Right About Wrongs? A Review of Fried & Fried's Because It Is Wrong and the Implications of Their Arguments on the Use of Capital Punishment

19 Pages Posted: 2 May 2012 Last revised: 24 Mar 2015

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: May 1, 2012

Abstract

In their recent book, Because It Is Wrong, former solicitor general and Harvard Law professor Charles Fried and his son, Suffolk University philosophy professor Gregory Fried, begin with the principle that morality is essential to the proper understanding of how to assess the exercise of power by the President of the United States. In particular, the Frieds are interested in the use of presidential power in an extralegal manner. Considering the actions of the administration of George W. Bush, they focus on two specific areas: the use of torture and the use of surveillance during the War on Terror.

Employing a philosophical approach, the Frieds make a compelling case that torture is “wrong” under all circumstances, but conclude that surveillance may be acceptable in certain exigent circumstances, even when the law prohibits such action. The Frieds draw this distinction, in part, on the concept that torture always infringes upon core conceptions of human dignity, while surveillance does not always infringe on human dignity in the same fundamental way. As a result, for the Frieds, one cannot weigh possible extrinsic benefits against the “wrong” of torture, while exigent circumstances may sometimes outweigh the “wrong” of privacy invasion.

This book review argues that, for the most part, Fried and Fried are “right” about “wrongs” — that is, their arguments concerning torture and surveillance generally are persuasive. Further, and perhaps more interestingly, this review explores the consequences of the Frieds’ conceptualization of torture on the use of capital punishment in the United States. Specifically, it argues that the moral underpinnings of torture as “wrong” in all circumstances, to the degree that one adopts their normative framework, offer a compelling basis for the abolition of the death penalty.

In Part II, the review evaluates Fried and Fried’s claim that torture is “wrong” under all circumstances. Part III considers the Frieds’ claim that surveillance is not always “wrong” — even when its practice is against the law. Finally, Part IV argues that if the Frieds are “right” about these “wrongs,” then their reasoning leads to the fundamental conclusion that the death penalty is its own “wrong.”

Keywords: war on terror, torture, death penalty, privacy, surveillance, Bush

Suggested Citation

Berry, William W., Right About Wrongs? A Review of Fried & Fried's Because It Is Wrong and the Implications of Their Arguments on the Use of Capital Punishment (May 1, 2012). Connecticut Law Review, Vol. 44, No. 5, July 2012, Available at SSRN: https://ssrn.com/abstract=2049527

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

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