Condoms and Aids

The linked article [link to article in the Sunday Herald now broken, grr] indicates the poor level of debate on this topic in the popular press. Archbishop Conti (of Glasgow) is trying to make a somewhat complicated point. I'd like to summarize some of the arguments doing the rounds.

First, the natural law prohibition (according to the Church) is against contracepted sex. In terms of intentions it covers acts with (as Finnis calls it) a double intention: both the intention to have sex and the intention, if one has sex, that this act of sex should be prevented from resulting in pregnancy.

This gives rise to the following arguments.

Non-contraceptive uses of the Pill: for controlling menstruation etc.. The permissibility of this is uncontroversial. The permissibility of marital sex in this context is not affected - there is no contraceptive intention.

'Nuns in the Congo': can take the pill when fearing rape. There is no intention to engage in a sexual act. This sounds odd but is widely accepted in the Church. It depends of course on the strictly contraceptive effect of the pill (as opposed to the abortifacient effect).

Morning-after Pill for rape victims: an extension of the last argument. Finnis has defended this, again on the basis of the contraceptive effect of the pill. Its permissibility depends on the intention, and an informed person will make use of this morning after pill after rape with a contraceptive intention (as opposed to an abortifacient intention) only in certain conditions, depending on the time of ovulation and the time since the rape. There is a good precedent for this in the classical discussions (see Henry Davis Moral and Pastoral Theology, Vol II, p171). But the conditions attached to it undermine its practicability.

Non-contraceptive use of condoms: to protect against infection. This seems to be Conti's point. The parallel with the non-contraceptive use of the Pill is inescapable. The fact is that all sorts of things can render a person temporarily or permanently infertile, notably pregnancy, lactation, disease and certain kinds of medical treatment, and even if these things have been entered into voluntarily they do not affect the permissibility of marital sex, assuming they have not been done with a contraceptive intention.

The lesser of two evils argument: if people are going to fornicate, commit adultery, or resort to prostitution, it is better they do so with condoms, because of the risk of infection, and the injustice done to the children who are conceived. This seems to have been Cardinal Martini's argument.

Some uses of this form of argument are uncontroversial: if a pregnant women is hesitating between an abortion and giving her child up for adoption, the agencies of the Church will encourage her to do the latter - despite the fact that doing so is a serious sin. (The child has a right to be brought up by his natural parents.) It is far preferable, of course, to abortion. The efforts of Catholic charities to discourage abortion actually encourage the abandonment of children, but that (non-intended) result is less bad than the alternative, which is a larger number of abortions.

Other uses are controversial: needle-exchange programmes for drug-addicts; efforts to make prostitution less dangerous and unpleasant; free clean drugs for addicts; etc.. It is always a matter of balancing the seriousness of non-intended harms, and has be considered on a case-by-case basis.

Countervailing arguments draw attention to the non-intended harms of the promotion of condoms for infected couples.

The material scandal argument. It would cause scandal for the Church to allow the use of condoms in a sexual context (blowing them into balloons is clearly ok), because for the simple the natural law prohibition is against using contraceptives, simpliciter. 'The Church is against condoms.' This sounds simple minded, but highly paid media executives are very simple minded indeed.

The infrastructure argument. Distributing condoms and educating people in their use will increase the contraceptive use of condoms to a disproportionate extent. Collaborating in the policies of agencies and governments who promote contraception as a thing good in itself, will be even worse.

The Russion roulette argument. Condoms are far from fail-safe in preventing pregnancy, and the same will be true of preventing infection. (On the one hand the virus has to enter the bloodstream, but on the other an infected person is infectious all the time.) For a married person who knows he is HIV positive to have sex with his uninfected partner with a condom, would be for him to play Russian roulette with his partner's life.

On reflection, whatever one may think of the principles appealed to in favour of a permissive attitude to condoms, and whatever balance of harms derives from the earlier arguments, the Russian rouletter argument seems to be decisive. How could it be right to subject a spouse this this appalling risk, and to do so without necessity, and repeatedly?

Post Script: since writing the above I have encountered a different approach: that 'condomistic' intercourse is itself wrong, even within marriage, even with no contraceptive intention, because the condom barrier prevents it from being an act of mutual self-giving. This is an attractive argument, and is set out by William May here.

Torture: reply to Joseph S.

