Part V: A Fresh View on Enduring Moral Debates

This portion of the volume will provide considerations of the moral context for the prohibition of torture. That is, in Chapter 14 it is argued that the rule of law has been constructed on the foundational concept that the government cannot infringe upon any citizens’ bodily integrity, and the author presents this claim through rich historical and philosophical argumentation. The contribution that follows probes the utilitarian formula for morally justifying the use of torture in limited and extreme circumstances, and suggests that the arbitrary exclusions that are often put forward (e.g. we cannot torture the child of a suspect) reveal that this ethical paradigm contains fundamental flaws. Closing this section, Chapter 16 represents an archival work into Jeremy Bentham’s writings on torture and brings to light the fact that there have been enormous confusions put forward over what this astute legal and moral philosopher actually believed on the matter; for instance, Bentham likely would have eagerly welcomed the science emerging today.

Col. Steve Kleinman and Laure Brimbal
Volume Preparation Conference, CERL at Penn Law
September 20-21, 2018

Chapter 14

Torture, Dignity and the Rule of Law

Abstract

It has been claimed, “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. If you make this exception [and permit torture], the whole Constitution crumbles.” Three theses provide the terms through which this judgment can be vindicated: (i) Historically, basic rule of law and procedural due process first emerge in the eighteenth century as the necessary legal bases for prohibiting judicial and penal torture. (ii) The modern rule of law is law’s own reflective effort to provide an absolute separation between the force of law and physical force, between legality or lawfulness and state violence. (iii) The rule of law’s emphatic separation between the force of law and the procedures of state violence presupposes that the object of law is the person with dignity, that is, a being possessing intrinsic worth.

J.M. Bernstein

J.M. Bernstein is University Distinguished Professor of Philosophy at the New School for Social Research. Among his publications are Adorno and Disenchantment (2001) and Torture and Dignity: An Essay on Moral Injury (2015). He is now completing a work entitled Human Rights: A Marxist Defense.

Chapter 15 – Brecher

Justifying Too Much: Utilitarianism as a Moral Theory

Abstract

This chapter analyses the use and abuse of utilitarianism in "the torture debate", arguing that it might turn out to be utilitarianism's nemesis. For if we are to take utilitarianism seriously, then we must be prepared to torture the alleged terrorist's child—or anyone at all—to prevent the apparently imminent catastrophe. Furthermore, if that is unpalatable on rule-utilitarian grounds, then those also rule out torturing the alleged terrorist themselves. That this is systematically obscured by advocates of interrogational torture again suggests that the use of utilitarian arguments to defend interrogational torture exposes fundamental problems for any utilitarian position. It starts by refuting the alleged necessity of interrogational torture in “ticking bomb” cases; moves on to show that utilitarianism cannot accommodate non-utilitarian limits when inconvenient; and to explore the implications of that issue; and ends by suggesting that utilitarianism might thus not be a moral theory at all.

Bob Brecher

Bob Brecher is Professor of Moral Philosophy at the University of Brighton, UK, and Director of its Centre for Applied Philosophy, Politics & Ethics. He is the author of Torture and the Ticking Bomb (2007) and writes widely on torture, “terrorism”, neo-liberalism and a range of topics in both applied ethics and moral theory.

Chapter 16 – Barela

Reclaiming Bentham on Torture

Abstract

Jeremy Bentham
Unpublished manuscript on torture
Archives at University College London

Nearly two and a half centuries ago Jeremy Bentham presented a moral challenge to the absolutist view on eliminating torture in all circumstances—written in the privacy of his study and never published during his lifetime. Although three sentences of his utilitarian argument for torture have become quite well-known (often equated with the ticking bomb scenario), Bentham’s view would be greatly served by a more nuanced understanding of his sometimes contradictory opinions, the development of his thought, and the context of his writing. This chapter aims to provide a fuller view. We will find four main points: 1) Bentham was strikingly indecisive about the effectiveness of interrogational torture; 2) he keenly touched on the same questions that drive contemporary scientific research; 3) he worried that torture could open the door to tyranny; and 4) he struggled over the “certainty” that could trigger a government’s use of severe pain and suffering.

Steven J. Barela

Steven J. Barela is a Research and Teaching Fellow at the University of Geneva in the Global Studies Institute and a member of the Law Faculty. In addition to his Ph.D. in Law, he holds three master’s degrees: M.A. degrees in Latin American Studies and International Studies, along with an LL.M. in International Humanitarian Law and Human Rights. He published a monograph on counterterrorism with Routledge in 2014, an edited volume on armed drones with Ashgate in 2015, and is the author of numerous articles, book chapters and blogs on national security issues.