Kant and Lying to the Murderer at the Door . . . One More Time: Kant's Legal Philosophy and Lies to Murderers and Nazis
2010; Wiley; Volume: 41; Issue: 4 Linguagem: Inglês
10.1111/j.1467-9833.2010.01507.x
ISSN1467-9833
Autores Tópico(s)War, Ethics, and Justification
ResumoKant's example of lying to the murderer at the door has been a cherished source of scorn for thinkers with little sympathy for Kant's philosophy and a source of deep puzzlement for those more favorably inclined. The problem is that Kant seems to say that it is always wrong to lie—even to a murderer asking for the whereabouts of his victim—and that if one does lie and despite one's good intentions the lie leads to the murderer's capture of the victim, then the liar is partially responsible for the killing of the victim. If this is correct, then Kant's account seems not only to require us to respect the murderer more than the victim, but also that somehow we can be responsible for the consequences of another's wrongdoing. After World War II our spontaneous, negative reaction to this apparently absurd line of argument is made even starker by replacing the murderer at the door with a Nazi officer looking for Jews hidden in people's homes. Does Kant really mean to say that people hiding Jews in their homes should have told the truth to the Nazis, and that if they did lie, they became co-responsible for the heinous acts committed against those Jews who, like Anne Frank, were caught anyway? Because this is clearly what Kant argues, the critics continue, his discussion of lying to the murderer brings out the true, dark side not only of Kant's universalistic moral theory but also of Kant himself. We get the gloomy picture of a stubborn, old academic who refuses to see the inhumane consequences of his theory, and instead grotesquely defends the inhumane by turning it into an a priori, moral command. In this paper, I argue that Kant's discussion of lying to the murderer at the door has been seriously misinterpreted. My suggestion is that this is primarily a result of the fact that the Doctrine of Right with its conception of rightful, external freedom has been given insufficient attention in Kant interpretation. It is in the Doctrine of Right that Kant discusses rightful interaction in the empirical world. Hence it is in this work we find many of the arguments needed not only to understand his analysis of lying to the murderer in "On a Supposed Right to Lie from Philanthropy," but also to analyze the added complexity the Nazi officer brings to the example. When we interpret lying to the murderer in light of Kant's discussion in the Doctrine of Right, we can make sense of why lying to the murderer, although a wrong, is not to wrong the murderer, why we become responsible for the bad consequences of the lie, and finally why lying is to do wrong in general. The account of rightful freedom provided in the Doctrine of Right also makes it possible to see why replacing the murderer with a Nazi officer adds philosophical complexity rather than just one more reason to reject Kant's view. The introduction of the Nazi officer requires us to consider the role of a public authority in ensuring rightful relations in general and what happens to the analysis of lying when rightful interactions as a matter of fact are no longer possible. We will see that the only time doing wrong in general by lying is legally punishable is when we lie to or as a representative of the public authority. The Nazis, however, did not represent a public authority on Kant's view and consequently there is no duty to abstain from lying to Nazis. Two further strengths of Kant's account, I propose in the final sections of the paper, lie in its ability to critique how European legal systems aimed to deal with the Nazis after the war was over and in its contribution to our understanding of the experiences of war heroes. Kant's short essay "On a Supposed Right to Lie from Philanthropy" (hereafter "Supposed Right to Lie") is a response to a challenge raised by Benjamin Constant in 1797. Kant begins by quoting Constant's challenges to him. Constant argues: The moral principle, "it is a duty to tell the truth" would, if taken unconditionally and singly, make any society impossible. We have proof of this in the very direct consequences drawn from this principle by a German philosopher [Kant], who goes so far as to maintain that it would be a crime to lie to a murderer who asked us whether a friend of ours whom he is pursuing has taken refuge in our house. . . . It is a duty to tell the truth. The concept of duty is inseparable from the concept of right. A duty is that on the part of one being which corresponds to the rights of another. Where there are no rights, there are no duties. To tell the truth is therefore a duty, but only to one who has a right to the truth. But no one has a right to a truth that harms others. (8: 425) Constant here argues against Kant that if it is always wrong to lie, then society is impossible, by which, I believe, Constant