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Publication Title

Washington University Jurisprudence Review

Abstract

In this Note, I provide potential replies for two important groups that support a universal prohibition of torture. Each arrives at the same conclusion by using different modes of analysis. Consequently, both groups must overcome different obstacles to distinguish torture and legal killing. Ultimately, both groups successfully defend their point.

In Section I, I describe the argument that torture should be permitted because it results in less physical harm than legal killing. However repulsive the practice may be, torture usually leaves the victim alive to see another day. If killing is sometimes permissible, analogical reasoning suggests that torture ought to be sometimes permissible as well. From this comparison, many conclude that the law ought to allow officials to torture to prevent imminent catastrophes. This argument can be dissected into a six-step syllogism. It makes two claims and one important assumption.

In Section II, I present rule utilitarianism's reply to this argument. I describe how rule utilitarians analyze morality. Rule utilitarians conclude that torture must be banned unconditionally for two reasons. First, the benefits of allowing some torture are marginal and uncertain, while the costs are substantial, given the distinct likelihood of unnecessary torture. Second, allowing some torture might drive a slippery slope to torture in less justifiable circumstances. But why are rule utilitarians not similarly concerned about unnecessary killings and a slippery slope to more killing? What makes torture so different that it requires a universal ban?

Numerous inherent epistemic barriers and conceptual obstacles distinguish torture and killing. First, to interpret the preconditions for torture correctly, officials must overcome the modal problem of distinguishing possible dangers and actual threats, and then overcome—conceptual vagueness in the terms "imminence" and "catastrophe." Second, our inability to distinguish false and truthful disclosures of subjects causes the infliction of unnecessary pain. Third, conceptual vagueness in the term "suspect," only exacerbated by the frustration of war, makes torture more susceptible to the slippery slope. Finally, because prohibition of torture epitomizes the legal archetype of non-brutality, legalizing torture has a unique ability to affect other laws.

In Section III, I provide deontology's reply to the objection. I describe how deontologists analyze morality and how their analysis differs from rule utilitarianism. Deontologists forbid torture under all circumstances because it violates the victim's rights. Such doctrinal rigidity attracts much criticism, particularly in the face of catastrophic danger, but deontologists effectively expose the weaknesses of these criticisms. Responding to analogies to legal killings, deontologists present two arguments. First, the objection contains a hidden premise that deontologists reject, ultimately dismantling the syllogism. Second, using the moral criteria deontologists accept, torture and the state-sanctioned killings can be distinguished. Torture attacks the defenseless and specifically targets human dignity.

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