— The recent publication of the Torture Memos and of the International Red Cross report on the treatment of high-level detainees in the aftermath of 9/11 has returned to national prominence the discussion of the morality of torture and “enhanced interrogation” techniques. It is important to be clear,
— Torture is perhaps the most unequivocally banned practice in the world today. Yet recent photographs from Abu Ghraib substantiated claims that the United States and some of its allies are using methods of questioning relating to the war on terrorism that could be described as torture or, at the very least, as inhuman and degrading. In terror's wake, the use of such methods, at least under some conditions, has gained some prominent defenders, notably from within the White House. In this revised edition, Torture: A Collection brings together leading lawyers, political theorists, social scientists, and public intellectuals to debate the advisability of maintaining the absolute ban and to reflect on what it says about our societies if we do--or do not--adhere to it in all circumstances. New to this edition are essays by Charles Krauthammer and Andrew Sullivan on the adoption in 2005 of the McCain Amendment, which explicitly bars the use of torture and other cruel methods of interrogation.
— In this unflinching look at the experience of suffering and one of its greatest manifestations—torture—J. M. Bernstein critiques the repressions of traditional moral theory, showing that our morals are not immutable ideals but fragile constructions that depend on our experience of suffering itself. Morals, Bernstein argues, not only guide our conduct but also express the depth of mutual dependence that we share as vulnerable and injurable individuals. Beginning with the attempts to abolish torture in the eighteenth century, and then sensitively examining what is suffered in torture and related transgressions, such as rape, Bernstein elaborates a powerful new conception of moral injury. Crucially, he shows, moral injury always involves an injury to the status of an individual as a person—it is a violent assault against his or her dignity. Elaborating on this critical element of moral injury, he demonstrates that the mutual recognitions of trust form the invisible substance of our moral lives, that dignity is a fragile social possession, and that the perspective of ourselves as potential victims is an ineliminable feature of everyday moral experience.
— This text is about the wrongness of torture and the nature of morality. It discusses multiple types of torture with great philosophical acuity and it seeks to explain why interrogational torture and other types of torture are always and everywhere morally wrong. At the same time, it rigorously plumbs the general structure of morality and the intricacies of moral conflicts and it probes some of the chief grounds for the moral illegitimacy of various modes of conduct. It sophisticatedly defends a deontological conception of morality against some subtle critiques that have been mounted during the past few decades by proponents of consequentialism. The book tackles a concrete moral problem: a problem that has been heatedly debated during recent years in the governmental and military institutions of many countries as well as in academic circles. At the same time it tackles some very abstract issues in moral and political philosophy. Moreover, as becomes apparent at numerous junctures, the abstract ruminations and the concrete prescriptions are closely connected: Kramer's recommendations concerning the legal consequences of the perpetration of torture by public officials or private individuals, for example, are based squarely on his more abstract accounts of the nature of torture and the nature of morality. His philosophical reflections on the structure of morality are the vital background for his approach to torture, and his approach to torture is a natural outgrowth of those philosophical reflections.
— Stanford Encyclopedia of Philosophy Menu Browse Table of Contents What's New Random Entry Chronological Archives About Editorial Information About the SEP Editorial Board How to Cite the SEP Special Characters Advanced Tools Contact Support SEP Support the SEP PDFs for SEP Friends Make a Donation SEPIA for Libraries Entry Navigation Entry Contents Bibliography Academic Tools Friends PDF Preview Author and Citation Info Back to Top The Problem of Dirty Hands First published Wed Apr 29, 2009; substantive revision Mon Jul 2, 2018 Should political leaders violate the deepest constraints of morality in order to achieve great goods or avoid disasters for their communities? This question poses what has become known amongst philosophers as the problem of dirty hands. There are many different strands to the philosophical debate about this topic, and they echo many of the complexities in more popular thinking about politics and morality. All, however, involve the idea that correct political action must sometimes conflict with profound moral norms. This entry seeks to unravel these strands and clarify the central normative issues about politics that the cry of ‘dirty hands’ evokes. Beginning with an illustrative passage from a renowned 19th century English novel, the essay traces the dirty hands tradition back to Machiavelli, though its present vogue is owed mostly to the writings of the distinguished American political theorist, Michael Walzer. Walzer’s views are explored in the light of earlier theorists such as Machiavelli and Max Weber and certain vacillations in his intellectual posture are briefly discussed. This leads to the posing of five issues with which the entry is principally concerned. First, is the dirty hands problem simply confused and its formulation the merest contradiction? Second, does the overriding of moral constraints take place within morality or somehow beyond it? Third, can the cry of dirty hands be restricted wholly or principally to politics or does it speak equally to other areas of life, and, where politics is concerned, do only the principal agents get dirty hands or do their citizens share in the taint? This is the problem of scope. Fourth, how are the circumstances that call for dirty hands best described? Fifth, the dirty hands problem has affinities with the problem raised by moral dilemmas, but the question is: should those similarities be allowed to obscure significant differences? In the course of addressing these issues, the dirty hands challenge is also distinguished from that of political realism, with which it has some affinities, and the resort to role morality to render dirty hands coherent is discussed, as is the issue of the desirability of shaming or punishing dirty hands agents. The relevance of “threshold deontology” is explored, and it is suggested that much of the point of invoking dirty hands comes from an ambiguous attitude to absolute moral prohibitions, combining a rejection of them with a certain wistful attachment to their flavour. 