Stop the boats! Torture and the agony of being lectured

"Stop the boats!"

And we have. Apparently.

Except what we have done is stop (most of) the boats from arriving. Stopped the public from hearing about them. Stopped the xenophobes from having to share our boundless plains with tiny numbers of uninvited people in desperate need.

We have not stopped people getting onto boats, as there are still tens of thousands in our regions who do so, driven largely by genuine and well-grounded fear of life and limb, according to basically every official attempt to quantify such matters. We have probably not stopped people drowning at sea, even if there are now fewer who drown in sight of Australian land. We have not stopped dangerous and possibly illegal things happening on water, we just no longer hear about them from the minister who is meant to be accountable to us for the actions taken in our name. And we have certainly not stopped xenophobia by flattering it with policies designed to woo its votes.

We have facilitated the abuse - physical, sexual, emotional - of thousands, including more than a thousand children, and destroyed the mental and physical health of many. Two have died unnecessarily, one violently, yet no charges have been laid more than twelve months after his murder, witnessed by many (some of whom were then allegedly flogged into recanting their testimony). We have seen abused children used as hostages in parliamentary negotiations. We have violently ended peaceful protests. We have thrown billions at a false solution during a "budget emergency", the annual cost per asylum seeker detained offshore being greater than the PM's (very generous) salary. We have corrupted the governments of multiple poorer neighbours, through leveraging our foreign aid to secure policy outcomes amenable to our purposes, forcing them into impossible Kafkaesque situations so that we might technically have clean hands - and so journalists and human rights commissions can be kept away. We have transgressed the sovereign territory of our neighbour with military vessels on a string of occasions. We have flagrantly breached multiple critical international treaties and undermined international trust and the rule of law. We have dragged Australia's reputation through the mud, behaving in ways whose only parallels are found in dictatorships and repressive regimes.

And yet, for a majority of Australians, these costs are worth it. Because we've stopped the boats. A system of lies, cruelty, abuse, fear and manipulation has been constructed with bipartisan support (at least for the basic policy structure), in order to achieve a goal questionable in value, efficacy and morality. Yet the popularity of the idea that we have thereby reduced deaths at sea makes it all justified.

Let me be clear: fewer deaths at sea is a great thing, all else being equal. But the bottom line is that we simply don't know if our draconian policies have saved a single life. Our government claims to have saved thousands of lives, claims that it's working, but won't show its working.

Let's for a moment assume they are telling the truth. Let's assume that thousands of would-be economic migrants without a genuine fear of death or persecution have been dissuaded from risking perilous journeys on leaky boats run by shonky operators with little regard for their passengers and consequently thousands of those who would otherwise have ended up floating in the Indian Ocean are still safely in their crowded Jakartan apartments without legal protection (or safely incarcerated in Indonesian detention camps). Even then, Tony Abbott's dismissal of the UN report on Australian torture would be irrelevant and misleading.

The UN Convention Against Torture does not rule out torture used for bad ends, or torture used by bad people, or torture implemented through particularly cruel mechanisms. It rules out torture. Unconditionally and universally. There are no circumstances under which torture is appropriate. You can fantasise all day about ticking bombs and "noble" uses to save a city from a WMD; such instances would still be torture, and still be banned. You can have inflicted torturous conditions on innocent third parties in order to deter thousands of potential drowning victims from risking a voyage and hence have saved many more lives than you tortured, and still have breached your unconditional, universal commitment never to commit torture. Article 2.2 states: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."

So pointing out, as I have done many times, that stopping the boats has not kept desperate people out of serious danger, only pushed them elsewhere, at one level, misses the point.

Affirming that seeking asylum is a human right and so genuine refugees who happen to arrive on a leaky boat are thus protected by international law from being prosecuted for any irregularity in their mode of immigration, which means that the victims of our torture have been convicted of no crime also misses the point (though I've used this one too).

Even explaining that punishing innocent third parties to deter others from a course of (legally protected) activity is a form of deep moral cowardice still doesn't quite nail it.