means that it would be practically impossible to protect oneself against violent aggressors. In addition, Constant maintains, whether or not lying is wrong depends on the circumstances, that is, to whom we are lying. Murderers do not have a right to the truth and hence no one has the corresponding duty to tell them the truth. Constant therefore concludes—allegedly against Kant—that lying to murderers should not be considered a crime. The traditional reading of Kant outlined in the introduction is very much in line with Constant's general take on Kant. In addition, of course, it takes Kant's response to Constant in the "Supposed Right to Lie" as more support for the reading. And if one were to choose a particular part of Kant's essay that appears to confirm the traditional view, one is likely to choose the following passage: . . . if you have by a lie prevented someone just now bent on murder from committing the deed, then you are legally accountable for all the consequences that might arise from it. But if you have kept strictly to the truth, then public justice can hold nothing against you, whatever the unforeseen consequences might be. It is still possible that, after you have honestly answered "yes" to the murderer's question as to whether his enemy is at home, the latter has nevertheless gone out unnoticed, so that he would not meet the murderer and the deed would not be done; but if you had lied and said that he is not at home, and he has actually gone out (though you are not aware of it), so that the murderer encounters him while going away and perpetrates his deed on him, then you can by right be prosecuted as the author of his death. For if you had told the truth to the best of your knowledge, then neighbors might have come and apprehended the murderer while he was searching the house for his enemy and the deed would have been prevented. Thus one who tells a lie, however well disposed he may be, must be responsible for its consequences even before a civil court and must pay the penalty for them, however unforeseen they may have been; for truthfulness is a duty that must be regarded as the basis of all duties to be grounded on contract, the laws of which is made uncertain and useless if even the least exception to it is admitted. To be truthful (honest) in all declarations is therefore a sacred command of reason prescribing unconditionally, one not to be restricted by any conveniences (8: 427).1 According to the traditional reading, we should view Kant's responses to Constant through the lenses provided by, for example, his account of the moral law in Groundwork. In this work, we learn that all moral actions must be based on a maxim that can be universalized and that we must do the right thing because it is the right thing to do—or from duty. When viewed this way the "Supposed Right to Lie," including passages like the one quoted above, is seen as accomplishing two goals: it simply repeats how one ought never to lie as the maxim of lying cannot be universalized, and it cashes out the implications of this moral principle with regard to people's enforceable rights and duties against one another. Because lying is not a universalizable maxim, Kant is seen as saying, lying to the murderer is a crime. And of course, it is continued, this must mean not only that one cannot lie to a run of the mill murderer at the door, but also not to the worst of murderers, such as the Nazis. Lying to Nazis is therefore also a crime. There are no exceptions to the rule—the truth must be told. To make things even worse, in the above passage Kant can be seen as arguing that if you lie despite the immorality of doing so, you are also legally responsible for the bad consequences of the lie. So, for example, if the Jew hiding in your house sneaks out while you are lying to the Nazi, and hence as the Nazi walks away from your house she actually captures the fleeing Jew, then you are partially responsible for what happens to the Jew even if it was not foreseeable. But this analysis is clearly absurd and morally repugnant. If this is all Kant has to say about the issue, the critics reasonably conclude, then the theory's irreconcilability with any test of reason is demonstrated. Despite the popularity of the traditional interpretation of Kant's argument in the "Supposed Right to Lie" and despite the apparent textual support of it, I believe it must be mistaken. To start, it seems clear that an interpretative approach that focuses on issues of general morality is wrong, because Kant explicitly says throughout the essay that he is limiting the argument to a discussion of justice or what Kant calls "right."2 For example, in the block quote in the previous paragraph Kant discusses only how lying to the murderer should be analyzed from the point of view of "public justice," meaning how public courts should respond to such cases (8: 426–29). Kant never discusses first-personal ethics (universalizable maxims and actions from duty) in this paper. In fact, the only mention Kant gives to ethics