My Problem with Torture

30 Replies to “My Problem with Torture”

1. Typically, laws that prohibit X are interpreted as saying “do not X.” That’s the interpretation you seem to be working with. There is another way of interpreting such laws, though. Such laws could instead be saying, “If you X, you will have to pay a price.” The price is the punishment for X-ing. We can think of our schedule of punishments for crimes as a price list for engaging in them, with fines, community service, imprisonment, and perhaps death as the assorted denominations of criminal currency. Setting a very high price for a crime will have the effect of discouraging it. It also expresses the idea that one better have a very good reason for committing the crime.
   Laws against torture, if understood this way, are compatible with the idea that it could sometimes be morally permissible to engage in torture. On this interpretation, the law against torture doesn’t really say “do not torture.” Rather, it says, “if you torture, you will have to pay.” And we set the price really really high for torture, so you better have a really really good reason for torturing, just as you better have a good reason for engaging in other costly activities.
   I think this “economic” conception of criminal law makes sense of your combination of views, Ralph, though you may find it otherwise objectionable.

2. Justin,
   That’s a really interesting suggestion. This isn’t my area, but I was hoping you might humor me and maybe answer a question about this view you’ve floated.
   If I’m reading it right, it seems that we ought to be able to cash out these laws in terms of wide-scope oughts: you oughtn’t both A and refrain from paying the established price.
   If that’s all that the law amounts to, it isn’t entirely clear what value the law is supposed to protect. It’s not the value that is damaged by one’s A-ing, but the value that is damanged by those who A without paying. That seems really odd, to me, because it suggests that so far as the law is concerned there’s no more reason to refrain from A-ing than there is to A and pay the price. And if that were true, why would there be a price associated with A-ing that is paid when we punish? If we say that there’s some value that the law is concerned with that is damaged when one A’s, why wouldn’t the law give us the kind of reasons associated with narrow-scope oughts, those that enjoin us to refrain from A-ing regardless of our willingness to pay the price the law requires us to pay if we A?
   It’s also a bit puzzling why we’re justified in _punishing_ those who A willing to pay the price if the reasons associated with the laws are conformed to equally well regardless of whether the subject A’s while willing to pay the price or refrains. Yes, we’d extract a price, but it’s hard to make sense of the attitudes that typically are associated with punishment.
   Sorry, I’m not 100% certain that this makes sense. I’ve been flying all day and I’m killing time while stranded in the Phoenix airport.

3. “I am very strongly inclined to insist that even in these cases [of morally permissible torture], the policeman should be convicted of a criminal offence. My problem is to see how this combination of views can possibly make sense.”
   I guess I’m pretty sympathetic to the global consequentialist response: the best legal system is one thing, and the best act is another, so there’s no contradiction here.

4. I think that the things you say in the end seem to be enough to justify the law that outright forbids torture.
   I’m not an expert on applied ethics either. But, I started to wonder about comparing the torture case with killing cases. In some sense, being killed seems worse than being tortured (if I had a choice I would choose the latter). I take it that the relevant laws have some exceptions to the way they forbid killing – self-defence, for instance. Do you think that the blank law should forbid torture even for self-defence? This would seem odd. If I could prevent someone from killing me by either torturing her or by killing her, I would say I should torture her. But, now there is threat that on your view killing her would be the only legally permissible choice.
   Or, do you think there should be blank law that bans killing too? This law would apply even when it could be morally permissible to kill, like in the self-defence cases. This would mean that the cops who shot de Menezes should have been convicted even if they had had a moral ground for doing what they did. (I’m quite shocked that they weren’t but that’s another thing).

5. I don’t see how this economic interpretation of the law can be at all valid. If that were the case you might expect a recidivist offender to pay the same price for each conviction of the same offence, but rather the penalties will increase each time.

