Philosophy 220
The Moral Status of Torture
Some Definitions: Torture
 Defining torture is also a challenge, in this instance because
of a problem common to moral evaluation: the fact that
strictly delimiting acts of torture from other similar acts is
difficult, if not impossible to do.
 Timmons cites the U.N. Convention on Torture as a
definition (see p. 506).
 Three implications: (1)Given the ambiguity highlighted
above, much emphasis is given to the motivations of the
person performing the act; (2)Some acts are clearly torture,
some acts are clearly not, but there are some which straddle
the line; (3) the definition restricts torture to acts done be
individuals at the behest of state authority.
Shue, “Torture”
 Shue bases his remarks on torture on the commonly
recognized limitations on the exercise of war as
highlighted in Just War Theory's concerns about Jus in
Bello.
 The concern to insulate noncombatants from the
effects of war can be understood to serve a number of
principles
 Efficiency: helps to minimize human suffering.
 Humaneness: only way to conduct war consistent with the
requirement to respect human dignity.
 Fairness: limits war only to the participants.
Why People Abhor Torture
 Reflection on these principles helps understand the
common revulsion against torture.
 Even the weakest of these principles (fairness)
seems violated by acts of torture, which can in no
way be construed as a "fair fight."
 Generally, all of these principles underscore the
wrongness of assault upon the defenseless, which
is precisely what torture embodies.
Are they all defenseless?
 In response to this common argument against torture,
some people reply that captured individuals who retain
important information are not absolutely defenseless, in
that they could defend themselves by surrendering that
information (Shue calls this the "Constraint of Possible
Compliance").
 This sort of argument clearly does not justify any
torture, especially what Shue calls “Terroristic Torture,”
torture used to frighten or control a population through
intimidation.
Interrogational Torture
 A more difficult case is that of Interrogational
Torture (torture which aims at extracting
information), which to the extent that it is limited
to the pursuit of justifiably important information
may satisfy the constraint of possible
compliance.
 Clearly, even if justified, IT does not permit any
and all torture: few acts of torture fall clearly
within the IT class and any sadism is forbidden.
Possible Compliance?

More substantively, the constraint of possible compliance
significantly limits the application of torture.

Shue identifies three different types of individuals against whom
torture may be used, each of which embodies a different
relationship to the constraint.
1. Collaborator: not closely involved with the “group,” this person
2.
3.
can readily comply and would thus seem to satisfy the
constraint.
Innocent : have no information to give and thus cannot comply,
torturing this person would never satisfy the constraint.
Committed: since complying would require this person to betray
their ideals, there is no real chance for escape, and thus the
constraint would not be satisfied.
Implications?
 When we consider the range of people against
whom torture may be directed, it becomes clear
that the constraint of possible compliance
authorizes a very narrow range of IT,
essentially limiting it only to collaborators.
 This in turn calls much IT into question as it is
rare that collaborators would have the sort of
information necessary to justify torturing them
for it.
Final Assessment
 On Shue’s analysis, most acts of torture will not be justified.
 This includes the whole class of acts properly characterized as
terroristic torture, which though perhaps formally justifiable in
specific and extreme conditions, would in practice be virtually
impossible to constrain appropriately.
 Once begun, such acts would tend to become a permanent feature
of the State's activities (see pp. 546-7).
 Though it is certainly possible to conceive of an instance when IT
would be justifiable (the ticking bomb), these circumstances would
be so rare in fact that the argument in favor of IT certainly doesn't
justify relaxing the legal (or moral) prohibitions against the activity.
Dershowitz, “Ticking Bomb?”
 Dershowitz offers arguments in favor of the sort
of IT characteristic of the “ticking bomb”
scenario.
 While we saw Shue would also authorize this
sort of IT, Dershowitz offers a somewhat less
constraining moral analysis and argues that
existing laws should be changed to explicitly
authorize torture in these sorts of
circumstances.
Utilitarian Considerations
 Dershowitz appeals to the tradition of utilitarianism
to make his case for Ticking Bomb Torture.
 We have already seen the intuitive appeal of this
sort of consequentialist thinking in the case of war.
If the torture of 1 person could save the lives of a
hundred, it seems reasonable on consequentialist
grounds to authorize it.
 It's not only a numbers game. Pain is certainly a lesser harm
than death.
Another View
 An important counter-argument to this common-sense
consequentialism comes from consequentialism itself.
 The sort of justification appealed to on the last slide is best
understood as an application of act-utilitarianism. Ruleutilitarians have argued against all torture on the basis of the
claim that, such an act, once institutionalized would violate a
consequentially justified rule.
 The underlying concern is that if we start playing the “end
justifies the means” game, anything will be permissible (the
so-called “slippery slope”).
Appropriate Constraints
 Dershowitz ultimately wants to undercut this
sort of slippery slope argument, though he
recognizes its force.
 The way to do this, he thinks, is to consider the
appropriate role for limiting rules.
 The first step is to acknowledge that the
infliction of pain if appropriately constrained, as
in for example punishment, is morally
unproblematic.
Three Ways

Relying on his experiences with the debate in Israel
on the question, Dershowitz identifies a number of
possible models for establishing appropriate
constraints.
1. Twilight Zone: allow elements to practice torture outside of
2.
3.

public knowledge or control.
Hypocritical Approach: turn a blind eye to torture.
Rule of Law: legally specify and constrain the circumstances
and methods of possible acts of torture.
A fourth approach would be a blanket prohibition, but
Dershowitz denies that anyone really advocates this.
Where is Shue?
 On Dershowitz's schema, Shue would seem to be
advocating something like the first of these options.
 Dershowitz is critical of this standpoint because while it
does satisfy our concerns for individual and national
welfare, it is silent on concerns for civil liberties and the
rule of law.
 “In a democracy governed by the rule of law, we should never
want our soldiers or our president to take any action that we
deem wrong or illegal” (555c1).
The Lessons of History
 To make the case for the third option, Dershowitz appeals
to history, specifically the situation in England during the
16th and 17th centuries.
 Then and there, torture was legally proscribed under
specific conditions and tightly controlled by the central
government.
 Though this sort of system doesn’t prevent abuses or
completely remove the negative social/aesthetic
implications of torture, it is clearly easier to control than
the twilight zone model.
Benefits of a Warrant System
 In this third option, a judicial warrant would have to be
secured for an act of torture to be permissible.
 Dershowitz believes that such a system would limit the
acts of torture to the minimum required, be maximally
protective of civil rights, and specifically better protect
the rights of possible victims of torture.
 The appropriate analogy, he argues, is with search and
seizure rules, which the courts have long argued are
better protected by judges than by police officers.
One More Concern
 Dershowitz closes his discussion by considering a final
counter-argument from someone like Shue: that
formalizing the constraints on torture in law risks
establishing a precedent that would be difficult to
constrain.
 Dershowitz acknowledges the difficulty of precedent,
and the accompanying social dangers, but insists that
in a democracy it's better to have this conversation in
advance than fly by the seat of our pants.
 Guantanamo seems to bolster his case.