Situation A: we have a ticking timebomb planted by a terrorist, but we don't know where. His wife didn't know that he was a terrorist but she does know where he's been spending a lot of time lately. She won't, however, say where until a lawyer skilled both in our law and the law of her native land and religion arrives to witness her statement. We don't have time to wait for this lawyer; is it OK to torture her to get the information out in a couple of minutes?

Situation B: we have a ticking timebomb planted by a terrorist in our hands. Only one person can defuse this very intricate bomb safely. But he is retired now and won't leave the bedside of his dying wife. Can we torture him to get him to leave her and defuse the bomb?

With regards to both A and B, Joseph S. suggests that yes, it is morally permissible to torture the person in question. I disagree. Even if they are guilty of a wrongdoing, it is surely not one that deserves torture. In any case, it is plain that we aren’t considering torturing them as punishment for their wrongdoing, for we’d stop the torture as soon as they agreed to help (and not resume it afterwards), even though the torture might go on for different times at different levels of intensity for different cases, contrary to what we expect from punishment.

Also consider the following case: suppose the terrorist’s innocent wife wants to cooperate but cannot remember where her husband left the bomb. The psychologist says that she’ll remember under torture. She doesn’t submit voluntarily to torture, for she believes it’s always wrong. (Her belief is correct if the argument of my paper is sound.) Surely it wouldn’t be OK to torture her to get her to remember?

Joseph S. also suggested the following: anyway, if we define ‘material aggressor’ as ‘person who is a causal factor in an impending harm, and harming whom could avert the harm’, then they are material aggressors, and the question of guilt does not even arise.

I think, however, that this definition will be too broad. It will certainly include (contrary to the Vatican) babies that are causing their mothers harm, and would include, surely, the fat potholer whose stuck body prevents us from getting out of the cave, or the bystander that is in my way as I rush to escape some harm.

Note that there are other contexts than ones involving agents of the state in which the question arises: suppose that my daughter has been kidnapped and I have captured one of the gang, who tells me that my daughter has been buried alive in an airless coffin and has only hours to live. He refuses to divulge where she is buried. May I beat the information out of him? No, I say.

Daniel

When is it permissible to kill in self-defence?

With regard to the first post on this blog, I'd like to raise for broader discussion the question of what constitutes material (as opposed to formal) aggression. The question can be posed without the jargon: when is it morally permissible to intend to kill someone in self-defence? One answer would be:
(A) It is morally permissible to intend to kill someone in self-defence only if that person is maliciously intending to kill (or cause grievous bodily harm to) one.
There are, however, some problems with this:
(i) it wouldn't allow one to kill in self-defence in war time (for the enemy soldiers wouldn't have malicious intent);
(ii) it also wouldn't allow one to kill in self-defence if one were about to be wrongly judicially executed (e.g. by mistaken identity);
(iii) it wouldn't allow one to kill in self-defence if one were attacked by someone acting in (what he or she thought was) *his or her own* self-defence;
(iv) it wouldn't allow one to kill in self-defence if one were subjected to grievous bodily harm by a doctor under the mistaken impression that he or she was performing a surgically beneficial procedure;
(v) most importantly, it wouldn't allow one to kill in self-defence if one were attacked by a madman or a drunk or someone under the influence of drugs;
(vi) also, it might well be that someone endangers my life maliciously without intending to kill me, e.g. if I am a shipwreck-survivor on a small plank in the open sea, someone tries to throw me off not to kill or hurt me but to save him or herself--I think that here it would be permissible to kill my assailant even though he or she doesn't intend to kill or hurt me.
At the other extreme would be this principle:
(B) It is morally permissible to intend to kill someone in self-defence only if that person would kill (or cause grievous bodily harm to) one if one weren't to kill that person.
But (B) seems too permissive for the following reasons:
(i) it would allow a mother to kill her foetus if it were endangering her life (though intended abortion is always condemned by the Vatican);
(ii) it would allow one to kill clumsy bystanders that were about to knock one in front of a bus;
(iii) it would allow one to kill a child that was playing with a handgrenade;
(iv) it would allow one to kill the person falling off a building on top of one.
Some of these cases are a bit tricky, and there is certainly controversy surrounding them.
I propose a midway principle:
(C) It is morally permissible to intend to kill someone in self-defence only if that person is about intentionally to kill (or cause grievous bodily harm to) one.
The point about (C) is that it allows one to kill people that are about intentionally to perform an action that amounts to killing or the causation of grievous bodily harm even if they do not intend to kill or cause grievous bodily harm. Thus, one may kill the person trying to tip one off the plank into the sea since he or she intends to perform the action of tipping one off, which will amount to killing or causing grievous bodily harm, even though the assailant doesn't intend to kill or cause grievous bodily harm. It will not, however, allow one to kill a child, to abort a foetus, or kill a clumsy bystander or a falling person, since they aren't intentionally about to perform an action that would amount to a killing or infliction of grievous bodily harm. It would allow one to kill a mad person or a drunk or someone under the influence of drugs provided that he or she was about intentionally to perform the action in question: there is a difference between a drunk's drunkenly pushing one over a cliff and a drunk's drunkenly falling into one knocking one over a cliff.