6. I think I basically agree with Clayton, although I am hoping something close to Justin’s idea can be saved because it (a) has some intuitive resonance for me and (b) promises to solve Ralph’s problem.
   Here’s a further elucidation of what Clayton said. Think of the difference between a parking lot, where you pay $30 to park for the day, and an illegal parking spot on the street, where the fine is $30. For someone who simply does cost/benefit analysis (this is Kelsen’s “Bad Man”, I think), they are equivalent, so if the spot on the street is a little close to his office he’d just take that one and he’d feel bewildered if someone criticized him for it. In the case of the parking lot, it’s straightforwardly true that the only wrong would be taking the spot and not paying for it. Why isn’t the same true for the illegal spot on the street?
   But now consider the market in pollution credits: the commodity is created by the government as a way of making environmental regulations efficient. Here the idea is that polluting is wrong, but if you pay the price you’ve mitigated the wrong, and the background principle is that although pollution is bad there are some costs of avoiding it that are too high to pay. In this case, I think, we might be able to answer Clayton’s hard questions. What value does the law protect? Clean air and water. So, then, why do we say it’s okay for someone to pollute the river as long as he pays? Because there are some costs that are too high to pay to protect the value; the price of the credits is set so that nobody will be forced to pay that too-high price.
   I don’t know if the pollution credit idea really works — I’m certainly not claiming that it does. But insofar as it makes good sense, the same structure seems to work for Justin’s torture laws.

7. Joss – the answer is price discrimination. Recidivism indicates that a person has a greater preference for committing crime. Our legal system can be structured so as to “charge more” to those whose preference for comitting crime is greater. This means that those who are repeat offenders will generally get more severe punishment.

8. Even if a statute issues a blanket prohibition against torture, I think that a government agent (or anyone, really) who uses torture in a ticking bomb case could argue in court that the torture was justified. I don’t think that an anti-torture statute would explicitly have to allow for the possibility of someone’s arguing that the torture was justified in order to prevent an imminent harm; I think that it would have to explicitly rule out this possibility if it were decided that agents should be punished in spite of the harm that they prevented. (Although I’m neither a lawyer nor a philosopher of law.)
   On the economic interpretation of the criminal law… I started a thread a few months ago titled something like Punishment versus Prices where several people made some useful contributions on this topic. Apologies for having let that thread drop, by the way. I had wanted to take my time in responding to some of the suggestions people made, and the longer I took the better it seemed like my response had to be in order to justify the delay, and eventually I had taken so long that no response I could possibly write here would be adequate. It has been so long now that I’d have to write a book on the subject or something to get myself out of the hole.

9. There is still something that seems to me very puzzling in Ralph’s worries. It is that the *morally* best legal system (e.g., the system that always punishes torture) will likely punish some morally required actions.
   That it will punish some morally permitted actions is not puzzling, since presumably punishment will sometimes, for instance, serve a necessary coordinating function (traffic tickets, say). That it will sometimes fail to punish morally forbidden actions is also not puzzling, since some of what is morally forbidden so clearly falls outside of the purview of the law (e.g., lying). But that an action is morally required of you, yet punished by the morally best legal system, does seem very troubling.

10. 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.
    Ralph, that’s really interesting. I’m not sure how intention figures in torture. Two cases. (1) Suppose I intend to inflict severe pain on S, but unknown to me, S has been replaced by S’. I have no intention of inflicting severe pain on S’. I proceed to drill holes in S”s teeth without anesthesia (mistakenly believing that he’s S). That’s torture, isn’t it? Ok, I didn’t intend to inflict severe pain on S’, but I did intend to inflict severe pain simpliciter. (2) Suppose I can throw one dart giving me a 1 in 3 chance (say, given my skill) of hitting 50 points on a dartboard. If I miss, S will be badly tortured (an electric current is triggered by mssing 50 on the dartboard) and I know this. If I hit, I get $100.00. I don’t intend to torture S. I intend to win the $100.00. Naturally, I miss. I don’t intend it, but I certainly torture S, don’t I?

