In the previous post I explained my broad theory of the moral limits of the law. It can be summarised in this way: The moral limits of the law should not depend on the subject-matter in question, but on the peculiar nature of the law which is to enforce it. I put forward the principles of effectiveness (balancing the goals of the law to come up with an effective system) and certainty (coming up with a reasonably clear set of rules so as to allow conduct to be guided and prevent judges from having too much control over matters best left to the individual conscience) in determining how law should enforce morality. I also explained that freedom of speech meant that offence (including disgust and outrage), although a (mild) moral harm, should be discounted by the law - policing it would infringe too deeply on freedom of speech.
I will now turn my analysis on a very different, and substantially more controversial topic - torture. I will argue that it some rare cases, torture can be morally justifiable from the individual point of view, but that the law must draw one of its clear lines to say that it never accepts it as justifiable. There is a parallel with the popular hypothetical case of stealing to feed one's family. In both cases the fact that the action was justifiable in the individual case suggests that punishment is harsh. Nevertheless the alternative is handing to courts a decision which they should not have the power to make.
The suggestion that torture can rarely be justified comes from the much-vaunted ticking bomb scenario. In this situation a bomb will soon kill hundreds of innocents if a terrorist is not tortured to reveal its location. As a hypothetical it is simplistic and it is often meant to use such a rare instance to justify a whole edifice of torture through a wedge strategy. Nevertheless, the scenario might have something to it.
The problems of the scenario are large and obvious. How are we to know that the person we have is the real terrorist? Will torture actually effectively get us the bomb's location? However, hidden in the centre of all this is the fact that from the interrogator's point of view, it might well seem both possible that torture will work, and certain that the person in question is the perpetrator. Now, I am firmly against abusing basic rights of innocents (ie. torturing or killing them) for the 'greater good'. However the situation is much less clear with the non-innocent. We are willing to allow killing in self-defence or defence of others if necessary. Why not allow torture on the same footing? As long as constrained strictly to those who are actively trying to kill others (or similar) and to where necessary to prevent such evil, it would seem morally difficult to allow one but not the other.
If the leap is difficult to stomach, imagine this. A man has a bomb strapped to him in a crowded place. The timer ticks down with each of his heartbeats. The only way to stop the detonation is to shoot him dead, stopping the countdown. On a simple preservation of others principle, this can be justified. Now imagine that the man has the same set up but the man and bomb are separate, remotely linked. The man is in custody when you discover that his heartbeat will still detonate the bomb. The only way to stop it is to kill him. It would seem that since the only real thing that has changed is proximity, it must still be okay to kill him. Which brings us to the ticking bomb scenario. Once again, the only way to diffuse the bomb is to violate one of the man's basic rights. Unless we are willing to argue that torture is so absolutely awful that it cannot be allowed even where killing can (an argument I am loathe to accept here), we must accept that torture could here be morally justified on the same principle as killing the prisoner in custody.
Hopefully now it will be clear why an interrogator might legitimately feel morally justified in torturing, at least in a rare number of cases where they are certain of the person's guilt. So what should the law's response to this be? Firstly, consider efficiency - that the law must balance its legitimate aims. Whatever the rare good that can be done by torture, many aims point against the use of torture: Upholding the reputability of the law and keeping society generally opposed to the concept of torture; ensuring as little as possible harm is done to innocents (where torture is allowed, more innocents will end up tortured); and avoiding fruitless punishment (often torture will fail to yield anything, merely adding more harm to the equation). There is a very real danger that once torture is introduced for extreme cases it will become increasingly normalised, on a slippery slope towards routine use to make suspects confess rather than to save lives.
Secondly, remember certainty - the value of ending up with clear cut rules which it is safe to give to judges to adjudicate. It is true that clear cut rules could be set down, only authorising torture when people's lives or bodies could be saved by it, and where there is overwhelming certainty of guilt. It could even be required to be no more than necessary and appropriate to the situation, although that would be difficult to define. The first big problem with such a situation is that it allows the interrogators or police to act as judges or juries. It will require them to judge on those issues, and give a legitimacy to their decisions. Even if there are special investigators appointed to make decisions, the pressure from police will impinge on any standard of unbiased decision making. An emergency judgement from a proper court might improve this, but the constrained time will still have corrosive effects. Judges will inevitably be tempted to find for the interrogators for fear that unlike torture, killing is irreversible. The evidence may not justify such a finding, but it becomes more and more likely.
But what about the easy cases? The case where the perpetrator is gloating about what is going to happen? Firstly, if such actions were likely to lead to torture, such people would simply stop gloating and instead post anonymously or give tip-offs to police without any documentation of the fact. It would become more difficult to find anyone guilty under such a standard. Secondly, however, the situation has become so amazingly hypothetical as to become almost irrelevant as a legal standard. Someone would have to willingly admit that they were party to actions likely to cause death or serious injury to authorities they knew would be likely to torture them for it. There would have to be time to take them before a judge where they would have to again admit to such knowledge. Only then could torture take place. It seems unlikely that such an event would ever take place, and if it did the culprit seems more likely to be a psychotic masochist keen to be tortured than someone with any actual information. For this case, should the law be willing to risk all the other aims above, especially the risk of the spread of torture to less worthy areas? It would seem implausible.
What is generally advocated is more akin to torturing those reasonably suspected of being terrorists until either they confess or seem unlikely to have anything to know. The harm caused by the law permitting anything near this level suggests that it is unthinkable, and this is not affected by the fact that in certain mostly hypothetical cases, it might be morally acceptable.