What do others think?

Captain Oates and Altruistic Suicide

Quentin de la Bedoyere (QB), writing in the Catholic Herald (successive issues, May 2006) raises the question of Captain Oates leaving his companions, on their antarctic expedition, in order to maximise their chances of survival (since he would not be using up stores etc.). Oates simply left the camp and walked into the wilderness to certain death. Was this wrong?
QB addresses one response: it was permissible because Oates's intention was to benefit his companions, and not to die himself. QB replies: Oates accomplished his helping of the others by his own death. Since one must intend one's means, he intended his death.
I reply: Oats's death was not a necessary part of Oates's plan; it was his absence, or better, his non-use of the scarce resources, which was necessary, and this was accomplished by his walking away from camp (to certain death).
Similarly, the man who jumps out of an overladen life-boat, to lighten it, intends to lighten it, and to jump out (as a means to that), but does not (necessarily) intend his own death, which does nothing to advance his plan of saving the remaining people. (On this example see Henry Davis, Moral and Pastoral Theology.)
As a matter of fact, Oates is on record as advocating suicide using a revolver as a way out in these situations, and wanted a revolver on the expedition for the purpose. This would obviously involve the intention of death, since the only way shooting oneself brings about one's non-use of scarce resources is by one's being killed. This suggests Oates's intention may have been to kill himself. However this does not change the principles at work in the case.

Kant's Religion on Ritual: reply to Lucy Allais

My original argument: Kant wrongly rejects outward religious obligations (such as rituals), in Religion within the Realm of Reason Alone, failing to see that (for example) sacramental rituals purport to effect a metaphysical change, and are thus not (in the view of the participant) 'empty'.

Lucy's reply: Kant is here relying on the conclusion of an argument in the First Critique, in which he attempts to show that such metaphysical changes are unknowable. Thus no participant in a sacramental ritual could know that there will be or has been a metaphysical change, and thus there is no justification for the participation. Accordingly, any objection to Kant on this subject should start with the First Critique, and not with the remarks about ritual in the Religion.

On further reflection, I reply: First, the justification I sought for the ritualist was subjective, not objective, and Kant's argument against the knowability of metaphysical facts would not directly impinge on this. (I mean that it is a matter of what the participant believes to be the case, not what actually is the case, which determines the blameworthiness of his action. The ritualist believes he knows the necessary metaphysical facts, and so on.)

Second, Kant is willing to countenance the 'postulation' of three admittedly unknowable metaphysical facts 'as problematical hypotheses', which nevertheless are rightly used as assumptions in deciding what to do: Viz. the existence of God, the freedom of the Will, and the Afterlife. This provides a model for dealing with further metaphysical claims, such as Transubstantiation. Kant thinks that he is licensed to postulate the three claims, and not any others, because they are in different ways absolutely necessary for us to postulate if we are to act rightly and with moral worth. The claim that the reality of Transubstantiation is not something which is necessary for us to postulate, certainly makes sense from Kant's point of view, but is vulnerable to theological objections. Suppose, say, that God revealed that it was after all necessary? ('If you do not eat My Flesh.. you can have no life in you.')

In fact Kant refuses to dismiss the possibility of divine revelation to individuals, but claims it cannot have any moral impact, because it is necessarily not 'universal'. It is this argument which gets the most exercise in the Religion, not the unknowability of metaphysics.

