Leiden Law Blog

The Ethics of Olympic Missiles

The Ethics of Olympic Missiles

In little more than a week the 2012 London Olympics will start. Part of the vast security measures for the Olympics are six missile launching sites, which – in combination with RAF fighter jets – will serve as a ‘last resort’ against possible terrorist air attacks. These sites are located partly in residential areas in East London, and the residents of the Fred Wigg Tower will actually get Rapier Missiles on top of their building. Last week 117 of these residents lost their legal bid against the placement of the missiles. With the missiles now (legally) firmly in place, the big question is: what to do with them?

The German government actually tried to answer this question before an actual emergency situation would take place. Article § 14.3 of the Aviation Security Act, which came into force in 2005, gave the military the power to take down a passenger plane when it is set to be used against the lives of others, provided that the downing of the plane is the only way to prevent this from happening. In 2006, however, the German Federal Constitutional Court held the provision to be void (English version). The law went beyond the state’s formal federal legislative powers. To this, the Court added – and this is what makes the judgment so interesting – that the downing of a hijacked plane also violates the human dignity and the right to life of the innocent passengers and crew on board. By downing a hijacked plane – or legitimizing a downing beforehand – the state treats the innocent passengers and crew of the aircraft merely as a means to an end, the end being the protection of the lives of those on the ground. In the Court’s own words: ‘such a treatment ignores the status of the persons affected as subjects endowed with dignity and inalienable rights. By their killing being used as a means to save others, they are treated as objects and at the same time deprived of their rights…’

Professor Hans Nieuwenhuis used to lecture on this case, and when he did, he always stressed the highly Kantian character of the Court’s decision. Nieuwenhuis was obviously right; although the court does not mention Immanuel Kant directly in its judgment, its reasoning strongly resonates the great German philosopher.

Central to Kant’s ethical theory, as expounded in the Groundwork of the Metaphysics of Morals, is the categorical imperative. The categorical imperative is morally binding on all rational beings, i.e. on humans. There is no ‘opt-out’ on a norm derived from the categorical imperative: the norms are absolute. Kant gave several different formulations of the categorical imperative. One of the better-known formulations runs as follows:

‘...so act that you use humanity, in your own person as well as in the person of any other,    always at the same time as an end, never merely as a means (§429).’

Here one sees how ‘Kantian’ the Court’s interpretation of human dignity is. ‘Human dignity’ as the right never to be treated merely as an object, but always as a subject too.

The Kantian perspective is, however, only one side in an age-old debate in practical ethics. The classical adversary of Kantian ethics is the utilitarianism of the British philosophers Jeremy Bentham and John Stuart Mill. In utilitarian ethical theories, the morality of an act is determined solely by its consequences: an act is morally good if it tends to promote the general happiness. So, for every act one has to determine if, on the whole, it promotes the general happiness. The ‘greatest happiness for the greatest number’ is what counts. This makes it morally permissible to torture terrorists to obtain vital information to thwart a bomb attack (and thereby saving a lot of lives), but it could also justify the downing of a hijacked airplane if that would avert a 9/11-like scenario (see also). And utilitarians, actually, do seem to have a point: how could one stick to strictly Kantian ethics when facing such grave consequences? (For the record – I think you can and should.)

The great question regarding the Olympic missiles is therefore: will PM David Cameron, in the disastrous event that he actually has to decide whether to use the missiles against a hijacked plane, follow his utilitarian British countrymen Bentham and Mill, or will he side with Kant and the German Constitutional Court? We can only hope he will not have to make this horrendous decision at all.

1 Comment

Max Harmreduction
Posted by Max Harmreduction on July 22, 2012 at 20:52

The exception tests the rule and finds it inadequate.  If I was in the big stadium with more than 20,000 others, and that highjacked aircraft appeared coming in to crash, my last thoughts would be this Kantian jurisprudence is an ass!

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