11. I don’t myself find it that implausible that the morally best legal system for beings of known defective judgment should sometimes punish the morally best action. I suppose it is being a consequentialist which makes such things seem predictable rather than paradoxical to me, but I’m inclined to think that’s one of the advantages of consequentialism.
    It is perhaps also noteworthy that as a practical matter a legal system for humans can’t help but leave many things up to individual judgment. Even in the absence of any official policy condoning torture in some special circumstances, it seems pretty likely that somebody who practices torture in a genuine ticking time bomb case will end up avoiding punishment due to discretion of prosecutors, attitudes of juries, etc. This provides an additional reason not to want an official policy; not only is it virtually guaranteed to be abused, but it isn’t even necessary to produce the desired benefit.

12. Regarding the parking case that Jamie describes, my view is that if we really think that a person has more of a reason to park in a pay lot for $30 than to park on the street in a no-parking zone and pay a $30 fine, it is because we think that the spot on the street is “underpriced.” That is, when we think of why it is objectionable to park in a no-parking zone in the street, we think of all the ways in which doing so would cause problems or interfere with others’ plans. So we imagine the car blocking traffic, or getting in the way of people crossing the street, or taking the spot that an ambulance or fire engine would use, and so on. Additionally, we tend to attribute objectionable traits to the person who would commit the act. The person is selfish, imperious, unaware of the needs of others, etc. So if we imagine illegal street parking as a highly problematic act caused by a wicked person, we will feel angry if someone “gets away with it” by paying a mere $30. We will think that parking there should “cost” more than $30. (And indeed, this is what we see in cities that deal with a lot of parking and have to worry about the interference of cars parked in the wrong places. It is expensive to park a car in a garage or lot in Manhattan, but it is peanuts compared to the fines for parking illegally on the street.)
    So in the abstract, we are likely to agree with Jamie’s thoughts about these kinds of cases: “In the case of the parking lot, it’s straightforwardly true that the only wrong would be taking the spot and not paying for it. Why isn’t the same true for the illegal spot on the street?” But in cases in which we imagine decent people illegally parking for noble purposes (someone in a vintage sedan has to drop off a guy with a bleeding leg at the doctor’s office), I don’t believe we’ll think there is some additional wrongness or badness that the mere illegality of the act produces. In short, the sense (illusion?) that illegality adds to wrongness comes from our tendency to attribute potential bad consequences to illegal acts and evil character to their perpetrators.
    (Jamie offered the parking example as a way of elucidating Clayton’s point. I’m not sure if my response to the example is an adequate response to Clayton, though. If I have time I may respond more later.)

13. Now a large part of the answer might just consist of those obvious points […] 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.
    I just finished teaching a short unit on this issue, and it strikes me that part of the problem, e.g. with Dershowitz, is that these obvious points are made and then often ignored. If the ticking bomb case, as generally described, requires certainty (that we’vegot the bomb-planter, that the bomb is ticking, that interrogational torture is the only way to get information about the location), then as Prof. Wedgewood points out, such a case has yet to be cited. If such a case did arise, and torturing was done, most of us would find that understandable and perhaps excusable. The remote possibility of such a case occurring in real life makes the idea that we need policies in place beforehand seem odd. But if we do need policies, perhaps the epistemic standard (see what we know in the ticking-bomb case above) needs to be set so high that such policies are a de facto prohibition of torture. (I think the pragmatic worry here about making positive policy on torture is that those who don’t have qualms about torture as an interrogational practice will look for loopholes; once you have a policy, those who want to fudge on it will have something to work with.)
    This means that anyone who tortures ought to be made to answer (e.g. in court) for that action; this is Justin W’s point above. The main worry I wanted to add has to do with the risks of making positive (rather than prohibitive) policy outlining the marks of permissible torture.