It is simply wrong - deeply, wickedly, heinously wrong - to torture people. It is wrong to torture people when you think you are serving a good cause. It is wrong to torture people if you are indeed actually serving a good cause. It is wrong to torture innocent people. It is wrong to torture people who are guilty of every crime in the book. It is wrong to torture as a deterrent to others. It is wrong to torture in secret where deterrence of third parties can never enter into it.

The recent UN report has confirmed in perhaps the most official way possible what has been obvious for some time. The conditions under which we have been (and still are) holding thousands of people are horrendous. The fact that we are holding them indefinitely is brutal and unnecessary. Using mandatory indefinite detention under cruel and abusive conditions as a deterrent to others denies natural justice. Our capacity, even desire, to "legally" commit refoulement stands against every lesson learned about displaced and persecuted peoples through the horrors of genocide and world war. In short: we have become torturers.

So Mr Abbott, what is worse than being lectured to about torturing people?

Torturing people.

Do rivers have rights?

I spawn fish and I vote
A New Zealand court has recognised that a river has personality sufficient for it to have legal representation in order for its interests to be considered and its rights respected. The move is made in a deliberate echo or parallel of the legal "personhood" of corporations.

In both cases, corporations and natural entities, the personhood that is legally recognised is not identical with that of a "natural person", though it was the idea that corporations are persons that lay behind the 2010 US Supreme Court decision Citizens United that effectively removed any spending cap on corporate political "speech".* This is not the place for a detailed consideration of the history and myriad implications of this legal metaphor. My usual brief reply to this idea is that as long as the US starts applying the death penalty to corporations who commit grave offences, then they can continue with this somewhat odd word games.
*Also lying behind the decision was the equation that campaign money is a form of speech and so falls under the First Amendment protecting freedom of speech. I find both assumptions dubious.

In truth, I don't really know what to make of this development in New Zealand. It seems like an extension/application of the move made in 2009 by the new Bolivian constitution, which acknowledges that nature has rights. There may have been other ways of doing it, but I do think it is imperative that the ecological damage we are doing is brought more clearly and fully into our legal system. There are all kinds of difficulties with this task and I doubt there is a perfect solution. I would be very interested to hear reflections from lawyers (and anyone else) on the possible pros and cons of this precedent.

A variety of theological observations support some kind of legal recognition of creatures (and I'm not confining this word to living beings, but include rivers, mountains, atmosphere, oceans, etc.). The created order is declared "good" in the absence of humanity (Genesis 1); it is sustained and designed for goods that are not exhausted by human projects (Psalm 104); God cares for it simply because he made it (Matthew 6 & 10). In short, non-human creatures have intrinsic, not merely instrumental, worth and cannot rightly be appropriated by or subordinated to human projects without this being given due weight.

Australian charter of rights

The Australian Government is considering introducing a charter of rights. While it may initially sound like a great idea, on further reflection, I have more than a few reservations. Some of them are expressed by former NSW premier Bob Carr in this SMH article. And some others are expressed (at greater length) by Andrew Cameron in this excellent submission to the Freedom of Religion and Belief Project earlier this year. Although the latter is primarily in relation to religious freedoms and potential anti-vilification laws, many of the principles also apply in relation to a possible charter of rights.

Nations have no right to exist

...the right of national self-determination does not exist in the Bible. Before God nations have neither a right to exist nor a right to liberty. They have no assurance of perpetuity. On the contrary, the lesson of the Bible seems to be that nations are swept away like dead leaves and that occasionally, almost by accident, one might endure rather longer.

- Jacques Ellul, The Politics of God and the Politics of Man
(trans. Geoffrey W. Bromiley; Eerdmans, 1972 [1966]), 27-28.

We have no divine guarantee that the present international order will not be swept away. Quite the contrary: autumn may have already begun.

Studying ethics

What do you think of when you hear the word "ethics"? What are the connotations?

As a postgraduate student who is currently meeting a lot of other postgraduate students, after "where are you from?" (which usually means they spoke before I did. If I speak first, then the first question is "are you from Australia?" (or "are you from Australasia?" for the more cautious ones)), the next question is almost always "what are you studying/researching?"

