It would be impossible to evacuate the city in time but possible to disarm the bombs if they could be found. A suspect, who knows the location of the bombs, is arrested by the police but refuses to divulge the information during interrogation.
Can the suspect be tortured to extract the information? The scenario forces us to make a choice between two evils; we can choose to do no harm ourselves, but our passivity will have terrible consequences, or we can do something morally repulsive, and torture a suspect to save the lives of others. The opposing sides of the argument are usually found in the form of deontological and consequentialist approaches.
Deontologism is an approach which seeks to create universal rules for the morality of human action; its ideas of common humanity and fundamental human rights were very influential in the banning of torture.
Under the second, torture is wrong because torturing a person for information is to use them as a means only. The individual who chooses not to torture makes the correct moral decision regarding their actions despite the terrible consequences that might result.
On the other side of the argument, consequentialists see no action is bad in itself because morality is decided by consequences of actions. Is it morally right to torture ninety-nine people in an attempt to save one-hundred others? In theory this type of thinking can justify extreme inhumanity as long as it is calculated as the lesser evil.
Dershowitz, The deontologist-consequentialist debate over torture provides a useful background and reflects common reasoning when faced with this dilemma. Our immediate focus is on the inhumanity of torture emphasised by deontologists and the numerically greater threat to innocent people emphasised by consequentialists.
However, the situation is presented deceptively simply; the next section will examine its flaws. Hypothetical Situation or Real-Life Dilemma? The ticking bomb scenario is a carefully constructed puzzle. Pfiffner, 21 What if the suspect admitted their guilt but refused to give the necessary information? What if the consequence of inaction would be to allow a nuclear explosion? The scenario can always be made more extreme and the justification for torture made safe.
Shue, As a result, few thinkers challenge the justifications provided in these extreme situations and, instead, prefer to take on the situation itself. Pfiffner, 7 I will take each assumption in turn to demonstrate the inherent problems in the scenario. However, in reality there is little certain intelligence; would torture still be justified if there was only some, weak evidence?
The justification for torture where we are uncertain about the existence of the bomb is weakened as its necessity is much harder to demonstrate. Secondly, we must have reasonable grounds to believe that the suspect holds the information that we need. The argument for torture is severely weakened if it is likely that the suspect is innocent and unable to help our enquiries. In terms of efficiency, torturing the wrong person is a waste of time and, on a more human level, we must decide on the value of protecting the innocent from pain.
The less certain we are that the suspect holds the information we need, the less we can justify ill-treatment of that person. Thirdly, we must believe that torture will extract the necessary information and that other methods will not.
If there is another way to induce the subject to talk our humanity must rule out any justification for torture; it can only be justifiable as a last resort. There are many other methods of interrogation that must have been tried and failed — developing rapport, plea bargaining, trickery, positive and negative psychological techniques, surveillance, disorientation and other non-damaging psychological methods.
Pfiffner, 15; Meyer, ; Saul, ; Bowden, The argument may still be made that the price of failure to find the information makes an early recourse to torture worthwhile but the moral case is severely weakened as a result. In addition to the above concerns about the usefulness of torture, the fourth assumption requires that torture will cause the subject to divulge accurate information.
This is highly questionable as torture may force answers but there is no guarantee that they will be truthful Rodley, 8 Under torture, a knowledgeable suspect may not tell the truth and an innocent suspect cannot; there can be no method of distinguishing between the two. You become like an animal. Finally, the scenario rests upon the presumption that it will be possible to save lives if the information is obtained. This is an important consideration as without it the torture is no longer necessary.
If torture is carried out when the information cannot be of any use in saving lives e. Once uncertainty is added into the equation, the moral strength of the decision to torture is removed. The scenario of the ticking bomb is misleading for another reason.
This Aristotelian philosophy claims that justice gives people what they deserve. After all, the given utilitarian scenario completely overlooks the possibility that saving thousands of lives could also justify torturing an innocent person. Despite an international ban, torture is common practice and easily vindicated worldwide, within both democratic and non-democratic societies.
Perhaps we need to take a closer look at Kant's emphasis on human dignity and consider Kantian norms as guidance to stop people from thinking they can use other people as a means. In the second part of this essay, I will demonstrate that the consequentialist justification of torture is based on the false assumption that torture is an effective method to gather information.
Twinning and P. Single pieces. All Podcasts. Conversing Crime. Foreign Policy. National Security. Political Affairs. Arms and Disarmament. Organised Crime. Human Security. Environmental and Energy Security. Public health.