14. I’m having trouble seeing the original problem at all … why think it implausible that the morally best law would sometimes punish people even for doing something that they are morally required to do? At least, why think this when we bear in mind that the best law is that which fulfills a certain institutional role in the context of an imperfect society?
    William Blackstone said, “It is better that ten guilty persons escape than that one innocent suffer.”
    “Well then,” we might ask, “how about fifty guilty escaping, or five hundred?”
    Clearly the implication is that there is some number of innocent men that the best law would convict, on pain of convicting nobody at all.
    The present example is similar in structure: the best law would have to extract a price from some morally worthy individuals, on pain of failing to succeed in preventing torture in general.
    I am quite attracted to Justin’s view, but I’m not sure it can solve the problem, if there was one to start with. On the original view, the worry was why the law should say “Do not torture” if torture is sometimes morally permissible, or required. On Justin’s view, the law says “Do not torture without paying the price”, or equivalently, “You must pay a price for torture”. But now a similar worry arises: why should the best law say “You must pay a price for torture” if torture is sometimes morally permissible, or required? It’s not clear to me that we could answer the second worry without answering the first.

15. Ralph — I was just thinking about this question, in connection with various spy novels I’ve been reading. Might the shipwreck cases in English law be relevant: cases where the survivors were held to account for killing one of their number for food, though the punishment was either suspended or mitigated, presumably on the grounds that the act was necessary for survival under the circumstances? Unfortunately, I can’t supply details, but people in philosophy of law (among others) would be familiar with these frequently cited cases. In torture cases, it’s not survival of the torturer that’s in question but one might maintain that the act, though still wrong — or at any rate worthy of absolute legal prohibition — is morally necessary. Those who accept genuine moral dilemmas, as cases where all alternatives are seriously prohibited, might still balk at counting torture as morally *permissible* in such cases, but the moral/legal distinction would allow you to say that. Presumably on some matters it’s so important to the practical purposes of the law that it express condemnation of certain acts and to deter individuals from taking it upon themselves to determine that they’re necessary, that it might legitimately make heavier demands than morality.

16. Here’s a suggestion which I’m not fully convinced of. We allow killings for self-defense, as Ralph noted. But one way to think about that is that what’s allowed is prevention of another killing (or other horrible crime) which may or may not involve lethal force. Of course, in many actual cases, one can be pretty sure that lethal force is being used, and even required. But still, when killing in self-defense, there is some sense that the killing is a side effect. At any rate, it is not killing per se that is desired, but only protection of the other party.
    (I think Aquinas goes so far as to say that one should never intentionally kill, though one may regard the other’s death as foreseen with certainty. I’d have to look that up though.)
    Now, when (as it were) torturing in self-defense, it is really deeply implausible that anything like the intention/foresight distinction can be maintained. You can’t sit there applying electric shocks to someone’s genitals and say that the pain you’re causing is a side effect, even in a remote sense. Or that pain per se is not desired, only information. Pain is the point.
    Thus (if there’s anything to this line of thought, which I’m unsure of) there is a morally important difference between killing-in-self-defense and torture-in-self-defense.

17. Here’s a suggestion which I’m not fully convinced of. We allow killings for self-defense, as Ralph noted. But one way to think about that is that what’s allowed is prevention of another killing (or other horrible crime) which may or may not involve lethal force. Of course, in many actual cases, one can be pretty sure that lethal force is being used, and even required. But still, when killing in self-defense, there is some sense that the killing is a side effect. At any rate, it is not killing per se that is desired, but only protection of the other party.
    (I think Aquinas goes so far as to say that one should never intentionally kill, though one may regard the other’s death as foreseen with certainty. I’d have to look that up though.)
    Now, when (as it were) torturing in self-defense, it is really deeply implausible that anything like the intention/foresight distinction can be maintained. You can’t sit there applying electric shocks to someone’s genitals and say that the pain you’re causing is a side effect, even in a remote sense. Or that pain per se is not desired, only information. Pain is the point.
    Thus (if there’s anything to this line of thought, which I’m unsure of) there is a morally important difference between killing-in-self-defense and torture-in-self-defense.