1. Introduction 2. Shifting Interpretations 3. A Conceptual Confusion? 4. A Conflict Within Morality? 5. The Scope of Dirty Hands and Some Significant Distinctions 6. The Dirty Hands of Citizens 7. The Issue of Absolutism Bibliography Academic Tools Other Internet Resources Related Entries 1. Introduction Anthony Trollope’s novel, The Way We Live Now, is a biting critique of the corruption of late Victorian morals. One of its central characters, the shallow Lady Carbury, at one point voices her conviction that the praiseworthy deeds of the powerful escape the normal categories of morality. Commenting on the character of the novel’s dominant figure, the grand swindler Melmotte, she says to her journalist friend Mr. Booker: “If a thing can be made great and beneficent, a boon to humanity, simply by creating a belief in it, does not a man become a benefactor to his race by creating that belief?” “At the expense of veracity?” suggested Mr. Booker. “At the expense of anything?” rejoined Lady Carbury with energy. “One cannot measure such men by the ordinary rule.” “You would do evil to produce good?” asked Mr. Booker. “I do not call it doing evil….You tell me this man may perhaps ruin hundreds, but then again he may create a new world in which millions will be rich and happy.” “You are an excellent casuist, Lady Carbury.” “I am an enthusiastic lover of beneficent audacity,” said Lady Carbury… Contemporary moral and political philosophy suffers from no lack of enthusiastic admirers of “beneficent audacity”. At one end of a spectrum are those consequentialists who are so captivated by the prospect of the new world of “happy millions” that they think it obscurantist to object to any evil means needed to achieve it—indeed, they agree with Lady Carbury in not calling such means evil. At the other end of that spectrum, stand the rather more reluctant advocates of “dirty hands” who think that some very good ends, such as the aversion of catastrophe, require the doing of evil, but unlike Lady Carbury, they insist on calling it evil, though necessary evil. And like Lady Carbury, they rather think that the agents who so dirty their hands cannot be measured “by the ordinary rule.” Even so, like W.H. Auden in his poem “Spain”, they think such agents doing what current circumstances make “necessary” should accept the guilt that their immoral actions earn. As Auden puts it: “To-day the deliberate increase in the chances of death, The conscious acceptance of guilt in the necessary murder.” The dirty hands tradition dates back to Machiavelli, though its present currency is largely owed to the American political theorist Michael Walzer who gave it the title of dirty hands in an influential article “Political Action: the Problem of Dirty Hands”, in which he coined the term “dirty hands” adapting it from Jean Paul Sartre’s play of the same name (Walzer 1973). Later, Walzer used the idea, though not the term, in his book Just and Unjust Wars (1977) in which he argued that an appeal to “supreme emergency” could not only explain but justify the Allied terror bombing of German cities in the early stages of World War II (Walzer 1977a, 267–68). For these early stages, roughly (it seems, for Walzer gives no date) up to the end of 1941, the deliberate massacre of thousands of German non-combatants was required by supreme emergency, even though it was gravely immoral. The prospect and likelihood of a Nazi victory were so dire for the lives and communal values of those facing defeat that the price of severe immorality was worth paying. In the subsequent conduct of the war, Walzer argued, the city bombings were simply immoral (as were the city bombings of Japan, including the atomic attacks on Hiroshima and Nagasaki) and could not be justified by supreme emergency. When Walzer later revisited the topic of supreme emergency, he made it clear that it was a case of dirty hands, indeed he seems to have come to the view that only something like the circumstances of supreme emergency could provide a dirty hands justification. So he says, in the later discussion of supreme emergency, that the doctrine of dirty hands is that “according to which political and military leaders may sometimes find themselves in situations where they cannot avoid acting immorally, even when that means deliberately killing the innocent.” And again: “…dirty hands aren’t permissible (or necessary) when anything less than the ongoingness of the community is at stake, or when the danger that we face is anything less than communal death” (Walzer 2004a, 46). 2. Shifting Interpretations The first thing to notice about this is that the identification of supreme emergency and dirty hands represents a dramatic shift from Walzer’s view in his original article, and this shift reflects a significant ambiguity in the dirty hands tradition. Walzer’s accounts of supreme emergency vary somewhat in the treatments in Just and Unjust Wars and in the later article, “Emergency Ethics” (and we shall attend to this later) but in both accounts the necessity to override deep moral constraints only arises in conditions approaching catastrophe. In the original 1973 paper, however, the trigger for dirty hands is nowhere near as extreme. One example there, with intriguing contemporary relevance, concerned a political leader’s need to torture a suspected terrorist in the hope of preventing the likely killing of hundreds of innocent people. This falls well short of the criterion of supreme emergency in Walzer’s later writings where the trigger is the devastation of whole peoples and/or their ways of life. Moreover, Walzer’s other example in the original paper was of a good democratic politician bribing