and virtue serves to emphasize that he is not concerned with these issues, but only with right or justice.3 Furthermore, in The Metaphysics of Morals, Kant carefully distinguishes between analyses of justice (right) and analyses of virtue (ethics), and he rejects the idea that justice is merely an enforceable subsection of persons' general ethical duties in the way Constant and the traditional interpretation assume.4 Instead, Kant sees justice as merely concerned with people's exercise of "external freedom" (setting and pursuing ends of their own in the world), whereas virtue concerns people's exercise of "internal freedom" (acting on universalizable maxims from duty). Justice is limited to what can in principle be coercively enforced (exercises of external freedom—setting and pursuing ends in the world), whereas virtue is limited to what cannot in principle be enforced (exercises of internal freedom—doing what is right simply because one ought to do it.) Hence, although external freedom and internal freedom constitute freedom as such for Kant, he rejects the view that justice is simply an enforcement of our ethical duties or a subset of our ethical duties (6: 218–28). To give one example of particular relevance here—an example I return to below—even though the maxim of lying is not universalizable, Kant rejects the idea that not lying or truth telling as such is an enforceable duty of justice. And the reason is that words do not, in general, have coercive powers (6: 238). Finally, the fact that Constant and the traditional interpretation make Kant come across as an unreflective, dogmatic brute also raises a red flag. Even if Kant is wrong, it is extraordinarily unlikely that he suddenly—after fifty years of writing philosophy that revolutionized the Western tradition—presented as flat-footed a defense of his theory as these interpretations suggest. The sympathetic reader will therefore be most skeptical about ascribing to Kant such an interpretation. But is there an alternative, more plausible reading of Kant on the question of lying? Before turning to what I believe is the better, and fortunately also philosophically and morally more reasonable interpretation of Kant's essay on lying, let me note why three alternative, sympathetic defenses of Kant's account of the problem of lying to the murderer are equally unsupported by the text. First, one might emphasize that on Kant's account you never have to answer people's questions just because they ask. There is nothing morally problematic about refusing to answer questions from murderers. Instead, the homeowner may simply ask the murderer to go away as it is none of his business who is in his house. The claim is that Kant's account of truth telling neither entails that one has a duty to disclose information to just anyone, let alone to strangers and murderers, nor that one has no right to privacy. Second, it is tempting to respond to the problem by saying that on Kant's account we can answer, "yes, Ms. X is in the house, but you are not allowed into my house." The homeowner may then continue by saying that if the murderer has some unfinished business with Ms. X, he better contact the police and settle the matter of controversy in a public court of justice. Yet, it is clear that these two responses do not permit us to conclude that we can lie to the murderer at the door. Moreover, these responses are explicitly ruled out by the way in which Kant sets up the example. Here, Kant emphasizes the questions at hand: first . . . whether someone when he cannot evade an answer of "yes" or "no," has the authorization (the right) to be untruthful. The second question is whether he is not, indeed, bound to be untruthful in a certain statement which he is compelled to make by an unjust constraint, in order to prevent a threatened misdeed to himself or to another (8: 426). Kant therefore explicitly says that he is talking about cases in which someone is unjustly coerced into saying something to avoid wrongdoing to oneself or someone else and cases in which the person answering the door does not have the option of asking the murderer to go away. A third, also ultimately unsuccessful, way of trying to get out of the problem involves appealing to the Kantian idea that one does not (technically) know whether the victim is in the house. After all, one cannot be sure whether the person sought is (still) in the house, and so one might argue that one can truthfully say that one simply does not know. Yet Kant also rules out this response in the opening pages of the essay. Kant emphasizes that at stake is not a right to the "objective truth" as this is "tantamount to saying that . . . it is a matter of one's will whether a given proposition is to be true or false," which is nonsensical (8: 426). Instead, what is at stake is "truthfulness" (ibid.), or telling "the truth to the best of your knowledge" (8: 427). Hence, if to the best of your knowledge the victim is in your house, then the truthful answer is that the victim is in your house. We