I have experimented with a variety of answers to this question: Divinity, Theology, Theological Ethics, Christian Ethics, Political Theology, Social Ethics, Moral Theology and more. But the only answer that seems to generate further discussion (and nearly always does so) is when I simply say "Ethics". Perhaps the others are too intimidating or simply incomprehensible, but ethics is something that people have an opinion about. And that opinion is frequently: "Why bother?" The study of ethics is seen as superfluous, with little claim to focused attention as a serious intellectual discipline.

Even putting aside a militant scientism that assumes only the natural sciences are genuine forms of knowledge, there seem to be two assumptions that lie behind this common response. The first is that ethics is simply personal: "Isn't it all just a matter of opinion?" In this case the questioner has swallowed the liberal paradigm in which "values" are a matter of personal preference and as such rational discussion or evaluation of one choice as better or worse than another is either trivial (on a par with criticising a preference for chocolate ice-cream) or even mildly offensive (like disparaging someone's fashion sense). As a long-term student (and occasional teacher) of literature, philosophy and theology, this objection and at least a few strategies to answer it are quite familiar: "It's not just opinion, but whether one's opinions are justified."

However, the second assumption has been a little more surprising (though perhaps it ought not to be). A few interlocutors have been audacious enough to claim or imply (and all this within seconds of meeting me) that ethics is peripheral to life: "I put in my ethics reports for my research, and then I have fulfilled my ethical requirements." Ethics is seen as simply a baseline minimum standard of behaviour, which, once satisfied, can be ignored so that life may proceed. I think this too is a result of liberalism. In a liberal society we conceive of ethical responsibilities through the language of rights. These rights are owned by each individual and some/all of them may be traded, exercised or waived by myself and threatened, broken or defended by others. However, such rights only relate to certain areas of life, leaving the rest of existence as an arena of "freedom" (or, to say what amounts to the same thing in other words: of the market).

In this view, most of our decisions have little or nothing to do with ethics, as long as we're not actively hurting someone else. Most of life is amoral. This also means that most of life is off-limits for rational deliberation. We can't decide which is a better or worse option because each option is simply a matter of personal preference (notice the link here with the first response). For whom are you going to vote? Well that's a private matter. Notice how only some political issues are called "moral issues", and they are ones in which someone's rights are at stake. I have discussed the limited range of this kind of rights-language at more length back here.

But this approach leaves ethics on the margins of our daily lives, only relevant in an emergency, like the fire extinguisher on the wall. Someone has to make sure it still works from time to time, and so ethicists are given a grudging acceptance for this basic maintenance. Or perhaps there is also a peripheral role to play in adjudicating line-ball cases, or areas of life that are particularly complex. The proliferation of ethics committees at hospitals is a symptom of this.

However, by reducing the ethical to observing the rights of others, morality is pushed to the margins, and life is lived in an ethical desert, with only an occasional cactus breaking the surface of a vast and featureless "freedom". In frustration, some attempt to plant more cacti, multiplying rights until they are trivialised into the right to do what I want any old time. By speaking only in a single tone of voice, an unconditional demand that my rights be respected, the rights-discourse is unable to resolve claims between competing rights: my right to bear arms vs your right not to be shot; your right to be born vs my right to avoid the complications a baby brings.

One serious challenge to the liberal consensus comes from natural law ethics, most pressingly represented in recent discussion by various streams of environmental ethics. There are simply ways of living that are against nature, and when you live contrary to nature long enough, nature fights back. This approach has the great advantage of irrigating the desert, bringing the life-giving waters of moral responsibility into every area of life so that all kinds of growth flourish until there is a veritable jungle of obligations. Soon we find that everywhere we step is squashing something.

Without denigrating the place of (a certain qualified form of) natural law ethics, my response in these conversations over the last few weeks has been to reach instead for virtue theory: ethics isn't just "do no harm", "violate no rights", but instead keeps asking questions like "who am I becoming?" In the jungle of life, where am I going and how I am getting there?