a corrupt ward boss to deliver him votes with the promise of improperly delivered school construction contracts. Here not only is the moral violation much less profound than in the former case, but the emergency could hardly be considered “supreme” in any sense even if we allow that the votes are needed to win an important election and that the politician is genuinely motivated to do good when elected. In Walzer’s initial treatment, there is also some ambiguity in the use of the term “dirty hands” since he sometimes uses it for any conspicuous immorality as well as the more interesting and technical sense we are concerned with. So he says “It is easy to get one’s hands dirty in politics and it is often right to do so” (Walzer 1973, 174). The first clause seems to point to the widespread temptation to resort to immorality where the second indicates that it isn’t always right to do so, hence demarcating a positive normative sense of “dirty” from a merely descriptive sense. The use of “often” shows the more concessive attitude to the scope of dirty hands in contrast to Walzer’s later view. Earlier writers concerned with the need for politicians to dirty their hands with immoral behaviour show some of this vacillation, sometimes stressing the extreme stakes that are involved, but more often appearing to view the political process generally as above morality, or at least operating with a different morality. (“One cannot measure such men by the ordinary rule”). John M. Parrish in an interesting and far-ranging book (Parrish, 2007) shows that there are elements of the concern about the generally challenging nature of politics for morality as early as Plato’s Republic. Parrish’s understanding, however, of what constitutes dirty hands is often so broad as to obscure some of the distinctions, ambiguities and problems arising from current philosophical discussions. to be fair, he is interested in charting a sort of pre-history to the contemporary debate, and admits that “the problem may have changed over time” so that there is “a succession of dirty hands problems” (Parrish, p. 18). Even so, some of the apparently morally troubling examples he discusses from ancient intellectual sources have none of the marks of the contemporary problem. Augustine’s insistence, for example, that even a justly waged war is morally regrettable is accompanied by the untroubled argument that the warrior whose cause and intention is just does not sin at all (i.e., violate any moral obligation) in killing his enemy. Parrish’ emphasis on the idea that political life is pervasively morally problematic, however, does find echoes in early modern treatments that foreshadow the contemporary dirty hands discussion. One such influential treatment is that of Machiavelli. So Machiavelli thinks that the ordinary processes of politics require that the Prince “must learn how not to be good”, though he should maintain the appearance of virtue and indeed behave virtuously when the cost is low (Machiavelli 1513, 52). Max Weber stresses the way that regard for consequences must dominate the thinking of the politician as contrasted with ordinary or religiously inspired ethics. This contrast lies behind the opposition Weber discerns in “Politics as Vocation” between “an ethic of responsibility” and “an ethic of ultimate ends”. Although the terms in which Weber frames the contrast tend to confuse rather than clarify the issues, it is probable that one thing he has in mind for the “ultimate ends” side of the conflict is an ethic involving absolute prohibitions; he sees these as being in tension with an outlook geared to counting consequences. As Weber puts it: “there is an abysmal contrast between conduct that follows the maxim of an ethic of ultimate ends-that is, in religious terms, ‘the Christian does rightly and leaves the results with the Lord’-and conduct that follows the maxim of an ethic of responsibility, in which case one has to give an account of the foreseeable results of one’s action” (Weber 1919, 120). The starkness of this contrast is one source of confusion since, as we shall see later, absolutists are not totally indifferent to consequences — not all their ethic consists of absolute prohibitions-and non-absolutists need not be obsessed only with consequences. But Weber is adamant that it is impossible in politics to adhere generally to any absolutist ethic of ultimate ends, largely because of what he sees as the central role of violence in politics. In spite of Walzer citing him approvingly (up to a point) in his original article, Weber does not seem to hold anything like Walzer’s mature view. He does not think that an ethic of ultimate ends suffices most of the time, but gives way in conditions of supreme emergency; rather his view appears to be that the ultimate ends ethic is quite generally inadequate to politics. In fact, Weber’s belief that violence is central to the operation of politics is exaggerated, though understandable in the circumstances in which he wrote, but if it were true it might give his position more affinity with Walzer’s idea of supreme emergency. The difference would remain that, although violence may well be a factor in establishing supreme emergency, Walzer’s mature understanding of supreme emergency requires more than simply incursions of violence. This ambiguity about the extent of the need for dirty hands is reflected in much of the literature on the topic. Numerous writers have followed early Walzer (and some elements in both Machiavelli’s and Weber’s treatment of political morality) in regarding politics as a zone in which, to quote Neil Levy, “dirty actions are part and parcel of ordinary political life”. Levy adds: “Politicians must make deals, compromise with interests they abhor, distribute favours and neglect relationships” (Levy 2007, 52–3, endnote 26). A number of these things are no doubt regrettable or distasteful in varying degrees, but whether they are immoral depends on what the deals are, what the favours involve, how deep the compromise runs, and how damaging the neglect is (and to what sort of relationship). Much of what various writers regard as the need for dirty hands in politics is dubiously an issue of immorality at all. In order to maintain power and get important work done, a politician may have to appoint a member of a party in