Friday, June 18, 2004

On the subject of torture, I see that Steve Sturm remains adamant that some lives are worth more than others and that torture is therefore justified. I'm really rather tired of this debate, and don't imagine that it holds much interest to readers, largely because I doubt whether Steve has any adherents to speak of. Indeed, the only links that I could find to his blog seemed uniformly disapproving. Still, Steve, I don't think that you should have the satisfaction of thinking that you've had the last word or even that you might be right.

Steve asks: would I torture someone if the life of someone close to me was at stake? This rather misses the point. In appropriate circumstances, we might all be tempted to do things that are neither legal or moral. Furthermore, even if I did torture someone to save the life of, say, a family member, I would have to accept that at the end of the day I would face a charge of assault in court, and would have to justify my actions before the law. And the criminal law, as I have argued, assumes that lives are of equal value and that torture can therefore only be justified in very extreme circumstances, if at all. Bleating to the judge about what he would do if his wife was endangered wouldn't get me very far. Of course, it could be that Steve wants to rework the criminal law entirely but then it is he who has a lot of explaining to do, not me.

Steve also analogises torture to the death penalty, saying that it's difficult to disapprove of capital punishment if someone close to you has been killed. Actually, Steve, I'm glad you brought the death penalty up. Let's assume, for the sake of the argument, that the death penalty is administered fairly and consistently in the USA. If so, that has only been achieved through an elaborate system of checks and balances. These recognise that the death penalty is an extreme form of punishment and that, if we are to impose it, we should do our best to ensure that we do not do so arbitrarily. The same, I think, applies in the case of torture. If governments are to use it, as you suggest, then I think it follows that they should do all they can to ensure that it is applied fairly and consistently. The problem is that it's almost impossible to see how this would be achieved in the only circumstances in which torture might theoretically be justified (ie when a bomb is ticking). Invariably, unlike the death penalty -- where one has the luxury of a lengthy trial and appeal process -- these would be spur of the moment decisions that would be almost impossible to regulate, except after the fact which would be highly problematic.

Finally, Steve raises a more slippery point. If all lives are of equal value, why not intervene, and sacrifice one's own nationals, whenever lives are at risk elsewhere? In my original post, I emphasised that the starting-point for discussions about torture should be that all individuals -- regardless of nationality -- share certain basic rights, such as the rights to life and bodily integrity. These, I argued, should form the basis of our discussions about when torture is justified. But what is the content of these rights? Primarily, they are negative guarantees. They prevent government from doing certain things; they do not require it to do anything. The US Constitution, for instance, effectively contains a right to life under the due process clause ("no one may be deprived of life, liberty or property without due process of law"). This, note, is a right vested in all US citizens, equally. But it isn't a positive duty. It doesn't, for example, require the US government to implement health-care programs ensuring that no-one dies unnecessarily of ill-health. Instead, it requires that, if the government does impinge upon the lives of its citizens, it should do so in a manner that recognises their equal worth. It prohibits, in other words, rather than mandates.

So, no, the recognition that people have rights to life and bodily integrity doesn't require states to get involved in humanitarian catastrophes abroad (any more that it requires the US government to pay for the health-care expenses of its citizens). We might, of course, argue about whether there is a moral obligation to do so but, if and when there is, it doesn't flow from rights such as the right to life. What rights such as this require is that, when states do get involved -- when they do touch our lives -- they should act on the basis that all lives are equally deserving of respect. It is in that sense that lives have equal value, and it is in that sense that torture is problematic.

And that, I hope, is my final word on this subject.


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