moral disapproval, are not enough to undo the law. Or do you think he is wrong in his characterization of the positive law? (Note that even Yoo did not challenge it; Yoo's preferred stratagem is to define torture so narrowly that to proscribe it is to proscribe nothing.)
Second, his noting of the moral prohibition on torture set the legal prohibition in a deeper context: even a "positivist" about the standing of law as a human artifact ought to recognize that it is not an arbitrary artifact; rather, law has sources and inspirations. Thus, Federalists such as yourself recognize, presumably, that although the 11th Amendment does not explicitly require state sovereign immunity, the structure built by it implies such immunity. It is, therefore, entirely a real world and realistic approach which notes that our legal prohibition on torture, which is absolute, is rooted in similarly absolute moral prohibitions on torture. Prof. Waldron noted, and Yoo never responded to the point, that there are clear moral concepts bound up in and implemented by our positive laws concerning torture. Thus, to consider the moral implications of such laws would just be good lawyering, not importing one's personal views (which might or might not be as averse to torture as our treaties and statutes are), in just the way that structural arguments constitute good lawyering on the part of fans of state sovereign immunity.
Third, on the general point whether a government of Waldrons would be unimaginable or undesirable, I think you are on the weakest ground yet as a Federalist. Federalists, you will recall from the Federalist Papers (esp. No. 51), recognize that government needs restraints precisely because government officials are not angels. Thus, our absolute traditional prohibitions on torture exist and need to be affirmed precisely after 9/11. It is when the temptation to torture arises, and not in its absence, that we must be grateful to inherit a tradition which abhors it. Circumstances can and often will arise in life when that which we do not in our best moments approve seems very tempting. These moments we tend to call our weak moments; we encourage the development of virtue to help us to be strong when circumstances push us to be weak. It is precisely, therefore, when torture seems most appealing that we should be grateful for the likes of Jeremy Waldron who will remind us to tremble at the thought of it. This is what the rule of law is all about.
Fourth, were you not deeply embarrassed that Prof. Yoo had precious little, and nothing precious, to say about the moral implications of these laws? He presented himself like a small town lawyer who just probates wills, and has not the time or the fancy thinkin' to imagine what the laws of trusts and estates ought to be. This might serve as an excuse for the shoddy workmanship, the embarrassing lawyering, of the Yoo/Bybee (he did not deny his hand in it today, when directly challenged on that point) memo; it certainly does not excuse the silence of a distinguished professor of law at one of our nation's finest law schools on the normative dimensions of an essentially moral part of our laws which he himself has helped to shape. Who among us is a law student who, when taking Torts, was not required by his professor to consider the moral dimensions of liability, recompense, and the like? Who among us, when taking Contracts, was not asked to weigh the moral dimensions of breaking promises against the "efficient breach?" Answers to these complex questions were not dictated, but the resources to address them were expected.
Today Prof. Yoo tried to play the role of "mom and pop lawyer" incapable of addressing the normative aspects of law. He showed little aptitude or interest for the moral implications of what he did write, though some enthusiasm for the immature "reality" of the parlor games represented by the nuclear hypothetical. Perhaps we listened to a different debate, but I did not hear Prof. Yoo defend the applicability of that hypothetical. He did advert to the capture of the #3 member of Al Qaeda; he did not tell us (presumably because if he knew it national security clearance would not permit it) whether that individual had yielded any 9/11 type information, or whether torture would make such yields more likely. And remember, 9/11 was not a nuclear attack. So let us return to the hypothetical, which imagined that one man out of 20 captured would "certainly" know how the millions would be killed.
The unreality of that hypothetical, to reiterate, is this: Al Qaeda, in the real world, does not trust its operatives enough to let any one of them know the details of its operations. Neither, for that matter, did/does the IRA in Ireland. Terrorists, no strangers to torture themselves, prepare to avert its risks. Further, our intelligence gathering against Al Qaeda occurs over years, not in discrete, crucial moments, conveniently and identifiably proximate to the tragedy being plotted. How many people are too many to torture, over how much time, and with what variability of certainty as to their knowledge of what might be transpiring? The framing issues here, in the real world, as against the ivory tower hypothetical posed, matter quite a lot.
Prof. Waldron's "ivory tower" point was also that some things are so wrong that no countervailing threat could justify them. His point was to deny the applicability of utilitarianism in this context. Your astonishment at that answer could only be justified by a certainty that we must be utilitarians in such situations. Fine: How many infants would you rape, as a defender of the hypothetical, in order to stop the detonation of the bomb? If you answer "none" or close to it, then you are no utilitarian worthy of the name (except for some strained and silly "rule utilitarian" which is always a dodge, as it abandons the notion of actually calculating utils or anything of the like, and simply mimics deontological or categorical reasoning in hard cases). If you would in fact be willing to rape wives, daughters, or mothers of terrorists in order to prevent such a bomb exploding, then you would have to answer to the law and to most traditional forms of morality. Or you could simply assert: "Hey, governments have to do ugly things sometimes. Do you want a Government of Waldrons?"
Given the choice of scholars we saw today, and given the choice of arguments, I will take a Parliament of Waldrons, a Federal Bureaucracy of Waldrons, and a Supreme Court of Waldrons. If we ran out of Waldrons and had only Yoos left for dog catcher, I'd consider eliminating the office.
I respectfully dissent.