Third, I referred to the Catholic Sacraments as an extreme example of a ritual not being 'empty' and mere outward actions and words - according to their devotees. However there are many religious ritual obligations which do not rest on metaphysical claims such as transubstantiation. Ordinary prayer (praise and thanksgiving), for example, is regarded (in the Tradition) as a obligation upon all rational beings, not contingently upon a revealed command, but as the consequence of the recognition of the existence of God, which can be recognised by arguing from the effects to the cause (so the classical argument goes). Kant rejects such teleological arguments, but he does postulate the existence of God, precisely in order to take account of its practical consequences. He does not regard the existence of God as an indication that we are obliged to engage in prayer, however, and it is not clear why. Again, I suspect that theological assumptions are in play here.

Fourth, Kant actually approves of rituals designed to raise heart and mind to God. We should use 'certain formalities' to make ourselves worthy of divine assistance; these are 'observances which have no intrinsic value but yet serve as a means to the furthering of the moral disposition.' (Part II Section 3) See also the General Observation at the end of this Section: rituals with metaphysical import are allowed a purely ethical role.

This is of great historical interest, because (thought not without precursors) it is the manifesto for 'liberal' modern theology. It is clearly influenced by the (usually incomplete) Protestant rejection of the supernatural in religion, in favour of the ethical. Classical Protestant moves are to say that, for example, saints can be allowed a role not as intercessors in heaven (answering our prayers), but as ethical examples for our imitation; church services do not create a metaphysical reality, but retain a role as exhortations (and usually very tedious ones); etc. etc..

However, despite this, Kant continues to insist that religious observances cannot be moral duties: 'one can recognise its useful influence... and at the same time deny to it, taken as the illusory duty of divine worship, all influence upon the concept of genuine (that is, moral) religion.' Why? Because it is historically developed or revealed, and so is not universal, and genuine moral duties are universal. A familiar argument, but a bad one: why not say that the duty to worship God is universal, but (in Kantian terminology) an imperfect one? Or indeed one that can be perfected, for a certain group, by a divine revelation or a historical church.

More needs to be said about Kant's argument and the best response to it, but it does at least seem to be a moral and theological issue, and not a metaphysical one.

Forgiveness

Forgiveness: some comments on Lucy Allais’s ‘Aspirational Forgiveness’

Joseph Shaw

This is one of those topics in which philosophers are uneasily aware that there is a theological background to ordinary thinking, without understanding, or wanting to get involved in, the theology. So a couple of thoughts about that might be useful, although I’m far from being an expert on that either.

The ‘foundational prayers and creeds’ Calhoun refers to as establishing the Christian idea of forgiveness is presumably the Fifth Petition of the Lord’s Prayer, ‘Forgive us our trespasses, as we forgive those who trespass against us.’ This is illustrated by the Parable of the Unforgiving Servant, and other passages. I note this because an easy way in to the theological literature is to see the discussion of either in biblical commentaries, or, especially, the petition-by-petition discussion of the Lord’s Prayer in the 16^th C. Catechism of the Council of Trent, or the new Catechism of the Catholic Church.

Two important things which are worth saying are these: Christian forgiveness is not exactly obligatory, since there is great emphasis on its being voluntary; and Christian forgiveness does not wipe away all need for punishment. Both these points are important, but easy to miss.

On the first: The major incentive for forgiveness is the desire for a similar forgiveness from God. And in each case, what actually happens in forgiveness is that the forgiver disclaims at least some what is owed to him in justice. (This obviously can’t be obligatory: it can’t be a requirement of justice to waive what is just.) Since we forgive what is owing to us personally, we can forgive an injury without being unjust; it is supererogatory. (We have the right to give up what we have a right to demand.) However, in the context of a Christian’s relationship with God, a failure to forgive others would be scandalous, since God has forgiven each of us much more—hence the parable of the unforgiving servant, who refused to forgive a trivial debt, having been forgiven himself a vast one. If we hope, not for justice, but for a supererogatory forgiveness, from God, we have to behave in a parallel way ourselves.

This is, incidentally, in line with your interpretation of Bishop Butler. Butler is following the standard orthodox line here, as given in the Catechism of the Council of Trent, for example. Feelings of resentment may remain, and insofar as they are involuntary, should not be a cause for scruples in the Christian, who has genuinely given up plans for revenge etc..

On the second: In withdrawing our claim on what is owed to us, we don’t necessarily obviate the need for punishment, let alone repentance. It is interesting that you mention absolution here, because, odd as it may seem, real absolution does not remove one’s liability to punishment. What it does is commute eternal punishment due to mortal sin (if the penitent has confessed a mortal sin), to temporal (ie non-eternal) punishment (ie purgatory). This is still due to God’s justice, even though the penitent has clearly received God’s forgiveness.

