Here is an inconsistent triad of propositions:
- There are certain pure “ticking bomb” cases (e.g. of the sort that I considered in my last post on this topic), in which torture (even on the part of a state official) is all-things-considered morally permissible.
- It is right for the law to impose an absolute prohibition
on torture (at least as practised by state officials) and to make all cases of torture liable to criminal punishment.
- It is not right for the law to make an act
liable to criminal punishment if that act is all-things-considered morally permissible.
If (like me) you find each of these three propositions prima facie plausible, how should you resolve this inconsistency?
As I said, each of these three propositions seems to me prima facie plausible. Still, I think that the one that we should amend is the third. (For a powerful defence of this third proposition, see Douglas Husak’s
recent article “The Cost to Criminal Theory of Supposing that Intentions are
Irrelevant to Permissibility”.)
So I suggest that we should replace the third proposition with
someone like the following:
3’. It is not right for the law to make an act
liable to criminal punishment unless the relevant agent had a moral obligation not to perform that act.
As I understand the notion of an “obligation”, moral obligations
can conflict. (E.g. suppose that you
have made two important promises, and it becomes impossible for you to keep
both. Then I would say that you have two conflicting obligations.) Very
roughly, a moral obligation is a strong
moral reason, of the sort that at the very least makes it appropriate for other
people to demand an explanation of an
agent who fails to comply with this reason.
Now, in these cases where obligations conflict, one
obligation may be overridden by
another. In such a case, violating the overridden obligation will be
all-things-considered morally permissible.
Even if there are cases in which torture is all-things-considered
permissible, I would still say that you always have an obligation not to torture anyone. If I’m right, then (1), (2), and (3’) can all be true.
Why should it be that (3) is false but (3’) is true? Let me
leave that question for another occasion…