18. Here’s a suggestion which I’m not fully convinced of. We allow killings for self-defense, as Ralph noted. But one way to think about that is that what’s allowed is prevention of another killing (or other horrible crime) which may or may not involve lethal force. Of course, in many actual cases, one can be pretty sure that lethal force is being used, and even required. But still, when killing in self-defense, there is some sense that the killing is a side effect. At any rate, it is not killing per se that is desired, but only protection of the other party.
    (I think Aquinas goes so far as to say that one should never intentionally kill, though one may regard the other’s death as foreseen with certainty. I’d have to look that up though.)
    Now, when (as it were) torturing in self-defense, it is really deeply implausible that anything like the intention/foresight distinction can be maintained. You can’t sit there applying electric shocks to someone’s genitals and say that the pain you’re causing is a side effect, even in a remote sense. Or that pain per se is not desired, only information. Pain is the point.
    Thus (if there’s anything to this line of thought, which I’m unsure of) there is a morally important difference between killing-in-self-defense and torture-in-self-defense.

19. Heath,
    I was thinking something like that too. But, then I thought about the Tazer guns that police use to stop people. These things stop the attackers by excruciatingly painful strong electric shocks. As far as I know, that counts as torture where the torture might not be intended in itself but used as a means for avoiding the attack.

20. Isn’t blogging amazing?! An idea that has been churning at the back of my mind ever since Kamm’s lectures bubbles up; I post it online, and 24 hours later I have something like 20 incisive comments from 15 terrific philosophers! It’s simply wonderful…
    Anyway, there is far too much in these comments for me to reply to each point individually. In this rest of this comment, I shall comment on the biggest and most important theme that emerges from these comments. Then I shall briefly comment on some of the other themes that emerge in a second comment.
    1. One crucial theme concerns the nature of the law. I guess that I was assuming that there is an “internal perspective” of the law itself – a perspective that is often taken up by legal officials (such as judges and lawyers who are appearing in court, etc.) – and that within this “internal perspective” the law is viewed as a system of requirements that members of the public have a moral obligation to comply with. Contrary to Justin’s economic interpretation (which Simon also expresses some sympathy with), I take it that this is the crucial difference between the requirements of a genuine legal system and the threats of some gangster who aims to induce people to comply with his demands by increasing the “price” of non-compliance. (All this is of course meant to be compatible with the more subtle kinds of legal positivism, such as positivisms of Hart and of Raz.)
    Now, when the law is imperfect (unjust, or irrational, or ill-designed in some way), it is not surprising that the law prohibits conduct that is actually all-things-considered morally required. But I have to say that I sympathize with Robert, Clayton and Jamie (and not with Simon, Aaron, or Richard) in thinking that it really is somewhat puzzling that the morally best legal system would forbid certain types of conduct – and so would represent these types of conduct as ones that we have a moral duty to refrain from – even if in some cases we are actually all-things-considered morally required to engage in such conduct.
    So, at least given the view of the law that I am inclined to accept, I really do have a problem that I have to solve somehow.