noted above that Kant's analysis of lying to the murderer at the door in the "Supposed Right to Lie" is an analysis of the problem from the point of view of justice or right and not from that of ethics or virtue.5 So why, then, and in which sense does Kant mean that lying is unconditionally wrong and punishable from the point of view of right? To see this, let us first pay attention to the ways in which lying is and is not a wrong according to Kant's Doctrine of Right. In this work, Kant argues that everyone is born with a right to freedom, or a right to "independence from being constrained by another's choice . . . insofar as it [one's exercise of external freedom] can coexist with the freedom of every other in accordance with a universal law" (6: 237). On Kant's theory of right, to interact rightfully is to set and pursue one's own ends in space and time—to exercise "external freedom"—in ways reconcilable with other persons' right to do the same under universal law.6 Interestingly, on Kant's account, to lie as such is therefore not necessarily to wrong another person from the point of view of justice. Others do not have a right against you that you tell the truth, because if they did, they would have an enforceable right to what is yours (your information), and this is irreconcilable with your innate right to freedom. Hence, in contrast to what Constant thinks, Kant actually rejects the claim that a person has a right against another that he tells her the truth. Indeed, against Constant Kant argues that with regard to merely the question of whether or not a person has a right against another that he tells her the truth, it is irrelevant whether or not telling the truth harms anyone. A person simply does not have a right against another person that he tells her the truth. In the "Introduction to the Doctrine of Right," Kant expresses the above points by arguing that the innate right to freedom is to be "authorized to do to others anything that does not in itself diminish what is theirs, so long as they do not want to accept it—such things as merely communicating his thoughts to them, telling or promising them something, whether what he says is true and sincere or untrue and insincere . . . for it is entirely up to them whether they want to believe him or not" (6: 238). Words in general do not have coercive power on Kant's view. Although we will return to two exceptions shortly, the general point is that I cannot obtain material objects belonging to others simply by uttering words. Hence, I can say whatever I want, including telling a lie, because simply by uttering my thoughts I cannot deprive others of what is theirs; they can, after all, simply ignore what I am saying. It's a "sticks and stones" point. From the point of view of justice, therefore, you do not wrong another simply by refusing to give him some particular piece of information or simply by lying to him. Moreover, it is totally up to you what information you want to share with another and whether, in fact, what you say is insincere or untruthful. Indeed, as in the case of the murderer at the door, if someone forces you into a situation from which you cannot escape unscathed without giving up your information, this person wrongs you, not the other way around. This is why Kant says in the "Supposed Right to Lie," as noted above, that the case of the murderer at the door involves one person (the murderer) subjecting another to "an unjust constraint" (8: 426). It is an unjust constraint because the murderer at the door does not have a right to obtain your information and hence threatening you to get it wrongs you. To lie as such, therefore, is not to wrong another person from the point of view of justice, because lying as such is not a coercive act, understood as a hindrance of someone else's external freedom (her ability to set and pursue ends of her own with her means). In general, lying does not involve coercively taking something that belongs to another person, and so it does not involve depriving another of her external freedom. This is also why, from the point of view of justice, the only two times lying as such is a wrong against another person are when the lie deprives another of her rightful honor (defamation) and when it is part of a contractual negotiation.7 In these cases, the lie serves to coercively deprive someone else of something that rightfully belongs to her, either her reputation or something that would not be agreed to except under false pretenses. Lies in these scenarios are acts of coercion as they take some of the other person's means without that person's consent, which is to hinder the other person's external freedom. In a case of wrongful defamation a person is deprived of her rightful honor by being denied public recognition for the life she has lived. Actions are wrongly imputed to her or actions she has done are denied her. By so doing, the defamer treats the defamed person's honor or reputation as if it were her own means. Similarly, in the case of contracts, instead