coalition with his own to an important Ministry ahead of a trusted colleague in his own party who has better credentials for the job. This is disappointing and painful to him and his colleague and clearly less than ideal (even though the appointee is, we may suppose, competent enough) but I do not think the act can be seen as immoral. To call it morally disagreeable is to signal the fact that certain valuable relations and ends are put under strain by it, but it is clearly not is the same league as torture, murder, or gross deceit. Bernard Williams does indeed distinguish levels of gravity in the sinning required of politicians in his exploration of the scope of dirty hands, but he also suggests that the politician’s necessary immoralities are very common and distinctive. He distinguishes between the morally “disagreeable or distasteful” and the morally criminal, the latter being subsumed under a broad category of what he calls “violence” (Williams 1978, 71). Although Williams allows that some political actions that are popularly believed to be morally dubious, may well be morally acceptable when circumstances are properly understood, he casts a pretty wide net for the morally disagreeable. It involves such things as “lying, or at least concealment and the making of misleading statements; breaking promises; special pleading; temporary coalition with the distasteful; sacrifice of the interests of worthy persons to those of unworthy persons; and (at least if in a sufficiently important position) coercion up to blackmail” (Williams 1978, 59). Yet it is unlikely that all of these, as so generally described, are morally wrong in all circumstances. True, some philosophers have held as much for some of these—Augustine, Aquinas and Kant for lying, and Kant for promising—but surely lying is acceptable in extreme circumstances such as the need to protect an innocent person from a murderer, and even coercion (depending on the definition) isn’t always morally wrong, witness the coercive detention of people reasonably suspected of contagious disease that they are unaware of. It seems that most, if not all the things Williams mentions are in the category “normally morally wrong but morally permissible in certain circumstances”. Even blackmail might be in this category since blackmailing a vicious criminal in order to secure the freedom of his victim might (perhaps depending on the kind of blackmail) be morally permissible. Notions like regret or remorse are sometimes invoked to show that what had to be done was nonetheless immoral, but apart from the fact that an act such as the blackmail of a vicious criminal need not even be regrettable, there are many things one can rightly regret having to do that are not immoral, for example, punishing a child by withdrawing privileges. Remorse strikes a stronger, more moralised note, but for that very reason one should be careful not to confuse it with various feelings of discomfort, regret or sorrow for having to do certain things. Further investigation of the nature and appropriate conditions for remorse is interesting and difficult, but beyond the scope of this discussion, and its role as a criterion of dirty hands seems at best inconclusive. The idea that dirty hands (in contrast to sheer bad behaviour and corrupt activity) are commonplace in politics is highly dubious, but just how extensive the reach of this phenomenon is in politics is difficult to determine, and would be best considered on a case by case, or perhaps category by category, fashion. Clearly, the most obvious, and I think the most interesting category is that described by Williams with the term “violence” (though that has the contentious, and I think unfortunate implication that all violence is immoral). This covers the acts that Walzer’s later argument seeks to capture with his term “supreme emergency”. His terminology and his later practice make the scope of dirty hands pretty restricted, perhaps more so than Williams intended, but I will follow his example and focus on really grave injustices like murder, torture, rape or slavery that are said to be warranted in conditions of extreme emergency. First, however, it is worth noting that enthusiasm to detect the sway of dirty hands can lead to misdescription of some complex, disturbing moral situations. An interesting example of this has been explored by Jennifer Rubenstein in connection with problems facing International NGOs providing aid in emergency situations such as the refugee camps in the Congo. INGO agents have found that their provision of food and medicine is often exploited by warring factions within refugee camps and elsewhere (see also some of Fiona Terry’s discussion and examples in Terry 2002). This confronts them with often agonising decisions about whether to cease aid and leave the areas of distress because of the harm this exploitation generates, including continuation of violent conflict. If they leave they abandon suffering people, but if they stay, then they contribute unintentionally to great harms that others inflict on innocent people. Such problems are often described with the vocabulary of “dirty hands”, but, as Rubenstein argues, this description is misplaced since, for one thing, the aid agencies do not themselves intentionally do harm to avoid some great evil or achieve some great good. Rubenstein proposes a category of “spattered hands” to describe these situations in order to emphasise that the soiling is contributed by the actions of others (Rubenstein 2014, Chapter 4). We cannot examine the adequacy of her new category here, but she seems right that the examples are misdescribed as dirty hands. It will be apparent from all this that the dirty hands problem needs initially some conceptual clarification; this should proceed with a view to five issues. First, there is the question whether the dirty hands scenario makes any sense at all; perhaps it is just a muddle. Second, there is the related question whether the overriding that dirty hands involve (or purport to involve) takes place within morality or somehow beyond it. Third, there is the question whether dirty hands are necessitated only or primarily by politics. Fourth, how are the circumstances that call for dirty hands best described? Fifth, there is the issue of the relation of the dirty hands problem to that of moral dilemmas and the requirements of some form of moral absolutism. 