2.1.2: The philosophy of torture

Throughout history, torture has often been used to obtain information from a person. An important question is whether torture is even an adequate method to acquire useful information. Already in Aristotle’s Rhetoric, we find a philosophical evaluation on the different positions that persons take in regard to evidence acquired through torture:

“Torture is a kind of evidence, which appears trustworthy, because a sort of compulsion is attached to it. Nor is it difficult to see what may be said concerning it, and by what arguments if it in our favor, we can exaggerate its importance by asserting that it is the only true kind of evidence; but if it is against us and in favour of our opponent, we can destroy its value by telling the truth about all kinds of torture generally; for those under compulsion are as likely to give false evidence as true, some being ready to endure everything rather than tell the truth, which others are equally ready to make false charges against others, in the hope of being sooner released from torture.” (Aristotle, 2014:163).

Although Aristotle affirms that torture involves extreme physical pain inflicted to a non-consenting and defenseless person, he does not argue that torture is morally wrong. He only argues that the truthfulness of evidence obtained through torture is open for debate.

One of the first philosophers who argued that torture was a judicial vice, is Cesare Beccaria (1738-1794). Beccaria argued that torture was a violation of the principle that no one should be punished until proven guilty in court of law. Furthermore, Beccaria thought that torture was an ineffective punitive method that prevented the criminal from learning from his or her mistakes. Torture is not based on the principle of justice, but motivated by vengeance. Judicial punishment should never be based on emotions or sentiments, but should solely be based on the prevention of crime:

“The purpose of punishment, then, is nothing other than to dissuade the criminal from doing fresh harm. Punishments and the method of inflicting them should be chosen that, mindful of the proportion between crime and punishment, will make the most effective and lasting impression on men’s minds and inflict the least torment on the body of the criminal” (Beccaria, 1964:53).

Torture is particularly morally revolting because it is aimed at a non-consenting, defenseless person. Torture practices presuppose that the torturer has control over the victim’s body and degrades the victim to a mere object. The controlling relation and the power that the torturer has on the victim, is in the philosophy of Hegel explained as a struggle between rights and recognition.

Hegel used law extensively both as an illustration of the dialectical process of history as well as the necessary step in the unfolding of the ethical life (Sittlichkeit). From a Hegelian perspective, torture is grounded in the struggle of recognition and must be seen as a wrong in which the other is no longer or not yet regarded as counting as an end in itself. Hegel argues in particular that if the state uses torture as a judicial method, it fails to recognize the criminal as an end in himself and hinders the criminal’s ability to achieve full self-consciousness within his community (Hegel, 1983:118; Woodson Hogan, 2013).

Most philosophers argue that torture is a morally questionable action that destroys human freedom, prevents the criminal from becoming a better person and treats humans as means and not as ends. The idea that a human should never be treated as a mere end is formulated by Immanuel Kant in the Groundwork of the Metaphysic of Morals. Kant identified the supreme principle, the categorical imperative, in which rational agency provides its own means. In other words: the categorical imperative is a moral law that is derived from pure reason and is universally valid. Based on the categorical imperative that one should act only according to the maxim of which one can make a universal law of the rule. The categorical imperative thus argues that we should not lie, because we don’t want “You should lie” to be a universal moral law. Kant identified a second formulation of the categorical imperative for humanity, “Act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end” (Kant, 1949:433).

Kant would argue the inherent immorality of torture, regardless of the circumstances or motives. Torture is always wrong, because it contradicts the second formulation of humanity and violates the categorical imperative. We will all agree that the use of torture should not be a universal moral law.

In philosophical terms, we call this approach to morality deontological ethics; in which the action in itself is assessed as wrong or right, regardless of the consequences of it. There are also some philosophers who argue that an action should be assessed on whether the action produces the right kinds of overall consequences. Those who argue that torture is morally wrong but is justified when it is used to prevent even greater crime, all adhere to some account of consequentialism (Stanford Encyclopedia for Philosophy).

One of the most well-known accounts of consequentialism is Jeremy Bentham’s Utilitarianism. Bentham’s basic idea is that we should maximize utility, which is often defined in terms of universal well-being. Based on this line of reasoning, Bentham’s raises the question whether torturing a criminal is justified when it prevents the killing hundreds of innocent people:

“For the purpose of rescuing from torture these hundreds innocents, should any scruple be made of applying equal or superior torture, to extract the requisite information from the mouth of one criminal, who having it in his power to make known the place where at this time the enormity was practicing or about to be practiced, should refuse do so?” (Bentham, 1804:6).

Bentham’s argument is very close to what nowadays is known as the “ticking time bomb” scenario. Most persons who argue that torture is justified in extreme circumstances rely on some version of the “ticking time bomb” scenario and argue that torture is sometimes justified when it is used for interrogational purposes.