But see Arrigo However, their moral absolutism is not without its own problems: specifically, in relation to torturing the guilty few for the purpose of saving the innocent many. See Walzer , Miller ; Kershnar and Steinhoff Before turning in detail to the arguments on this issue, let us consider some putative examples of the justified use of torture.
The first is a policing example, the second a terrorist example. Arguably, both examples are realistic, albeit the terrorist ticking bomb scenario is often claimed by moral absolutists to be utterly fanciful. Certainly, the policing example is realistic; indeed, it was provided by a former police officer from his own experience. So is it entirely fanciful that there could be such an attack and that an Al Qaeda operative known on the basis of intercepted communications to be a member of the cell involved in the planned attack might not be arrested, interrogated and tortured?
At any rate, these are the two most popular kinds of example discussed in the literature. These cases include the real-life Daschner case involving the threat to torture a kidnapper by German police in which resulted in the kidnapper disclosing the location of a kidnapped child Miller Consider the following case study: Height of the antipodean summer, Mercury at the century-mark; the noonday sun softened the bitumen beneath the tyres of her little Hyundai sedan to the consistency of putty.
Her three year old son, quiet at last, snuffled in his sleep on the back seat. He had a summer cold and wailed like a banshee in the supermarket, forcing her to cut short her shopping. Her car needed petrol. Her tot was asleep on the back seat. She poured twenty litres into the tank; thumbing notes from her purse, harried and distracted, her keys dangled from the ignition. Whilst she was in the service station a man drove off in her car. Where did you dump the car? He quite enjoyed handing out a bit of biffo, but now, kneeling on hands and knees in his own urine, in pain he had never known, he finally realised the beating would go on until he told the police where he had abandoned the child and the car.
When found, the stolen child was dehydrated, too weak to cry; there were ice packs and dehydration in the casualty ward but no long-time prognosis on brain damage. In this case study torture of the car thief can be provided with a substantial moral justification, even if it does not convince everyone. Consider the following case. A terrorist group has planted a small nuclear device with a timing mechanism in London and it is about to go off.
If it does it will kill thousands and make a large part of the city uninhabitable for decades. One of the terrorists has been captured by the police, and if he can be made to disclose the location of the device then the police can probably disarm it and thereby save the lives of thousands.
The police know the terrorist in question. They know he has orchestrated terrorist attacks, albeit non-nuclear ones, in the past. Moreover, on the basis of intercepted mobile phone calls and e-mails the police know that this attack is under way in some location in London and that he is the leader of the group.
Unfortunately, the terrorist is refusing to talk and time is slipping away. However, the police know that there is a reasonable chance that he will talk, if tortured. Moreover, all their other sources of information have dried up. Furthermore, there is no other way to avoid catastrophe; evacuation of the city, for example, cannot be undertaken in the limited time available. Torture is not normally used by the police, and indeed it is unlawful to use it.
In this case study there is also a substantial moral justification for torture, albeit one that many moral absolutists do not find compelling. Consider the following points: 1 The police reasonably believe that torturing the terrorist will probably save thousands of innocent lives; 2 the police know that there is no other way to save those lives; 3 the threat to life is more or less imminent; 4 the thousands about to be murdered are innocent — the terrorist has no good, let alone decisive, justificatory moral reason for murdering them; 5 the terrorist is known to be jointly with the other terrorists morally responsible for planning, transporting, and arming the nuclear device and, if it explodes, he will be jointly with the other terrorists morally responsible for the murder of thousands.
In addition to the above set of moral considerations, consider the following points. The terrorist is culpable on two counts. Firstly, the terrorist is forcing the police to choose between two evils, namely, torturing the terrorist or allowing thousands of lives to be lost. Were the terrorist to do what he ought to do, namely, disclose the location of the ticking bomb, the police could refrain from torturing him.
This would be true of the terrorist, even if he were not actively participating in the bombing project. Secondly, the terrorist is in the process of completing his jointly undertaken action of murdering thousands of innocent people. He has already undertaken his individual actions of, say, transporting and arming the nuclear device; he has performed these individual actions in the context of other individual actions performed by the other members of the terrorist cell in order to realise the end shared by the other members of the cell of murdering thousands of Londoners.
In refusing to disclose the location of the device the terrorist is preventing the police from preventing him from completing his joint action of murdering thousands of innocent people. In the institutional environment described, torture is both unlawful and highly unusual.
Accordingly the police, if it is discovered that they have tortured the terrorist, would be tried for a serious crime and, if found guilty, sentenced. We will return to this issue in the following section. Here simply note that the bare illegality of their act of torture does not render it morally impermissible, given it was otherwise morally permissible.