3. A Conceptual Confusion? Let us examine these in turn. The structure of dirty hands is such that it seems to involve a contradiction or paradox. The advocate of dirty hands says in effect that it is sometimes right to do what is wrong, and this seems tantamount to saying that some act is both wrong and not wrong. But the dirty hands theorist is not saying that it is wrong in some respects and right in others, nor that what would normally be wrong is here right. Rather, it is the whole act in context that is both categorically wrong and not wrong. In the dirty hands scenario we are asked to believe that doing X is morally wrong and yet it is palpably right to do it. As Walzer has more recently written of his own position, it is both “provocative and paradoxical” (Walzer 2004a, 33). Kai Nielson has urged the point even more strongly, but something of the sort has puzzled many who contemplate the problem. The category of dirty hands, as described by Walzer and some others is, according to Nielson “a conceptual confusion with unfortunate moral residues” (Nielson 2000, 140). Clearly such a dismissal would come naturally to a utilitarian or most consequentialists who would simply declare the dirty hands decision to be one in which a right act (that producing the best consequences in terms of preference satisfactions, overall increase in happiness or whatever) has been done though it may have been distressing to do it. Nielson disavows utilitarianism and calls himself a “weak consequentialist” but the upshot is much the same. He thinks that dirty hands situations confront an agent with a choice of two evils and the agent should always choose the lesser evil. No doubt, in acting against what in other circumstances is a deep moral constraint, the agent will experience distress; she will “feel guilty” but feeling guilty is not to be confused with being guilty (Nielson 2000, 140). From the opposite direction the problem can also be resolved by the denial that the hands should become dirty. An insistence on the inviolability of some moral prescriptions makes the paradox disappear as neatly as the Nielson manoeuvre. If we hold to the prohibition on intentionally killing the innocent, for example, in the face of crises like that supposed by Walzer to necessitate the bombing of German cities in the early phase of World War II, then there are no dirty hands to have. Such a position is often called absolutist. Absolutist positions have been explicitly held by many philosophers, notably Augustine, Aquinas, and Kant, and implicitly perhaps by many more. The position involves complexities that we will examine later. Both these responses agree in holding that moral reasons rightly dominate all others. Another way of defusing the strong appearance of contradiction is to hold that morality is not the only legitimate determinant of right action and that some other determinant may occasionally properly trump it. This provides one answer to the second point of clarification mentioned earlier. Dirty hands problems do not arise within morality but rather when morality clashes with some other rational necessity of a profound kind that correctly overrules it. The overruling must inspire regret, possibly remorse, but it is nonetheless clear that the overruling is in order, indeed required. Here, it is important to acknowledge that the overruling in question is not merely a description of what often happens. It is common knowledge that the demands of morality are often enough overridden by other persuasive demands, such as imperatives of self-interest, careerism, political advantage and friendship. It may even be that politics is an arena in which such overpowering happens more commonly than elsewhere, so that participation in it is fraught with moral hazard that requires an exceptional moral character to overcome. Nonetheless, the importance and challenge of the dirty hands scenario is not that hands get dirty from time to time, but that it is right that they do so. If we allow that non-moral “oughts” can sometimes trump moral ones then the dirty hands position may be restated as holding that, in circumstances of extremity, reasons of “necessity” (or whatever) defeat important moral reasons. This seems to be one plausible construal of Machiavelli when he talks of the necessity that rulers must learn how not to be good. Of course, he has the model of Christian morality in mind when he calls for its overriding and so may be understood as opposing one form of morality to another, but a good deal of his discussion can be treated as elevating “reasons of state” above morality. This is a rejection of the idea that moral reasons dominate all other reasons. It may be useful here to distinguish between dominance and comprehensiveness. Most moral theorists hold that morality is both comprehensive and dominant, that is, it relevant to all decisions and where relevant it defeats all other reasons. One could however hold that morality is comprehensive but not dominant, or dominant but not comprehensive, or indeed neither dominant nor comprehensive. Our present inquiry is concerned with the first two options. The ideas of dominance and comprehensiveness express somewhat different pictures of the status of morality, though an exalted understanding of morality often draws on both. Morality’s dominance would consist in its trumping all other considerations whenever it is relevant to them, whereas morality’s comprehensiveness consists in its being universally relevant whether it trumps other considerations or not. On the present interpretation, dirty hands theorists accept morality’s comprehensiveness (at least with respect to the domains they are concerned with) but reluctantly reject its dominance for one class of decisions. We might usefully contrast this with the position of the school of thinkers called “political realists” whose outlook has some affinity with the dirty hands theorists to the point that the two are sometimes confused. Realists are often viewed (and often present themselves) as rejecting the comprehensive relevance of morality by reference to something special about politics or international relations. So we find E.H. Carr stating as “the realist view” that “no ethical standards are applicable to relations between