A Knife that Cuts Both Ways

Alan Dershowitz, 2007

Suggested alternative subtitle: Preemption: Why Israel Should be Allowed to Bomb Anyone it Wants

This is a resoundingly alright book. Which is a real shame, because the book that was described in the introduction would have been bloody brilliant. Dershowitz’s mission statement at the outset is to start the conversation leading to a consistent and cogent jurisprudence for preemptive police and military action, and he makes quite a compelling case for the importance of the issue. Unfortunately, the book quickly finds itself stuck in the mud, bogged down in the details of various case studies which don’t actually elucidate the central idea.

Despite this floundering, the strength of opening and closing chapters is enough to save Dershowitz's project, and I'd recommend borrowing a copy or dropping a few dollars on the eBook in order to read those alone. It's hard not to be persuaded that we're entering a world where the orthodox logic of ex post facto punishment is no longer adequate for the threats we face. In the simplest recognisable form of the argument, the status quo of retroactive deterrence rests on two shaky pillars:

  1. The offender must exist after the crime in order to be subject to punishment
  2. The society must be able and willing to sustain the impact of the crime

"We love death. The U.S. loves life. That is the big difference between us."

  • Osama bin Laden

"If we wait for threats to fully materialize, we will have waited too long."

  • George W. Bush

The immediate implications of suicide terrorism and weapons of mass destruction should hopefully be clear, even if I hadn't thrown those decidedly unsubtle quotes up there. However, with credit to his understanding of the situation, Dershowitz's concerns range far and wide, with discussions of the preemptive law implications of hate speech, mandatory quarantine, vaccinations, workplace safety laws, and perhaps most interestingly, climate regulations. Through a very brief history of Western jurisprudential ontology reaching back to the simple principle of 'no harm, no foul', Dershowitz makes the point that uncontroversial crimes such as speeding, drunk driving, and even attempted murder are, at their core, preemptive justice.

Of course, it's a bit much to swallow the claim that there was a time when people legitimately didn't care if someone tried to shoot them, even though they had no legal claim if the arrow missed. Here, in the parallel history of extrajudicial systems of preemptive action, is where the book really breaks new ground. More than isolated acts of crime and terrorism, Dershowitz’s main fear is the systematic injustice that arises when we are forced to rely on ad hoc modes of preemptive action, handed down unilaterally and inconsistently by lower court judges and mid-ranking police officers.

This is really the core case of the book. Despite what we might like to think, preemptive action is here to stay and, digressive though they are, Dershowitz's laundry list of historical case studies provides more than enough evidence. The choice is no longer between preemptive and retroactive justice, the choice is whether we can commit to the project of defining a robust preemptive jurisprudence, or if we will stay stuck a system that falters from one crisis to the next, staggering under the weight of its own expedient contradictions.

Ideas for the future

One thing that was noticeably lacking from the book was some cross-disciplinary insight, especially regarding the cognitive biases and statistical fallacies that come bundled with any attempt to predict the future. At the end of the day, any proposed preemptive justice will need to defend itself by appealing to alternative outcomes that have been precluded by the action of that justice. As Dershowitz points out, a less acquiescing Neville Chamberlain would likely do down in history as the callous aggressor who bombed an already weak Germany, rather than a hero who averted the greatest loss of life in human history.

As a few quick ideas, Kahneman and Tversky started an enormously fruitful steam of psychology around the different emotional reactions when outcomes are perceived as stemming either from action or inaction in The Psychology of Prefences (see also Kahneman's Thinking Fast and Slow, review forthcoming). On the statistics side, I think that Judea Pearl's work on structure-based counterfactuals is probably the best framework for evaluating preemptive justice (Causality: Models, Reasoning, and Inference, review forthcoming).

The cover image is a photograph taken from a Japanese plane during the preemptive attack on Naval Station Pearl Harbour, 7 December 1941. Courtesy of the U.S. Naval History and Heritage Command.