And even this kind of absolution is only possible because of the sacrifice of Christ on the cross. Christ’s sacrifice is an offering to God which is sufficient to make up for all the sins throughout history, and Christ made this offering available to us to satisfy God’s justice, making God’s forgiveness possible. God forgives (ie, no longer requires what is owed to him in justice, which is eternal punishment), because he graciously accepts the offering of Christ, offered by the penitent in lieu of what he owes God. (So God’s forgiveness is still supererogatory, but it does not go so far in merely giving up the demands of justice, as to trivialise the wrongdoing and the wrongdoer: a point emphasised by Richard Swiburne in his book on atonement.)

On the other hand, sins which are forgiven are ‘blotted out’, not merely ignored, and no longer act as a barrier in one’s relationship with God. This is in sharp contrast with the Lutheran and in general Protestant view, in which God merely ignores our sins. In Catholic thinking, God makes us genuinely better people. Our souls are injured by sin, and they are healed by God when he forgives us.

It is interesting to think of the philosophical debate in the light of this doctrine. If one doesn’t want to talk about God, but wants to give a sympathetic account of the intuition that forgiveness is possible and good, and even quasi-obligatory, the paradoxes your paper started with arise very quickly. However, it still makes sense to say that one is not being unjust in waiving what one is owed; and that this is a good thing, when seeking to restore a relationship with someone who is seeking forgiveness. What is not possible to see is how justice might be satisfied from a different source, ie Christ’s sacrifice; and how forgiving others has an important role in one’s other important relationship, ie with God.

Forgiveness of the unrepentant, I think, is a slightly different animal, although the same word is used. I think that the theological context of this is the command to love one’s enemies, and pray for the persecutors, and not curse them. Again, in the original context this is motivated by reference to the parallel with God’s attitude, which is to love everyone, and to seek their salvation—God does not desire the destruction of the sinner and so forth. And as before, while as an individual one gives up one’s claim on the person persecuting one, the need for the latter to repent, and to be punished/ do penance, remains. And again this is all connected to the way in which Christ took on the burden of sin in dying on the cross. But whereas the point of forgiving the penitent—God forgiving us or us each other—is to restore the relationship, the point in forgiving the unrepentant is to seek his good, and not his (moral) destruction.

In one sense God has already forgiven all sins, because he has accepted Christ’s offering, which is sufficient in justice to make up for all sin. But in another sense God’s forgiveness awaits the sinner’s repentance, which involves the sinner’s pleading of Christ’s offering on his own behalf. What we imitate, here, is God going after the sinner—the lost sheep—and trying to win him over by doing good to him, and not merely abandon him to his just punishment. As with the other kind of forgiveness, without the theological background this is harder to understand, but I think that the supererogatory nature of wishing well to the persecutor, without denying the seriousness of his wrongdoing, is still intelligible.

The example of the adulterous husband illustrates some of these issues. In Catholic teaching adultery (and ‘unreasonable behaviour’, which would cover physical abuse) gives the injured party the right to separation (of ‘bed and table’). (The conditions for to annulment and remarriage are a separate matter.) If the injured party should forgive the adulterer/ abuser, this is the giving up of what is belongs to her by right. The good of the relationship would usually be a powerful reason to forgive, and thereby restore the relationship, but as you say there are limits, most obviously where physical abuse is concerned. In the scenario you describe, the beaten wife might give the husband the forgiveness of not seeking revenge, but not go back to him, even if he expressed repentance.

I hope this is helpful. In light of what I’ve said, one thing I would look out for in this debate is whether the different participants accept the possibility of supererogation. A lot of people don’t, and if you don’t, I think the paradoxes of forgiveness are insoluble.

Torture

Daniel Hill’s ‘Tortue and Self-Defense’: Comments

Joseph Shaw

I think the examples and discussion throw up some extremely important questions, and I will try out another response, below. There are a few relatively minor issues I disagree with you about, however, and I’d like to get them out of the way first.

First, while is relatively uncontroversial to say that killing is ok in war and self-defence, it is not uncontroversial to derive the right to kill in war from the right to kill in self-defence. This move is fashionable with certain kinds of political theorist, but Thomists disagree, and there are a lot of them about in the debate about intention. Aquinas is a lot more comfortable with the state’s right to kill than with the private citizen’s; so deriving the former from the latter would be retrograde.