Here it is the bare fact that it is illegal that is in question. So the relevant moral considerations comprise whatever moral weight attaches to compliance with the law just for the sake of compliance with the law, as distinct from compliance for the sake of the public benefits the law brings or compliance because of the moral weight that attaches to the moral principle that a particular law might embody.
But even if it is held that compliance with the law for its own sake has some moral weight — and arguably it has none — it does not have sufficient moral weight to make a decisive difference in this kind of scenario.
In short, if torturing the terrorist is morally permissible absent questions of legality, the bare fact of torture being illegal does not render it morally impermissible. Note also that since the terrorist is, when being tortured, still in the process of attempting to complete his joint action of murdering thousands of Londoners, and murdering also the police about to torture him, the post factum legal defence of necessity may well be available to the police should they subsequently be tried for torture.
Some commentators on scenarios of this kind are reluctant to concede that the police are morally entitled — let alone morally obliged — to torture the offender. How do these commentators justify their position?
Someone might claim that torture is an absolute moral wrong Matthews ; Brecher For criticisms of these authors see especially Steinhoff and Allhoff On this view there simply are no real or imaginable circumstances in which torture could be morally justified.
This is a hard view to sustain, not least because we have already seen that being tortured is not necessarily worse than being killed, and torturing someone not necessarily morally worse than killing him. Naturally, someone might hold that killing is an absolute moral wrong, i. This view is consistent with holding that torture is an absolute moral wrong, i. However, the price of consistency is very high.
The view that killing is an absolute moral wrong is a very implausible one. It would rule out, for example, killing in self-defence. Let us, therefore, set it aside and continue with the view that torture, but not killing, is an absolute moral wrong. For those who hold that killing is not an absolute moral wrong, it is very difficult to see how torture could be an absolute moral wrong, given that killing is sometimes morally worse than torture.
In particular, it is difficult to see how torturing but not killing the guilty terrorist and saving the lives of thousands could be morally worse than refraining from torturing him and allowing him to murder thousands — torturing the terrorist is a temporary infringement of his autonomy, whereas his detonating of the nuclear device is a permanent violation of the autonomy of thousands.
In conclusion, the view that it is, all things considered, morally wrong to torture the terrorist in the scenario outlined faces very serious objections; and it is difficult to see how these objections can be met. It is plausible, therefore, that there are some imaginable circumstances in which it is morally permissible to torture someone.
Let us now turn to the other argument of those opposing the moral permissibility of torture mentioned above. The basic idea is that while torture is not an absolute moral wrong in the sense that the evil involved in performing any act of torture is so great as to override any other conceivable set of moral considerations, nevertheless, there are no moral considerations that in the real world have overridden, or ever will override, the moral injunction against torture; the principle of refraining from torture has always trumped, and will always trump, other moral imperatives.
Proponents of this view can happily accept that the offenders in putative examples should be tortured, while simultaneously claiming that the scenarios in these examples are entirely fanciful ones that have never been, and will never be, realised in the real world. It is important to stress here that the kind of scenario under discussion remains that of the one-off case of torture in an emergency situation; what is not under consideration in this section is legalised, or otherwise institutionalised, torture.
The first point to be made is simply to reiterate that some of these scenarios — such as police officers beating up kidnappers and other offenders to rescue children — are not only realistic, they are real; they have actually happened. What of the ticking bomb scenario in particular? As stated above, it is by no means self-evident that this kind of scenario is entirely fanciful.
Here it can be conceded that there is no guarantee that torture would succeed in saving the lives of to revert to our specific ticking bomb scenario thousands of Londoners. This is because the person tortured might not talk or he might talk too late or he might provide false or misleading information.
However, it should be noted that the police know that the offender has committed the offence and is in a position to provide the needed information, i. Moreover, the information being sought is checkable; if the terrorist gives the correct location of the bomb then the police will find it — if he does not, then they will not find it. Further, the police have no alternative methods by which to avoid the death of the innocent.
Given what is at stake and given the fact that the police know the offenders are guilty, the police are, it seems, justified in the use of torture, notwithstanding a degree of uncertainty in relation to the likelihood of success.
See Thiessen for arguments that so-called enhanced interrogation techniques do in fact work. And these accounts could differ from one advocate of practical moral absolutes to another. For example, one advocate might accept that it would be morally permissible to torture the terrorist to save the lives of ten innocent people threatened by a non-nuclear explosive device, whereas another advocate might reject this on the grounds that ten lives are too few.