of obtaining a thing or service through consent, the liar obtains it through deception. Lying as part of contractual agreements is akin to stealing and not only voids the contract, but also is a punishable wrong. In light of the above, we can appreciate why, in the "Supposed Right to Lie," Kant does not argue that lying to the murderer at the door is a wrongdoing because it involves wronging the murderer. Against Constant's interpretation of Kant's position, Kant denies that lying to the murderer is to commit a crime against the murderer. Indeed, because the murderer does not have a right to your information, he actually wrongs you by threatening you into telling the truth. So, of the murderer and the liar, the murderer is the one committing the crime, not the liar. But Kant's account does not stop here, for the liar does do wrong, even though it is not against the murderer. Kant surprisingly argues that the liar commits wrongdoing "in general" (8: 426, 429) when she lies. The duty not to lie is not a duty of justice we hold against any particular other person, say the murderer, but a duty each one of us has towards "everyone" (8: 426). Kant expresses this point also by saying that though by lying "I in fact wrong no one, I nevertheless violate the principle of right with respect to all unavoidable necessary statements in general (I do wrong formally though not materially)" (4: 429). I do not wrong anyone in particular ("materially"), but I wrong everyone by making a condition of rightful interaction impossible in principle ("formally"). Rather than this making lying less problematic from the point of view of right, however, Kant sees it as making it more problematic: by lying one does not wrong another particular person, but humanity, by acting in a way irreconcilable with rightful interactions as such (ibid.). Lying makes it impossible to interact both in a way consistent with rightful honor and contracts and also generally because it undermines the trust even mundane consensual interaction requires. For example, actions requesting information about directions, about meetings, or about other people and so on are all incompatible with lying. All such consensual, rightful interactions rely on truth telling. Hence, lying is wrong in general as it is inconsistent with a world of rightful interaction, even when—as is generally the case—it is not a wrong of justice against another, particular person.8 At this point, it is important to note one more important aspect of Kant's analysis of the murderer at the door. His primary aim is to establish how a public court of justice should consider cases where someone faces situations in which she could either tell the truth or lie to a potential wrongdoer (8: 427). The focus is not to unravel complicated scenarios such as those involving Nazis and other unjust regimes, but on how a just state's legal system should handle cases involving an innocent private person's imparting of information about a victim to a potential wrongdoer. His basic claim is that if a person chooses to stay out of the interaction between the murderer and his potential victim by telling the truth to the potential murderer, then a public court of justice cannot punish her for having done so. In these situations, only the murderer can be punished because the entire action is traceable only to him. In contrast, when a person lies to someone, she deliberately deceives another person (the potential murderer) with regard to his perception of the empirical world, and in this way she becomes a co-author of the action undertaken. The liar, therefore, is punishable for the bad consequences of the lie. To illustrate the logic of Kant's reasoning, let us first consider a case of lying not to a murderer, but simply to another person. According to Kant, if someone asks you for directions and your lying answer sends him into an unsafe neighborhood where he is robbed, then you are partially responsible for the resulting robbery despite having no intention or foreknowledge of the robbery. Through lying, you have chosen to deceive another with regard to the correct description of the world in which she acts, and this deception is, in part, what allows the robbery to take place. Hence, you are responsible for the bad consequences of your lie. Insofar as this example helps to illustrate the case of lying to the murderer at the door, it is important to take care not to misunderstand what Kant is saying. Importantly, we should note that Kant's analysis as outlined above proceeds on the assumption that a friend "has taken refuge" in your house (8: 425). The argument, in my view, proceeds to establish two points. First, you cannot be under a legal obligation to lie to protect someone who has taken refuge in your house—not even your friend. Otherwise, anyone fleeing into another person's home would have a legal right against the homeowner that they be helped in their escape. Moreover, truth telling on the part of the homeowner—or staying out of others' troubles—would be