21. 2. Jussi asks whether it really makes any sense for self-defence to be a legal justification for homicide and yet not a legal justification for torture. As a matter of fact, the legal prohibition of torture focuses on the instigation of acts of torture by public officials. It does not include acts of torture that are committed by private citizens. (When a private citizen tortures someone, the citizen would normally be prosecuted for assault and wrongful imprisonment, etc., not for torture.) I don’t mean to dispute that there might be unusual cases in which it would be acceptable for self-defence to count as a legal justification for a private citizen’s torturing someone. I was only voicing my support for the current law, which absolutely forbids public officials from committing or instigating torture in any cases.
    3. Dale maintains that under current international law, “necessity” can be a justification (or at least an excuse) for torture in “ticking bomb” cases. Admittedly, I am no more of a lawyer than he is, but I am confident that what he says is controversial in legal circles: there are many reputable human rights lawyers who would vigorously dispute Dale’s claim that there is a compelling legal defence for torture in such “ticking bomb” cases.
    4. Mike tries to raise a couple of counterexamples to my claim that torture requires the intention to inflict pain. But I do not find his cases persuasive. In the case where you intend to torture Arthur, but in fact torture Bertrand by mistake, you still have the intention to inflict pain on someone, and that is enough to make your act an act of torture. In the dart-board case, you are certainly complicit in an act of torture, but I’m not sure that you are yourself the torturer. I would say that it is the people who constructed the machine in this way and attached the victim to the machine who are really intending to inflict pain on the victim. (One can still intend to inflict pain even if you do not regard it as certain, but only as fairly likely, that your act will in fact cause pain.)
    5. Heath suggests that when you kill someone in self-defence, the aggressor’s death is not intended but a mere side-effect. Now, admittedly, there are cases like this. (E.g. you might be intending to incapacitate the aggressor by shooting him in the leg, but cause his death as an unintended side-effect.) But I was thinking of cases where one really does intend to stop the aggressor by killing him – i.e. the means that you intend to use to stop the aggressor is precisely to cause his death.
    Heath suggests that in even these cases, the aggressor’s death is not intended because it is not “desired”. But this seems to involve a failure to appreciate the crucial distinction between intention and desire. I don’t desire to hand over $2 to the barista in Starbucks. Still, handing over $2 is the means that I intend to use in order to obtain the espresso that I desire!
    6. Patricia suggests that in the ticking bomb cases, “necessity” might be a mitigating factor – perhaps even totally mitigating so that torturer should be convicted but not sentenced to any punishment at all. Then we might think that there isn’t such a big gulf between law and morality.
    The trouble is that I am inclined to think that in the sort of cases that Kamm was focusing on, self-defence (or the defence of others) is actually a moral justification for torturing the would-be murderer, not merely a moral excuse or a mitigating factor. So in these cases, I don’t think that there is any “moral dilemma” at all. On the other hand, I don’t think that the defence of the innocent should be a legal defence for torture at all; at all events, it should be neither a legal justification nor a legal excuse — perhaps it should be a mitigating factor, but not a totally mitigating factor of the sort that Patricia had in mind. So, I’m afraid that I’m not keen to accept the solution that she suggests.

22. Here is another half-baked thought. What marks out the objectionable forms of torture, in my mind, from cases like Tasering or killing in self-defense, is that when torturing one is inflicting pain in order to give the torturee a reason for doing something–confess, give information, etc., in order to make the suffering stop. Whereas killing in self-defense, or Tasering, uses death/pain to non-rationally incapacitate the victim. That covers cases where torture is a means to an end; this is not all cases as Ralph points out. And why it should be especially morally important is not something I have a super-good theory of.
    About cases of torturing for fun: there the pain is an end in itself, so to speak. That seems highly objectionable, again I can’t say exactly why.
    About cases of torture where one thinks that is what the crime deserves: I am not in principle opposed to all forms of corporal punishment, so it’s an interesting question what separates corporal punishment from judicial torture. Something about dignity? Not sure at all.

23. Ralph – Just for the record, I didn’t mean to suggest that the *legal* defense of “necessity” applied, or that sentence should necessarily be suspended in (morally) necessary torture cases. In the shipwreck cases, I think what happened is that the judges *at their discretion* suspended or mitigated the sentence *on moral grounds*. For someone who can’t take the torture case as morally dilemmatic (necessary on moral grounds but still wrong, i.e. justified only in a sense that does not imply morally permissible), I think the thing to say is just that the act was (and should have been) legally prohibited but not morally. But I can see that this would be problematic for a certain view of morality and the law.

24. Oh, and I should note that it can be perfectly clear what to do in a moral dilemma in the sense I have in mind, i.e. a situation in which all options are morally impermissible, though one may be better than others. Of course, a utilitarian would have to take that one as permissible.