states…” (Carr 1962, 153). Other realists come close to this, though their views are clouded by uncertainties about morality’s provenance (as indeed are Carr’s). Arthur Schlesinger Jr., for instance, claims: “The raw material of foreign affairs is, most of the time, morally neutral or ambiguous. In consequence, for the great majority of foreign-policy transactions, moral principles cannot be decisive” (Schlesinger 1971, 73).The influential American realist, Hans Morgenthau, is anxious to separate politics from morality by maintaining “the autonomy of the political sphere.” He recognises the autonomy of other spheres such as economics, law and morality, but insists that the political realist must “subordinate these other standards to those of politics” (Morgenthau 2006, 13). Here, he echoes the position of the German conservative thinker Carl Schmitt by whom he was clearly influenced. Schmitt became embroiled with the Nazi Party in the 1930s and enjoyed (if that is the word) some fame for a time as a theoretician for the Nazi cause. These quotations all suggest the idea that politics, or some significant area of it, such as international relations, falls quite outside the provenance of morality, thus denying morality comprehensiveness, though the reference to morality’s failure to be “decisive” hints at a denial of dominance. There are many obscurities in the stance of political realism, and this is not the place to unravel them, but in spite of the ambiguities in pronouncements of the leading theorists in the school, and in spite of some continuity between their outlook on politics and that of the dirty hands theorists, it is clear that the realist’s attitude to morality usually has quite a different flavour to that of the dirty hands theorists. Part of this is captured by the difference between the denials of comprehensiveness and dominance, and this connects with the fact that when realists reject moral considerations they do so with no deep sense of regret or remorse for having done what is morally wrong. The denial of dominance preserves a certain coherence for morality since it is not, as it were, at odds with itself; it is at times and in context at odds with something else which, following both Machiavelli and Walzer, might be called “necessity”. But what is this necessity? Clearly, it is not meant to be some form of deterministic necessity, since it would have been possible for the British leadership in World War II to have rejected the policy of city bombing outright, as their declared policy prior to the war had indicated they would do, a policy that their initial bombing practices indeed respected. Yet there is a trace of this deterministic thought in the idea of supreme emergency with its implication of something that overwhelms the normal power of morality. We might recall in this connection Thomas Hobbes’s argument that moral dictates cannot apply when they would lead to self-destruction. Hobbes’s idea is that the rationality of self-preservation, which itself gives rise to morality, makes acting on morality null and void when acting on it would defy self-preservation. As Hobbes puts it: “The laws of nature oblige in foro interno; that is to say, they bind to a desire that they should take place: but in foro externo: this is to the putting of them in act, not always. For he that should be modest, and tractable, and perform all he promises, in such time, and place, where no man else should do so, should but make himself a prey to others, and procure his own certain ruin, contrary to the ground of all laws of nature, which tend to nature’s preservation” (Leviathan, Ch. XV, p. 99). Hobbes certainly does paint a totally isolated scenario for the person who would obey the moral law—“where no man else should do so”—and one might wonder whether the institution of promising could even exist in so bleakly uncooperative “time and place” as he supposes. But presumably a sufficient number of non-cooperators would serve to make one “a prey to others” and procure “certain ruin”, and it is the necessity of avoiding some such ruin that motivates the supreme emergency story, even though it is collective rather than individual ruin that lies at its heart. Hobbes’s exemption from the need to practice morality (rather than desire its operation) makes most sense on a contractarian view of morality or in connection with those moral obligations that are dependent upon agreement (even if other obligations are not). In a world in which hardly anyone kept their promises or adhered to their contracts, the sense of such commitments would dissipate and entering into what shell remained of them might be folly indeed, and very likely futile as well. But many other areas of morality are not like this, and so even where adherence to moral imperatives may be perilous in the extreme, it may not be the folly that Hobbes’s comments make it seem. One woman who survived Belsen, Hanna Levy-Haas, records in her diary a philosophical debate she had in the camp with a fellow Marxist, Professor K who argued the somewhat Hobbesian case (embellished with Marxist terminology) that morality did not apply in the camps because it was superseded by the survival imperative. She rejected his argument because it required her “simply to compromise with the enemy, to betray one’s principles, to deny spiritual values in the interests of saving one’s skin” (Levy-Haas 1982, 65). These comments indicate at the very least that the idea of “total ruin” is open to interpretations that see the abandonment or degrading of moral integrity as itself a primary ingredient in such ruin. This excursion into the world of the Leviathan nonetheless helps give some sense to the idea that the practice of morality might be suspended for a time and hence morality itself moved aside by an external necessity. It thus helps show a way that the dirty hands story might be redeemed from incoherence, even if the idea that morality should sometimes be dominated by an external necessity proves unacceptable. The dirty hands position might then be coherent but false. So Hanna Levy-Haas could understand the Professor’s argument, but found reason to reject it. 4. A Conflict Within Morality? Another route out of paradox would be to hold that the clash depicted by dirty hands theorists occurs within morality. Here, the idea might