What the two advocates would have in common is the belief that even the revised ticking-bomb scenario involving only the death of ten innocent people is, nevertheless, a fanciful scenario that has not occurred, and will not ever occur. In short, different advocates of practical absolutism can ascribe different moral weight to different moral considerations, and we need to know what these weightings are for any given advocate.
For otherwise it is extremely difficult to assess the validity or plausibility of the associated general empirical claim that in practice no act of torture has ever been, nor ever will be, morally justified. Roughly speaking, the greater the moral weight that is given by the practical moral absolutist to refraining from torture — this moral weight considered both in itself and relative to other moral considerations — the more plausible the associated general empirical claim becomes.
On the other hand, the greater the moral weight that is given to the principle of refraining from torture, the less plausible the narrowly moral claims of the practical absolutist become — indeed, at the limit the practical absolutist becomes a moral absolutist tout court. At any rate, the general point to be made here is that the practical moral absolutist owes us a principled account of the moral weight to be attached to refraining from torture relative to other moral considerations.
For without it we are unable to adequately assess whether or not putative counter-examples to this position are really counter-examples or not. It is not good enough for the practical moral absolutist just to give the thumbs down to any putative counter-example that is offered. The third general point against the practical moral absolutist is to reiterate that it has already been argued that torture is not the morally worst act that anyone could, or indeed has or will, perform.
If this is correct, then it is plausible that there will be at least some scenarios in which one will be forced to choose between two evils, the lesser one of which is torture.
Indeed, the above-described police beating scenario certainly and the ticking bomb scenario possibly are cases in point. We have seen that there are likely to exist, in the real world, one-off emergency situations in which arguably torture is, all things considered, the morally best action to perform.
It may seem to follow that institutional arrangements should be in place to facilitate torture in such situations.
However, it is perfectly consistent to concede that torture might be morally justifiable in certain one-off emergency situations and yet oppose any legalization or institutionalization of torture. Luban and , and Waldron , in particular, have drawn attention to the moral inconsistency and inherent danger in liberal democratic states legalising and institutionalising torture, a practice that strikes at the very heart of the fundamental liberal value of individual autonomy.
They have also detailed the tendency for a torture culture to develop in organisations in which torture is legalised or tolerated, a culture in which the excesses of torturing the innocent and the like take place, as in the US army detention centres in Abu Ghraib in Iraq and Guantanamo Bay in Cuba, and in the Israeli secret service General Security Service.
Nevertheless, it is useful to sketch a general argument against the legalisation and institutionalisation of torture. The argument is consistent with, indeed at some points it is more or less the same as, the arguments of Luban and Waldron.
However, the argument has some novel elements, not the least of which is the claim that the view that torture is morally justified in some extreme emergencies is compatible with the view that torture ought not to be legalised and institutionalised.
Most of the theorists who oppose the legalisation and institutionalisation of torture also at least implicitly reject the possibility, let alone actuality, of one-off emergencies in which torture is morally justified. The argument has been put that there are, or could well be, such one-off extreme emergencies in which torture is morally justified. So the first task here is to demonstrate that these two claims are not inconsistent.
Specifically, it needs to be shown that it does not follow from the fact that torture is in some extreme emergencies morally justified, that torture ought to be legalised, or otherwise institutionalised. So the claim is that it is just a mistake to assume that what morality requires or permits in a given situation must be identical with what the law requires or permits in that situation.
This calls for some explanation. The law in particular, and social institutions more generally, are blunt instruments. They are designed to deal with recurring situations confronted by numerous institutional actors over relatively long periods of time. Laws abstract away from differences between situations across space and time, and differences between institutional actors across space and time.
The law, therefore, consists of a set of generalisations to which the particular situation must be made to fit. Hence, if you exceed the speed limit you are liable for a fine, even though you were only 10 kph above the speed limit, you have a superior car, you are a superior driver, there was no other traffic on the road, the road conditions were perfect, and therefore the chances of you having an accident were actually less than would be the case for most other people most of the time driving at or under the speed limit.
By contrast with the law, morality is a sharp instrument. Morality can be, and typically ought to be, made to apply to a given situation in all its particularity. This is, of course, not to say that there are not recurring moral situations in respect of which the same moral judgment should be made, nor is it to say that morality does not need to help itself to generalisations.
Accordingly, what might be, all things considered, the morally best action for an agent to perform in some one-off, i. Consider the real-life example of the five sailors on a raft in the middle of the ocean and without food.
Four of them decide to eat the fifth — the cabin boy — in order to survive. Was it morally permissible to kill and eat the boy, given the alternative was the death of all five sailors? Clearly it was not pro tanto morally permissible, especially given the cabin boy was entirely innocent; but perhaps it was morally permissible all things considered.
