On the Ethics of Torture

2 The Moral Justification of Torture

2 The Moral Justification of Torture In this chapter I will discuss the self-defense justification of torture (where the term “self-defense,” as is usual in legal parlance, also comprises other-defense), the justification from the culpability for creating a forced-choice situation, the necessity justification, and the utilitarian justification. However, I only endorse the first three. The latter one I only discuss in order to counter certain claims that have recently been made to the effect that torture cannot be justified in the real world by utilitarian considerations. It most definitely can. I will also emphasize that the first justification (as well as the second, incidentally) is purely deontological and entirely compatible with rights absolutism. 2.1 The Argument from Self-defense 2.1.1 What Is Self-defense? People have a right to defend themselves or others against wrongful aggression, in particular if the aggression is life-threatening. Here I would like to begin with a look at how German law (which is the law I am most familiar with) treats self-defense, in the course of which I will also draw some comparisons with British law and U.S. statutes before coming to a moral assessment. Section 32 of the German penal code states (my translation): (1) Whosoever commits an act that is required (geboten) for selfdefense (Notwehr) does not act against the law. (2) Self-defense is the defense necessary to avert a present (gegenw ärtig) unlawful attack on oneself or others. A few comments are in order.1 First, the usual translation of the German term “Notwehr” is “self-defense.” But the literal translation would actually be “emergency defense”—thus, there is no reference to any self. The statute 11 12 On the Ethics of Torture applies as straightforwardly to self- as to other-defense. (Incidentally, U.S. and British “self”-defense statutes or common laws also comprise other-defense, in spite of the perhaps misleading term “self-defense.”) Second, while the necessity requirement is supposed to prevent excessive violence (=violence that clearly goes beyond the amount of violence of equally promising alternative means that have not yet been tried), it is not intended to guarantee minimal force. In other words, the actual judicial interpretation prefers to err on the safe side—that is, it favors the defender, not the attacker. While the general idea is that the defender should select among equally effective means the one that harms the attacker the least, German courts have made it abundantly clear that the defender is not obliged to use less dangerous means of defense if the effectiveness of those means is doubtful. In addition, a person defending with milder means may escalate his or her defense if these milder means have proven unsuccessful. And of course, if no effective means are available, the defender is allowed to take his or her chances. A rape victim is not required to abstain from slapping the rapist merely because it is highly unlikely that this will have any effect. And although air rifles will hardly stop an aggressor (although it might slightly hurt him), I am completely within my rights to use them. Indeed, police would not prosecute a person according to the following logic: “Well, Herr Fritze, blasting the aggressor away with your shotgun was of course an effective means of self-defense, but you should not have first used the air rifle. There was practically no probability of success. So you are off the hook for the shotgun, but we are afraid that for using the air rifle we have to prosecute you for battery.” It is also important for the interpretation of the “necessity” requirement that German law does not require one to retreat from the aggressor if one could safely do so. A basic German principle of law is Das Recht muß dem Unrecht nicht weichen (roughly: law/justice does not have to give way to the unlawful/ unjust). This principle does not exist in U.S. law. However, it seems that there is no duty in U.S. laws to retreat from an aggressor threatening deadly force before defending with deadly force. As regards the UK, common law once contained a duty to retreat. This, however, is no longer the case.2 Thus, the “necessity” requirement is in fact very lenient, in the United States and the UK as well; and rightly so. Although the self-defense statute gives some protection (namely, against excessive violence) to the aggressor, its main task is to...