be that morality itself is not entirely coherent or self-consistent. In certain extreme circumstances, one powerful strand in morality comes into conflict with another. Even more clearly, Weber’s distinction between the ethics of ultimate ends and that of responsibility points in this direction. His idea is expressed somewhat opaquely, but he seems to be claiming that there are two strands in morality, or two types of morality, such that one may be applicable to ordinary life, but must yield to the other in matters political, especially those that involve difficult choices in a context of violence. Several passages in Walzer’s discussion tend in this direction. He holds that a morality of rights and a morality of consequences or utility co-exist in our moral outlook in such a way that although rights trump utility in normal circumstances, a “utilitarianism of extremity” rightly overrides the morality of rights in some rare circumstances. As he puts it: in a situation of supreme emergency, “a certain kind of utilitarianism reimposes itself”, this being “the utilitarianism of extremity” set against “a rights normality” (Walzer 2004a, 40). This contrast between a rights ethic (or other deontological ethic) and utilitarianism is one way of locating the clash within morality itself. Another way is by having recourse to role morality: within morality itself there are general moral principles, rules etc. and then special moral requirements dictated by significant social roles. These can come into conflict, as when the lawyer’s obligation to provide her client with the best defence and to preserve confidentiality can conflict with the demands of impartial justice. So it might be argued that the political role has obligations and rights special to it that override more general moral obligations and rights. When it comes to the immensely important role of political leadership, we “cannot measure such men by the ordinary rule” as Lady Carbury puts it. This manoeuvre has the advantage of capturing something important in the dirty hands literature (and it is also present in the realist literature), namely, the emphasis on the special moral significance of the role of political leadership. Walzer, for instance, places great weight upon “what political leaders are for.” Talking of political and military leaders, he says, “The effect of the supreme emergency arguments should be to reinforce professional ethics, and to provide an account of when it is permissible (and necessary) to get our hands dirty” (Walzer 2004a, 42). An initial problem with this sort of move is that the special duties and rights of social roles are underpinned by general moral considerations since it is only those roles that can be morally supported by quite general moral considerations that will have a role morality. We may describe the code of the Mafia thug as the morality of his role, but usually it is mores rather morality being described. Even if it is a requirement of his role that a Mafia hit-man must murder anyone who snitches to the police, this is hardly a moral imperative of any sort. And where there are genuine moral duties to a role, and they are endorsed by broader moral considerations, we do not believe that this endorsement cannot itself be overruled by other general moral obligations. The requirements of professional confidentiality, for instance, can be so overridden, as when medical confidentiality regarding a doctor-patient communication stands in the way of saving a life. The famous Tarasof case is instructive in this respect. It concerned a counsellor at the University of California at Berkeley who learned from his client that he planned to kill his ex-girl friend. The counsellor was sufficiently worried that he broke confidentiality to tell the police who investigated but took no further action. The girl friend (Tarasof) was duly murdered by the client, and a court later held that the counsellor should have gone further and notified Tarasof or her family of the danger. Other courts have been less demanding, but there is a general recognition that the professional duty of client confidentiality can be overridden by more pressing moral demands. Indeed, the structure of the role morality defence of the dirty hands story provides a curious inversion of the role morality logic since that logic requires that emergency situations allow or even demand the overturning of the role duties by the more general demands of a deeper morality. By contrast, the dirty hands scenario requires the role morality to triumph over the deeper moral outlook that gives sense to the morality of role itself. Here we find yet another paradox generated by the dirty hands category. It could only be resolved by the insistence that the political role is unique among roles since in its case its moral power somehow transcends the general morality. (Or, if the dirty hands scenario applies beyond the political, it will be one of a small set of roles that is unique.) In fact, there is a strong strand of this political exceptionism inherent in the dirty hands story. Yet how could the political role have such a status? We might expect such an exaltation of the role from one such as
— Stanford Encyclopedia of Philosophy Menu Browse Table of Contents What's New Random Entry Chronological Archives About Editorial Information About the SEP Editorial Board How to Cite the SEP Special Characters Advanced Tools Contact Support SEP Support the SEP PDFs for SEP Friends Make a Donation SEPIA for Libraries Entry Navigation Entry Contents Bibliography Academic Tools Friends PDF Preview Author and Citation Info Back to Top Torture First published Tue Feb 7, 2006; substantive revision Fri May 5, 2017 This entry is in four parts. The first part concerns the definition of torture and addresses the question, what is torture? The second part concerns the defining features of torture from a moral standpoint and addresses the question, what makes torture inherently morally wrong? For instance, it is generally held that torture is defined in part as the deliberate infliction of extreme suffering and that – by virtue of this defining feature – torture is morally wrong. Note that even actions or practices that are inherently morally wrong might be morally justified in extreme circumstances. Or to put things another way, performing an evil