Human rights: a stop sign, not a road map

Much contemporary discussion of ethics takes the form of claims about human rights. Yet the popularity of this mode of discourse threatens to narrow the range of ethical reflection. Although rights have a limited usefulness as a warning of imminent (or present) danger, by themselves they are a woefully inadequate conceptual resource for structuring reflection and behaviour. Rights provide a negative limit of obligation, borders beyond which one must not pass. But they lack a sense of a positive project, of growing a community, maturing a self in caring and variegated relation to others. The strongest positive statement in the widely cited UN Universal Declaration of Human Rights (1948) is that "human beings... are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." Nearly all the rest of the thirty articles outline protective measures restricting the power of the state over against an individual. This declaration is rightly important, and does serve a very useful function. But it is not and should not be expected to be a comprehensive basis for our life together. And this is not simply because it is a product of its age and culture (notice that we are to live in a spirit of brotherhood, and that - understandably after WWII - the main fear is of state-initiated oppression of individuals); it is because rights themselves are a backstop measure, not the main game.

When a relationship has reached a point where both sides are standing on their rights, we are already in damage-control territory. If you have to claim your right to something, the positive goal of the relationship has broken down and it has now become a question of harm-minimisation.

In 1 Corinthians 8-14, Paul argues for the priority of love over rights, of thoughtful passionate concern for the other over the unrestricted exercise of my freedoms. God's love for us in Christ liberates us, not to do whatever we wish, but to do good to others, to serve them for the common good.

Often, our cultural assumption of the good life comes down to each of us pursuing our own agenda as relatively free from outside interference as possible. But there is so much more possible. Others are not obstacles to be negotiated in the fulfillment of my desires; they are opportunities for growth, visible signs pointing to God's coming presence and glory, the primary way in which we love God. The other is a gift to me; indeed, a significant part of that gift is that in the other I too can become a gift.

Rights are merely a stop sign; only faithful, hope-filled love gives us a map.

Why Politics? I

Last Friday, I gave a short talk at the start of our State Election Forum. Here is the first half of the talk. Second half tomorrow.

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A politician wanted a special postage stamp issued with his picture on it. So, he instructed his people, stressing that it should be of international quality. The stamps were duly released and he was pleased. But within a few days of release of the stamp, he began hearing complaints that the stamp was not sticking properly, and he became furious. He called the people responsible and ordered them to investigate the matter. They checked the matter out at several post offices, and then reported the problem to the politician. The report said, "There is nothing wrong with the quality of the stamp. The problem is people are spitting on the wrong side."

Politician: "Election time has come again! The air will be full of my campaign speeches!"
Cynical voter: "And vice versa!"

Why politics? Why bother?

Traditionally, we Australians are often cynical about those in power. The media loves to run stories of politicians’ failures and indiscretions. And they love to run them, because we love to hear them. Perhaps it adds some drama to our lives. Perhaps it gives us someone to blame for our society’s failings.

Yet the fact that we keep being shocked also reveals that somewhere, we expect more of our leaders than the lies and indiscretions that all-too-often make the headlines.

Our members of parliament are called public servants, and the leader of our nation is its prime minister, or first servant. Somewhere, embedded deep within our language, we know that our leaders ought not do what is best for themselves, or those like them, or even just for those who elected them, but they are to serve the public good. Even our nation is the Commonwealth of Australia, a nation set up on the ideal of the common weal, the common good.

It doesn’t help that many of us think about elections as times to vote for those who will best serve our interests - or perhaps more accurately, best serve our interest rates. With bumper stickers proclaiming, ‘I fish and I vote’, ‘I drive a 4WD and I vote’, ‘I practice origami and I vote’, our attitude is to threaten to vote for someone else unless our desires are met. We organise ourselves into political pressure groups to get our voice heard, to put our issue forward, to demand my rights and those of people like me. In doing so, we lose sight of the common good, and instead imagine that it is each interest group for itself, grabbing as much of the cake as possible. In this way, our attitudes swing between cynicism and pragmatic selfishness.

UPDATE: Please see comments for relevant discussion of the language of "public servants" and "ministers". My post is not an accurate reflection of the connotation of these words, but I will leave it as is so that the discussion below makes sense. You can read the second half of this talk here.