punishable. If this were the case, then persons would be seen as having the right to choose to put each other into situations where they must lie to dangerous murderers rather than having the option to stay out of it by telling the truth. And Kant maintains that because persons have an innate right to freedom, a public court can neither give any of its subjects a right against others to be helped in this way, nor can courts fail to respect people's rights to avoid wrongful interactions by telling the truth. Therefore, a person cannot be seen as committing a wrongdoing against a person hiding in her house if she refuses to take part in the lying interaction with the murderer. In contrast, and this is the second point, by unilaterally choosing to partake in the interaction, namely by lying about the location of the victim, the homeowner also becomes responsible for the unintended, yet bad consequences of the lie. The reason is that by lying you choose to take part in determining a particular course of actions by setting up a deceptive framework in which another acts. That is to say, when you lie to the murderer, it is obviously not your intention to help the murderer capture the victim—quite the opposite. But if your action (lie) actually makes it possible for the murderer to get to his victim, then you are legally responsible ("you can by right be prosecuted") for these bad consequences. It may, after all, be the case that the person who fled into your house is counting on you to tell the truth, and while the murderer is searching the house she plans to make her escape. By unilaterally choosing to try to set up a deceptive framework for the murderer and his victim, even under the best of intentions, you run the risk of being wrong; by taking that risk, you incur responsibility for the bad consequences. To see more clearly which scenario Kant is considering, we may distinguish the case of the person who has taken refuge in your house from three other cases where your decision to lie is not a unilateral decision of the kind described above. First, consider the case in which the fleeing friend asks you both whether she can hide in your house and whether you will lie for her. You answer "yes" to both questions, but in fact you have lied, because you do not intend to lie for her. In this scenario, clearly, you become an accomplice in the murder when you tell the murderer where your friend is. One cannot lie to one's friend (saying that one will lie to the murderer), tell the truth to the murderer (about the friend's location) and then claim that because one told the truth to the murderer, one is not legally responsible for the bad consequences of the lie to one's friend. This is therefore not a case in which one's right to stay out of a situation must be protected, for there must be truth telling throughout the process in order to stay out of it. A second case goes as follows. Assume that you honestly promise the fleeing friend that you will lie, but as a matter of fact, it turns out that, face to face with the murderer, you are so scared that you tell the truth, revealing your friend's location. I believe that Kant would say that you are not to be punished also in this case. Consenting to lie on behalf of a friend cannot be understood as carrying legal obligations. Others cannot have the right against you that you perform actions that are wrong in general, such as lying, even if consensual. That you may not be able to go through with the lie is a risk that your friend runs by asking you. Hence, even if you consent to partake, you do not thereby incur legal obligations.9 A third and final case involves the following scenario. Assume that you and your friend consent and you go through with the agreement by lying to the murderer. But your friend, despite your agreement to the contrary, chooses to run out of the house and is caught by the murderer. In this case, the reason why your friend is captured is not your lie, but either your friend's failure to act according to what the two of you agreed to do or her decision to act otherwise despite your agreement. Thus, by acting contrary to the agreement, your friend assumes the risk and the responsibility of being caught. The reason I draw attention to these different scenarios is to emphasize that in the original case Kant is considering only how a public court should analyze a situation in which someone runs into your house to hide ("takes refuge") and you are considering what to do as the murderer is banging on the door. Kant argues that if you unilaterally choose to partake in what follows by lying, the fact that you do it from a good heart does not, as such, eradicate your responsibility for any bad consequences following from your lie. By telling the truth, in contrast, you do not take part in the interaction, but leave it open what will happen next: whether the victim sneaks out, whether the neighbors and you manage to subdue, incapacitate or kill the murderer as he i
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