Mirko Bagaric

The literature on torture is extensive and conflicted over the question whether torture is ever morally or legally justifiable. So far as the law is concerned, torture is forbidden by international customary law and legislation, by treaties and by the domestic legislation of most nations. Despite the near uniformity of the law on torture, its morality is contested in ‘ticking bomb’ cases, a contest that goes back to Jeremy Bentham’s utilitarian justification of torture in the early 19th century. Academic lawyers, Mirko Bagaric and Julie Clark, are enthusiastic proponents of the same utilitarian argument that the deliberate infliction of unbearable pain is morally permissible and should be legally justifiable when it has the purpose and probable effect of compelling information that will save lives.
Their argument is embellished with a formula of illusory mathematical precision. Interrogational torture of W, is justified when (W x L x P ÷ T x O) where W, the person to be tortured, is a ‘wrongdoer’; L = the number of lives that will be lost if the information is not revealed; P = the probability that person can and will provide the information; T= the immediacy of the threat and O = the likelihood that the threat can be averted without resort to torture. Of these variables only ‘W’ for ‘wrongdoer’ calls for comment. The implication that only suspected wrongdoers can be tortured rests on the assumption that no-one can be justified in refusing to reveal their knowledge of impending danger to the lives of others.
As Bagaric and Clarke comment, there is an obvious ‘degree of imprecision…and considerable scope for discussion and disagreement regarding the exact weight that should be attached to each variable.’ But we should be assured that lawyers are accustomed to making decisions based on categories of indeterminate reference and they conclude that there is ‘no basis for believing that torture will be sanctioned in inappropriate circumstances’.
The utilitarian argument in support of interrogational torture is familiar and persuasive for those who can accept that ends will justify means, no matter how repellent, when good consequences outweigh the bad. It is unnecessary to traverse the battle lines in this familiar argumentative territory. The authors place equal reliance on a more compelling and pragmatic argument. Most governments they say, of whatever political constitution or complexion, do resort to torture when their officials are convinced by circumstances that the end justifies the means. They list many examples. Bagaric and Clarke draw on the jurist Alan Dershowitz and propose legislation to authorize interrogational torture pursuant to the issue of a warrant. When interrogational torture by security forces and other governmental agencies is endemic, harms can be minimized and benefits maximized, they say, if resort to this cruel expedient is constrained within a legal framework of permitted torture, administered by a responsible state official.
The argument from harm minimization is familiar and it has had beneficial applications in other circumstances where permission is given in exceptional circumstances for conduct that violates the moral principles of most citizens. The amelioration of laws against abortion, possession and use of recreational drugs and euthanasia are familiar examples in which moral harms became legally permissible.
In time, however, conduct that is legally permissible tends to become morally permissible as well. The real question, never sufficiently addressed by Bagaric and Clarke, is whether interrogational torture should be brought within this familiar process of moral acculturation. There is, on the contrary, much to be said for retaining the outright prohibition against torture and leaving the possibility of exculpation to the uncertain application of the last ditch defence of ‘overriding necessity’; prosecutorial discretion or compromise; or the possibility of an executive pardon. Perhaps officials who contemplate torture in ‘ticking bomb’ cases should do so in the awareness that they may be disgraced and punished, if they resort too readily to the thumbscrew and the rack.… (altro)