And even if it was not morally permissible all things considered, nevertheless, arguably it was morally excusable, and indeed the sailors, although convicted of murder and cannibalism, had their sentence commuted in recognition of this. But there was no suggestion that the laws against murder and cannibalism admit of an exception in such an extreme case; the sailors were convicted and sentenced for murder and cannibalism. Again, consider an exceptionless law against desertion from the battlefield in time of war.
Perhaps a soldier is morally justified in deserting his fellow soldiers, given that he learns of the more morally pressing need for him to care for his wife who has contracted some life-threatening disease back home.
However, the law against desertion will not, and should not, be changed to allow desertion in such cases. Some theorists Allhoff have invoked the legal principle of necessity in order to establish that torture in some extreme circumstances is or should be legally permissible Gaeta ; Hunsinger However, the legal principle of necessity is inherently and intentionally vague.
It typically applies to situations in which someone has infringed a law, but done so to avert a greater evil which is otherwise unavoidable. Here the notion of greater evil is radically underspecified and, therefore, in need of interpretation by the courts in any given case. Moreover, the application of the principle of legal necessity in cases in which it is state operatives who invoke it, such as in cases of torture by the members of security agencies, is fraught with danger.
For the protection of the rights of citizens not to be tortured is likely to be significantly reduced if there is a legal justification for torture available to members of security agencies.
Given the inherent vagueness of the notion of lesser evil, there is the potential in their adjudications for judges to favour the members of security agencies at the expense of ordinary citizens. We will shortly turn to arguments to the effect that while there may well be morally justifiable one-off cases of torturing the guilty, it does not follow that torture should ever be legalised, even in such cases. However, it has been suggested by Steinhoff and that torturing the guilty can in many cases be understood as torturing the guilty in self-defence.
If so, presumably torturing the guilty could reasonably be legalised on the grounds that torturing in self-defence is analogous to killing in self-defence, and self-defence is an explicit legal justification for killing in most jurisdictions.
Steinhoff has also suggested , that legalisation would not necessarily lead to institutionalisation in the sense of the creation of the institutional role of a torturer, the routinisation and bureaucratisation of the process of torture, and so on.
Torturing the guilty in self-defence is arguably something of a misnomer. Firstly, it is not really self defence per se, but rather the saving of the lives of others. Secondly, torturing in order to save life is inherently unreliable by comparison with killing in self-defence.
This is because killing an attacker is directly connected to the desired outcome of removing the threat; indeed, to kill the attacker is to remove the threat.
This is not so with torture. Rather torturing is one action and removing the threat e. Moreover, the putative necessarily indirect causal connections between the two actions may well not obtain. Thirdly, torturing the guilty to save innocent lives does not typically involve an imminent threat, as typically must be the case in instances of lawful self-defence in well-ordered jurisdictions.
For the threat posed by say a terrorist-bomber is either imminent, as in the case of a suicide-bomber, in which case there is no time to torture anyone; or the threat is not imminent in which case there is time to pursue other options, such as intercepting the communications of other members of the terrorist cell and, thereby, locating the bomb.
Again, consider typical kidnapping cases. Either the kidnapper is not in custody in which case he or she cannot be tortured; or the kidnapper is in custody in which case the threat to the kidnapped child from the kidnapper in custody is not imminent the child is either dead or is alive and no longer under threat from the kidnapper in custody.
Naturally, as we saw in the last section, there may well be a very small number of exceptional cases in which the threat is more or less imminent and torture is, nevertheless, a realistic option for removing the threat and, indeed, the only option. Accordingly, this small number of exceptional cases might be analogous to killing in self-defence. Moreover, in some torturing the guilty scenarios the all things considered morally best option might be to torture the guilty party; indeed the general argument for the latter proposition was outlined in the last section.
However, this does not demonstrate that justified torturing of the guilty to save the innocent they threaten is essentially a species of justified self-defence and that, therefore, it ought to be legalised. It is consistent with the rejection of explicit legalisation of the torturing of the guilty that, as noted above, there be some form of legal redress in the very small number of exceptional cases of torturing the guilty in which the threat to the innocent is imminent and torture is morally justifiable all things considered.
These forms of legal redress for the torturer might include the existence of mitigating circumstances or the application of the legal principle of necessity — since the cases in question involve a genuinely dilemmatic situation in which the least harmful of the available options was chosen and chosen to the advantage of the innocent rather than the guilty. The upshot of this discussion is that torturing the guilty to save the lives of the innocent is not analogous to killing in self-defence.
0コメント