I don’t think about issues in applied ethics as much as many
other people. But when I do, it sometimes turns out that I have a problem: I
often have definite intuitions about clearly imaginable but improbable cases
that don’t in any straightforward way support the position that I want to take
for political reasons.
One of these problems that I have concerns torture. I fervently support the absolute
prohibition on torture (at least when instigated by public officials) in
international law. I have been horrified by the kinds of torture that have been
carried out by US military personnel, with the clear authorization (as a
committee has recently confirmed) of the Bush White House. Yet I also have the
intuition that torture, in certain improbable but clearly imaginable cases, is permissible.
What is torture? This is controversial. But I sympathize
with the view that Frances Kamm voiced in her recent Uehiro Lectures in Oxford,
that we should avoid working with an artificially narrow conception of torture.
Not all torture is inflicted in order to extort information, or indeed to
extort anything, from the victims. It is possible to torture animals purely for
fun. It is possible to torture someone to death simply because one believes
that that is what his crime deserves. (Indeed, torturing people to death –
e.g. by crucifying them and the like – was a common form of execution in
ancient and medieval times.) On the other hand, not every case in which one
actively and knowingly inflicts severe pain on someone, even when one is acting
against that person’s express wishes, counts as torture: If you operate without
anaesthetic on a child because it is necessary to save the child’s life, this
is not torture.
I shall suppose that to torture someone, one must intend to inflict severe pain; inflicting pain is either an intended means to one’s end, or part of one’s end in acting as one does.
Now as Kamm argued, there are some possible cases where
torture in this sense seems permissible. Suppose that you know that A will immediately
murder a wholly innocent person B unless you subject A to an hour of agonizing
electric shocks. So you know that torturing A in this way is the only way to
save B from being murdered by A. In this case, torture seems permissible as a means
of defending oneself or other innocents. After all, it would be permissible to
kill A if that were the only way to save B from being murdered by A. And being killed is worse for A than
being tortured. So surely it is permissible to torture A in this case?
In effect, of course, this is one version of the “ticking
bomb case” that has been much discussed, especially by those (such as Alan
Dershowitz) who wish to relax the absolute prohibition on torture in
international law. My problem is that even though I agree with Kamm that
torture is permissible in “ticking bomb cases” of this sort, I am also strongly
inclined to think that, as a political and legal matter, torture (at least on
the part of public officials of any kind) should be absolutely prohibited in
Now, one simple solution to this puzzle would be to claim
that Kamm’s intuitions only apply in non-institutional contexts where there is
no law against torture. However, in at least some of the cases where a policeman (say) knows that torturing A
is the only available means to defend some innocent
citizens from being murdered by A, it could surely happen that the reasons in
favour of torturing A are so strong that they are not outweighed by any obligation
that the policeman has to obey the law. So, there can be cases where even in an
institutional context, it would be morally (if not legally) permissible for a policeman to
torture someone. Nonetheless, I am very strongly inclined to insist that even
in these cases, the policeman should be convicted of a criminal offence.
My problem is to see how this combination of views can
possibly make sense. Now a large part of the answer might just consist of those
obvious points (so beloved of consquentialists when they are confronted with counter-examples to their views …) about how no real-life instance of a “ticking bomb case” of this sort has ever been convincingly cited; about how allowing any legal loophole at all would just be too dangerous, and too likely to lead to serious abuses; about how the law sometimes needs to draw simple “bright lines”; and so on. But
actually I suspect that there is more to it than that…
I’ll try to make a more positive suggestion in a later post.
But for now, I just thought I’d see what other PEA-Soupers make of it.