The principle of torture has been brought back into the forefront of philosophical debate following the September 11th 2001 terrorist attacks in New York bringing about the ‘War on Terror.’ So much so, that torture has been considered as a way of combating problems with suspected criminals and terrorists. The matter of torture has been the centre of legal discussion, often being juxtaposed against the human rights issue. Cases such as Abu Ghraib, the prison in Iraq and the detainees held at Guantánamo Bay, have increased the public’s awareness of issues surrounding torture, and have fuelled debates concerning the true liberalness of democratic countries; which countries like the US are supposed to encapsulate. What is more, should these democracies be condemning morally wrong topics like torture, or should their prime concern be the safety and security of its citizens? Furthermore, how can these two ideas be reconciled, and what implications will this have for the law?
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Why Is Torture Morally Wrong?
It is fundamental to the understanding of this debate to recognise why torture is seen as inherently wrong with strong moral objections, and why it is regarded as a violation of rights. Only then, can we unravel its significance when posed with questions of terrorist threats and its repercussions on the legal system. If we are unable to dispel what it is about torture that we find morally inconceivable then it is hard to assess under what circumstances it can be practiced or even legitimised.
Cesare Beccaria, wrote in his paper, ‘Moral Protest’, ‘the impression made by pain may grow to such an extent that having filled the whole of the sensory field, it leaves the torture victim no freedom to do anything but choose the quickest route to relieving himself of the immediate pain.’ Thus, torture can be seen as posing two areas of concern, not only does it involve the application of extreme amounts of pain and suffering; it also infringes on a person’s right to a fair trial. These both amount to why torture is morally wrong in its means of interrogating suspects. Within Western democracies, a key concept is the principle of human autonomy. Therefore, torture aims to completely disregard one of the essential foundations upon which democracy was built. It reduces a human to such a degree that they destroy all traces of individuality so that they are unable to make decisions. A tortured being is only capable of comprehending one thing; that being the urgency to be released from pain. It is this power that allows the torturer to gain the information or confession he wishes. In ‘The moral wrongness of torture’, Fatima Kola describes this state as an ‘attempt to annihilate agency.’ Torture can annihilate agency because it seeks to lower the person to a standard in which they cannot make rational choices, being subject to physical or psychological torment. Hence, it is understandable why torture is considered morally wrong, and how anyone who accepts this as a means of interrogation must be able to justify the degradation of personal autonomy and human rights.
We must also consider why it would be so morally repulsive to be tortured. Henry Shue believes that one of the main reasons for this is that it constitutes as an attack on the defenceless. This idea is furthered by Sussman who has a unique argument as to why torture is so repugnant. He states in, ‘Whats Wrong with Torture?’ ‘So construed, torture turns out to be not just an extreme form of cruelty, but the pre-eminent just an extreme form of cruelty, but the pre-eminent instance of a kind of forced self-betrayal.’ Thus torture is a distinctive kind of wrongness not often found in other acts. As what is embedded in the core of torture is the form of self-betrayal that it harbours. The victim if forced into a state of defencelessness and powerlessness. They are broken down until they lack all personal autonomy and rationality. What’s more, Sussmen believes that the victim is lowered to such a degree that their own body becomes their main attacker, leaving them to feel debased. Such a view then naturally finds the physical and emotional strains of torture as abhorrent, rendering it morally wrong in all circumstances.
Alternative Arguments That Justify Torture
Perhaps it is because society is no longer as shocked at images of torture that is has become more accepted within legal discussions. Exposure to scenes of pain and brutality in culture has allowed for people to be more open minded about the debate of torture. Yet, amongst this, two distinct arguments exist. There are those that believe torture can be morally justified where it prevents a greater devastation from occurring, that it is ‘the lesser of two evils.’ Arguments from this standpoint are utilitarian, which allow the torturing of one life to save many innocent lives. The main focus for utilitarians is the end goal and the idea that torture can be justified according to the circumstances at the time. This is particularly important in terrorist cases, where utilitarians argue that a terrorist has lost his claim to a normal standard of human rights by endangering the lives of innocents, and therefore cannot expect to have the same amount of protection as an ordinary citizen.
Henry Shue, gives a further explanation to justify acts of torture in that, ‘since killing is worse than torture, killing is sometimes permitted, especially in war, we ought sometimes to permit torture.’ However this argument is flawed as there are other more important factors that need to be considered rather than just the degree of harm done. If we are to compare the acts of killing that take place in war to the torture of a suspected terrorist, then the most obvious difference is that in warfare, both parties have equal opportunities to kill or be killed. Whereas a terrorist or criminal who is being tortured is subject to the whim of the torturer. Thus, I do not believe this creates a valid argument to justify torture.
On the other hand, there are those who believe torture should be absolutely prohibited, and that under no circumstance can it be morally justified. These arguments are based on a deontological view. Utilitarian’s claim this view is ‘morally self-indulgent’ and sometimes it is acceptable to sacrifice your morality for the greater good. However, deontologists are criticised for their lack to reconcile with what is known as the ‘ticking bomb’ scenario. One should consider the hypothetical example of where a man is aware of the location of a bomb that has been planted in a large shopping centre. He knows it will be detonated within the next few hours and the police have him detained. In this situation is it morally wrong to torture one person to find out the location of the bomb, in order to save the lives of many? In this most extreme situation, even the strictest deontologists cannot deny that torture may be justifiable to such a threat, despite it been inherently wrong. In this context there are two conflicts at play. There is the moral consequence that exists in torturing someone; however this has to be balanced against the moral consequence of the death of many people, (it seems to be a simple matter of numbers.) Thus it is vital to consider this moral dilemma as a whole and as not individual parts. In this way, deontological morality is not completely lost by rendering utilitarian views as applicable.