25. In the dart-board case, you are certainly complicit in an act of torture, but I’m not sure that you are yourself the torturer. I would say that it is the people who constructed the machine in this way and attached the victim to the machine who are really intending to inflict pain on the victim.
    Ralph,
    Let the world in which the dartboard triggers an electric current be one in which the device was assembled accidentially. No one intentionally constructed a torture device. FWIW, it seems clear to me that I am the one responsible (morally and causally) for your being tortured, though I did not intend to do so. I intended to win the $100.00.
    But consider a slightly different case. You tell me if I take route Y I will trip a wire that will cause S to be tortured. Again, suppose that the causal connection was not intended by anyone. I have a choice between route Y and X. Since I am in a hurry to get home, I take route Y. I do not intend to cause S to be tortured, but I do foresee that he will be tortured. It seems to me that I am responsible again (morally and causally) for the torture of S.

26. The problem, or one of them, seems to be that these propositions all seem independently plausible but in tension:
    (a) torture is sometimes morally justified.
    (b) the morally best legal system does not categorically forbid actions that are sometimes justified.
    (c) Our legal system ought to categorically forbid torture.
    (a)-(c) seem in tension because they imply (d) — our legal system ought not to be the morally best legal system — which is prima facie implausible.
    But, to my mind, the same considerations that support (c) also support (d). I assume (perhaps wrongly) that (c) derives its plausibility from considerations along the following lines: if our legal system were made to not categorically forbid torture, it would probably end up allowing torture in cases where it was unjustified. But because torture is such a great evil, it is extremely undesirable that our legal system allow it in those cases. So it ought to be categorically forbidden
    But (d) is also supported by these slippery-slope considerations: If our legal system were made the morally best legal system it would not categorically forbid torture (by (a)). But if our legal system were made to not categorically forbid torture it would probably end up allowing torture in cases were it was unjustified. etc.
    In short, if we accept (a)-(d) we extricate ourselves from the dilemma that (a)-(c) seems to threaten. And (d) is as plausible as (c), so there’s no reason to accept (a)-(c) but not (d). Assuming I’ve set the problem up correctly, this seems an okay solution.

27. First, the problem goes away if you decide, as many have, that torture is *never* justified.
    Second, many legal theorists who’ve addressed the problem solve it by maintaining an absolute prohibition in law (for all the reasons already given above), but permitting executive pardon to let offenders off the hook in particularly compelling cases.
    Third, as a matter of ethical rather than jurisprudential theory, we might think of the case of torture as one in which the “overridingness” of ethical considerations is tested. Philippa Foot, Bernard Williams and others have argued that ethical considerations need not win out in every case, as against non-ethical (e.g, prudential) considerations. Perhaps that’s what’s happening here.

28. Angus,
    I am afraid I have a problem with your solution. Accepting (d) does not seem to be the best option. We should instead just reject either (a) or (c). The only useful way to talk of a ‘best legal system’ when framing law, is the ‘best legal system’ given our conditions. If, under this definition, the ‘best legal system’ is one in which torture is absolutely prohibited then we should chose (c), if otherwise (a).
    I am afraid that Ralph has to choose.
    I am convinced both that torture is not universally wrong, and that laws could be framed in such a way as to provide a better system than one in which torture is absolutely disallowed (if torture is to be defined as in common parlance). However it would then be necessary to heavily rely on a judge’s interpretation. There is no simple solution. It boils down to whether you think relying upon a judge’s judgment of whether the good results outweighs the bad results and his judgment of what the torturer’s knowledge of the situation was, would be better than and absolute barring of torture whatever the results and whatever of the knowledge of the defendant was.
    I would much rather rely on the judges.