Second, I don’t like the terminology of ‘intentionally causing harm’. Agent either acts with the intention to cause harm, or he doesn’t. If he doesn’t, he may still be acting intentionally, and if he is acting intentionally, what he is doing may be causing harm. In which case it is natural to say that he is intentionally causing harm—although (ex hypothesi) he is not acting with the intention of causing harm. People like Anscombe even say that an intentional action which knowingly causes harm is intentionally causing harm, and that this allows us to conclude that the harm is intended—which is hopeless. To avoid the muddles which arise from that scenario, I completely avoid using the adverb ‘intentionally’.

Third, I am surprised at what you say about innocent threats: the child playing with the hand-grenade and so on. It is well-established in the debate—obviously not infallibly so—that one can intend to harm innocent threats, and I should like to see a full-length argument against this view. (Innocent threats are distinguished in the Catholic tradition as ‘material aggressors’, as opposed to ‘formal aggressors’.) There is a very good reason for this: in the paradigm case of the just war, the subjective guilt of enemy combatants has got to be irrelevant to one’s right to kill them. One may even be quite sure that the enemy soldier is convinced, on the basis of the information available to him, of the justice of his cause. But the right to self-defence, public or private, is not removed by this. What it depends on is the objective rightness of the situation: if you know he’s wrong to be attacking you, you can resist. The same goes for the child and the grenade: he’s a material aggressor; the aggression is unjust; one may resist the aggression.

Fourth, I am extremely wary of distinctions between ‘positive’ and ‘negative’ actions and the like. Do you have a neat and tidy criterion for the distinction? You need to state what it is. Personally, I think that Jonathan Bennett has buried that whole approach in ‘The Act Itself’. But I’ve got a paper about it if you’re interested, which is also relevant to my solution below (‘A Use for the Act-Omission Distinction’).

On the major issue: now that you’ve convinced me that we have to talk about intending harms and pains in self-defence, it would seem that the right to self-defence comes down to the right to inflict harms and pains on people. So the problem is: why do our intuitions tell us it is ok to inflict pain on a paradigmatic aggressor, like the 11-yr-old, and on the terrorist reaching for the bomb switch, and not ok to torture a terrorist into telling us where the bomb is hidden, and things like that? Let alone the terrorist’s otherwise innocent wife, who knows the secret, or the retired bomb-disposal expert, who is reluctant to help. (Nice examples.)

A couple of possibilities come to mind. One is: are the people in the latter category aggressors, in the same sense as people in the former category? At first glance it would seem that the only way of distinguishing them from aggressors would be some positive/negative distinction which I am quite sure would collapse the moment it is articulated. But I’ll come back to this.

Another is that our intuitions tell us no such distinction. Of course it is morally ok to torture the terrorist for information which will reliably save lives, and the wife, and the retired bomb expert. All of them are in fact guilty of a very serious wrongdoing, of failing in a positive duty to aid others and undo a wrongdoing, when it is in their power to do so, and where the cost of doing so is small. (They are accessories to the bomb-planting, in fact, either formally or materially.) And anyway, if we define ‘material aggressor’ as ‘person who is a causal factor in an impending harm, and harming whom could avert the harm’, then they are material aggressors, and the question of guilt does not even arise.

A third possibility, which in a way incorporates both the above, is this: in drawing up rules of engagement for soldiers and police, especially in a situation where one hopes for reciprocity from the enemy (as in the Geneva Convention), it may makes sense to make some distinction here, for practical and pragmatic reasons. Because of the marked tendency to over-use torture, the high likelihood of persons being tortured who actually lack the information being sought, and the appalling nature of torture itself, it may seem sensible to agree that harms should not be inflicted when a person has surrendered. Physical surrender is without doubt the key to the rules of engagement: that is when harm must stop. As discussed, a person may continue to be an aggressor, material or formal, while in secure custody, by withholding information. Indeed enemy soldiers with knowledge of their army’s secrets will normally come into this category. But in the interests of placing a limit on the horrors of war, the convention that one may not harm such aggressors is agreed, and becomes morally binding.

So here is a type of active/passive distinction which will resist collapse: different norms apply before and after surrender; surrender being a conventional concept indicated by intentional use of conventional signs.

How about that?