Moral deliberation can thus be settled by balancing the deontological objections of torture with the justification given by utilitarians, as Sussman argues, ‘torture constitutes a moral wrong that requires more justification than killing.’
Thus, by focussing on the morality of the act, we are allowed to mediate between absolute prohibition and utilitarian ideas. However each circumstance gives rise to different issues on morality and torture, as not all situations will follow the ticking bomb scenario. At which point can you draw the line between appreciating the opposing demands and upholding moral integrity? As stated earlier, it is vital to look at the situation as a whole, made up of constituents, in order to weigh up where the morality lies. Only then is it possible to make credible conclusions and allow us to make a morally right decision.
Implications For The Law
For the law to include a provision for torture would be very brave, and require an act of moral courage. In ‘Torture and Positive Law: Jurisprudence for The White House,’ Waldron argues that legalising torture will have negative ramifications on our legal system, leading to ‘eventual malfunction.’ The basis of negating torture into law finds it origins in morality. The morally wrong nature of torture is reflected and reinforced by the law. The laws represent its regard for the superiority of human rights and its belief in personal autonomy. It embodies the concept that human life is sacred and must be shown respect. Therefore by including torture within the law it gives the impression that it is not disapproved in the same way and the moral integrity of the legal system becomes undermined. Promoting respect amongst your fellow citizens becomes a hypocritical concept, as torture is one of the worst offences against a person. This gives a tainted message to society as the law no longer prohibits torture as a method of interrogation.
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Legalising torture will also have further international repercussions, especially for countries like the US and UK. These countries have a firm approach in not tolerating torture in other countries that do not give enough weight on the importance of human rights. By legitimising torture, these countries will be sending the wrong message to the rest of the world, implying that they encourage the State to use torture as a means to a way.
R. Dworkin, in ‘Law’s Empire,’ believes that legalising torture could affect ‘public morality.’ The law is a mechanism which guides citizens through their everyday lives, telling them the correct way to behave and what is acceptable conduct in society. In this way, prohibiting torture from the law mirrors the message of mutual respect and harmony that we wish to permeate through society. This could be compromised with the inclusion of torture within the legal system, lowering people’s standards of morality. The recognition of torture could have further affects on society through its interpretation; that people may find it suitable to be violent to those who they feel ‘deserve it,’ thus generally increasing levels of crime. There is a risk that torture may not encompass a sense of inherent wrongness and taboo as it does now. As people become more open to its implications and practice, being confronted by its affects on a daily basis, so torture will become part of what is accepted.
Therefore, the strength of the law will be severely undermined with the prohibition of torture no longer upheld to symbolise actions that can be regarded as morally wrong. As torture is claimed to be one of the most appalling acts that can be committed, its justification will lead to questions such as why other wrongs, which are considered as a lesser wrong than torture are not also legalised. Waldron concisely summarises this concept as the ‘unravelling of the surrounding law.’ Sangeeta Mandhir, in ‘Basing arguments for legalising torture on moral justifications,’ describes this as having a ‘domino-type effect.’ In that once the prohibition of torture is challenged, it will be harder to justify why other acts such as battery, which is considered less offensive than torture, is not also made legal by law.
Furthermore, if torture becomes legitimised, than the supposed guilt felt by the torturer is weakened. Since the act is no longer illegal it will justify his actions and so reduces the level of guilt, and in turn this is converse affects for what is seen as moral. If no guilt is felt then one cannot feel he has committed an immoral act.
Indeed what makes torture worse for society is the justification in that it serves to benefit the community. This implies that society gives torture a mandate in which it can be implemented by allowing it into the legal system. As the torture is being carried out in the name of society’s security and safety, citizens can be said to hold a shared responsibility for the shocking acts performed upon the victims of torture. Therefore, the State has multiple factors that are intrinsic when considering the legalising of torture. Consisting of not only of the end result, that being security for the nation; but also the upholding of liberal democratic values upon which society is based, so not to compromise principles such as liberty, integrity and human rights.
It is clear that for a debate on torture it is impossible not to consider morality, as the two concepts are inextricably linked. Torture, by definition in this essay is regarded as morally wrong and inherently abhorrent. Yet there seems to be circumstances for which people believe it could be the only course of action. Thus, if there are situations in which torture can be justified, should the State consider reversing the absolutist prohibition stance on torture within the legal system that exists today? In my opinion, the answer is no. Torture is fundamentally abusive to our morals and ethics. Its existence in society risks undermining the humanitarian principles that also exist. Despite the utilitarian views concerning the welfare of the greater good, what needs to be remembered is that the short term benefits for legalising torture for situations such as the ticking bomb scenario have to be measured against the long term consequences of legalising such a morally detested act, for its effects on society. I believe these two polar concepts can be reconciled through ‘reasonable deontology.’ This approach allows for torture to occur in a situation that poses a serious threat to society, yet it does not justify the act and still remains firm on the view that torture should be legally prohibited in the law. As Jens David Ohlin in ‘The Bounds of Necessity,’ believes, legalising torture ‘opens a Pandora’s Box of unsavoury consequences,’ especially for society. Society should not be allowed to excuse torture as a morally right way of interrogating criminals or suspected terrorists, for if this is allowed we stand to lose the fundamental principles that the law is supposed to uphold, thus changing the nature of society’s moral commitments.
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