On the Ethics of Torture

5 Legalizing Torture?

5 Legalizing Torture? There are quite a few scholars who take the position that, while torture is morally justifiable under certain conditions, it should still remain legally prohibited .1 Rainer Trapp, however, thinks that this is a “dishonest compromise,”2 indeed, an “institutionalized hypocrisy.”3 The following form such an open hypocrisy could take, which is often recommended, strikes me as particularly unacceptable: that the officers follow their moral conscience, for instance in the ticking bomb case, and then—like Mr. Daschner—face the legal consequences of a life-saving interrogation [in the form of torture] that can only be conducted illegally. This would mean nothing more than to wash the legislative hands in the innocence of an ethics of conviction [sich die gesetzgeberischen Hände in gesinnungsethischer Unschuld zu waschen] and to impose the costs for this on the officers at the executive front or, in case these officers prefer their own career, even onto the crime victims who forfeit their lives.4 This point is well taken. However, Trapp is wrong in thinking that the position “moral legitimacy yes, legality no” involves an “evaluative inconsistency ” (Wertungsinkonsistenz).5 He claims: First, a person (= x) who regards an act a in [a certain situation] S as permissible or even as required for moral reasons and who therefore wants to see a executed in S cannot wish, already for reasons of justice, that the person i executing a be legally punished for this act. But this is just what this i—as x knows also—would have to accept if a were legally absolutely prohibited, and if i’s transgression of this prohibition would result in a legally determined sanction. . . . But also for rational reasons he cannot wish this. For a person who wants to see an action a executed by i in S because 69 70 On the Ethics of Torture of its good consequences must have an interest in there being as few reasons as possible for i not to execute a in S.6 I agree with Trapp that a person who tortures another person in necessary and proportionate self-defense would be wronged if he were punished. An injustice would be done to him. However, as already made clear, I am a threshold deontologist. Perhaps Trapp would be right if one accepted his avowedly consequentialist framework (given the peculiarities of his account, this is not even clear), but I don’t—and most other philosophers will not either. In the light of threshold deontology, however, it is clear that there can be morally justified rights violations and hence morally justified injustices, and there is nothing inconsistent about allowing such things. As regards Trapp’s second claim, he actually contradicts himself in a footnote where he writes that while he thinks that stealing medicine in an emergency situation to save another person’s life is morally permissible, his position “naturally” does not rule out that the person whose property has been stolen can sue the thief under civil law.7 There is nothing “natural” about that. After all, the prospect of a civil law suit is a reason for not stealing the medicine; yet Trapp does not want to remove this reason. Trapp is simply mistaken in claiming that it is irrational to want a person to do something and to simultaneously want that certain reasons that might keep her from doing it are kept in place. If, for example, the legalization of torture had not only the good effect that a police officer who tortured in just self-defense would not be punished, but also the bad effect that the amount of unjust torture would explode, then this latter bad effect might by far outweigh the good effect of the legalization of torture. This is, of course, the ticking-social-bomb argument applied to the issue of the moral permissibility (or prudential advisability) of legalizing torture (instead of to the issue of the moral permissibility of torture itself). If this ticking-social-bomb argument were correct, then wishing for torture to remain illegal and wishing for police officers (or others) to break the law in certain cases would be entirely rational. There is, contrary to what Trapp claims, nothing inconsistent about such a line of reasoning. Yet not being inconsistent is not enough for being right: the tickingsocial -bomb argument is not only a sheer fantasy if applied to the moral permissibility of acts of torture (as we have seen above); it is also a sheer fantasy...