29. I’m sorry that I haven’t replied to the latest comments on this thread. (Like many other PEA Soupers, I’ve been busy helping with all of my family’s Christmas festivities.)
    1. I should thank Patricia for her very interesting clarification of the view that she was exploring. Even with this clarification, it’s still true that her view interprets these torture cases as “moral dilemmas” in which none of the available options is morally permissible. However, I’m convinced that torture is sometimes just as permissible as killing in self-defence; so I still can’t accept this view — interesting though it certainly is.
    2. Mike offers another case to show that torture need not involve the intention of inflicting pain. But in his description of the case, he rather stacks the deck by using the very word “torture” that is in dispute. He describes the case by saying: “If I take route Y, I will trip a wire that will cause S to be tortured.”
    A more neutral description of the case would be: “If I take route Y, I will trip a wire that will cause S to suffer extreme pain.” If I take route Y just because I’m in a hurry, and thereby cause S to suffer extreme pain, it is clear that I have knowingly inflicted extreme pain on S — but is it really true to say that I have “tortured” S?
    3. I completely agree with Daniel’s objection to Angus’s interesting suggestion (that this problem shows that our legal system ought not to be the morally best system).
    4. I also don’t want to accept Daniel’s positive suggestion (that judges should be given the discretion to determine when torture is justified), or Stephen’s suggestion (that the executive should pardon torturers who engage in justified torture). This is because I am inclined to think that public officials (such as members of the police force or the like) who torture people should be convicted of a serious crime, and not pardoned! (There may sometimes be a case for their receiving suspended sentences, but that is not the same as a pardon or an acquittal!)
    As promised, I will try to post my solution to this puzzle on PEA Soup some time soon. Just to give a hint: I think that the reason why public officials should be absolutely prohibited to engage in torture has something to do with the distinctive position that the state will put itself in if it gives itself the right to engage in torture. Additionally, I suggest, even an ideal legal system need not represent its legal requirements as ones that we are all-things-considered morally required to comply with; all that it needs to do is to represent its requirements as ones that we have a significant prima facie obligation to comply with. But it will obviously take a lot more space to explain this idea in detail. Watch this space….

30. Ralph,
    You said,
    “…I fervently support the absolute prohibition on torture (at least when instigated by public officials) in international law…. Yet I also have the intuition that torture, in certain improbable but clearly imaginable cases, is permissible…”
    I have to wonder about exactly what you are saying here. Is it that you, like others, feel you’d like to obey the laws, but, when it suites you, or when you feel like it, you’d like to do what you want despite there being laws against your actions.
    So, you understand there are laws against robbing banks, but you have the idea that there are cases where you would rob a bank? I’m afraid this is the idea I get when you say you have the intuition that there are cases when you’d torture someone.
    Why do you keep from robbing banks? Why aren’t more banks robbed considering how many poor people out there who don’t have cash to feed themselves, you’d think they’d go where the cash was.
    Actually, I think that you’ve hit on why that is. People know that there’s a large number of latent torturers out there. They know that there is only a tenuous argument that keeps them from torturing and killing willy nilly. So, they try as best they can to maintain some order. You, on the other hand, seem to be one of those latent torturers who has been restrained from torturing willy nilly because it just doesn’t feel right yet.
    Or, is there something I’ve missed about your problem with torturing? You don’t cause suffering for no reason out in the neighborhoods because well, you figure someone will track you down and give you some payback.
    As for what to do about ticking time-bombs. It seems that allowing the useful episode of torture isn’t going to help. People who have been tortured aren’t going to be much of an argument for future planters of ticking time bombs. The planters realize that in the fight against the torturers there will be a few casualties. I imagine that the torturers are not only torturing but causing some situation where, for that reason, people will think to plant ticking bombs.
    So, if the United States goes into Iraq and kills a million, one should expect a few of their brothers, sons, or daughters, will think to plant a few ticking bombs designed to get back at Americans for their murdering Iraqis.
    Sounds understandable to me. So, if you want to deal with ticking time bombs the better way of thinking is to stop the United States, for instance, from murdering people who have relatives, instead of trying to figure out arguments that make torturing acceptable.