action might be morally justified if refraining from performing it constituted a much greater evil. Indeed, the third part of the entry concerns just this possibility: the possibility that notwithstanding its inherent moral wrongness, torture might, nevertheless, in extreme emergencies be morally justified. In short, the third part addresses the question, is torture morally justified in extreme emergencies? The last part of the entry concerns the legality, as opposed to the morality, of torture and addresses the question,should torture ever be legalised or otherwise institutionalised? In relation to the definition of torture, there are now a number of contemporary philosophical accounts on offer, notably those of Twining & Paskins (1978), Davis (2005), Miller (2005), Sussman (2005), Gross (2009) and Kamm (2011). Moreover, there are numerous detailed discussions concerning the inherent moral wrongness of torture, all of which focus on the extreme suffering inflicted (Bentham 1804; Shue 1978; Miller 2005 and 2009; Matthews 2008; Brecher 2008; Kershnar 2011), but some of which put greater emphasis on torture as a violation of autonomy (Sussman 2005; Miller 2005). Useful collections of essays on this and related topics are Levinson 2004, Greenberg et al. 2005, Roth & Worden 2005, Rodin 2007, Allhoff 2008, Clucas et al. 2009, Luban 2014 and Shue 2016. The contemporary debate concerning the moral justifiability of torture in extreme emergencies principally concerns the torture of terrorists and is dominated by two groups. There are those who argue in the affirmative and point to so-called ticking bomb scenarios to support their case. These theorists often adhere to some form of consequentialism, such as utilitarianism. They include Allhoff (2003, 2012), and Bagaric and Clarke (2007), albeit the classic utilitarian justification remains that of Bentham (1804). (See also Twining & Twining 1973.) Then there are those who argue in the negative and stress not only the inherent immorality of torture but also contest that it ever has good effects in practice (Davis 2005; Brecher 2008; Matthews 2008). For instance, they typically claim that torture does not work, since those who are tortured tell their torturers whatever they want to hear. The classic denunciation of the legalisation of torture is that of Cesare Beccaria 1764. In the contemporary debate concerning the legalisation of torture many theorists of a liberal persuasion have stressed the incompatibility of torture with the values underpinning liberal institutions (Luban 2005; Waldron 2005, 2010; Shue 2016). Moreover, in this contemporary debate, the protagonists have tended to assume that if torture is morally justified in some extreme emergencies then it ought to be legalised. Thus Alan Dershowitz claims that torture is morally justified in some extreme emergencies and, in the light of this claim, argues for torture warrants in these cases (2003, Chapter 4). See also Steinhoff 2006 and 2013. However, some theorists have argued that although torture can in some extreme emergencies be morally justified, nevertheless, torture ought never to be legalised or otherwise institutionalised. This position was originally advanced by Machan (1990) before being argued in more detail by Miller (2005) and (2009), and later by McMahan (2008). Before proceeding to the question, or questions, of the moral justifiability of torture in extreme emergencies we need some understanding of what torture is. We also need some account of what is inherently morally wrong with torture. 1. Definition of Torture 2. What is Inherently Wrong with Torture? 3. The Moral Justification for One-off Acts of Torture in Emergencies 3.1 Case Study – The Beating 3.2 Case Study – The Terrorist and the Ticking Bomb 4. The Moral Justification for Legalised and Institutionalised Torture Bibliography Academic Tools Other Internet Resources Related Entries 1. Definition of Torture Torture includes such practices as searing with hot irons, burning at the stake, electric shock treatment to the genitals, cutting out parts of the body, e.g., tongue, entrails or genitals, severe beatings, suspending by the legs with arms tied behind back, applying thumbscrews, inserting a needle under the fingernails, drilling through an unanesthetized tooth, making a person crouch for hours in the ‘Z’ position, waterboarding (submersion in water or dousing to produce the sensation of drowning), and denying food, water or sleep for days or weeks on end. There is a dispute in relation to how extreme the infliction of physical suffering needs to be before it counts as torture and, doubtless, there is a continuum here. For an attempt to make some distinctions in this area see Lauritzen 2013. (For detailed descriptions in a variety of recent and not so recent settings including in policing and in prisons, see Wickersham 1931, Murton & Hyams 1969, Nagel 1978, Landau 1987, Bybee 2002, Public Commission Against Torture in Israel (2003), Levinson 2004, Greenberg & Dratel 2005, Gross 2009, Clucas et al. 2009, Feitlowitz 2011 and Rejali 2007.) All of these practices presuppose that the torturer has control over the victim’s body, e.g., the victim is strapped to a chair. Most of these practices, but not all of them, involve the infliction of extreme physical pain. For example, sleep deprivation does not necessarily involve the infliction of extreme physical pain. However, all of these practices involve the infliction of extreme physical suffering, e.g., exhaustion in the case of sleep deprivation. Indeed, all of them involve the intentional infliction of extreme physical suffering on some non-consenting and defenceless person. If A accidentally sears B with hot irons A has not tortured B; intention is a necessary condition for torture. Further, if A intentionally sears B with hot irons and B consented to this action, then B has not been tortured. Indeed, even if B did not consent, but B could have physically prevented A from searing him then B has not been tortured. That is, in order for it to be an instance of torture, B has to be defenceless. Is the intentional infliction of extreme mental suffering on a non-consenting, defenceless person necessarily torture? Michael Davis thinks not (2005: 163). Assume that B’s friend, A, is being tortured, e.g., A is undergoing electric shock treatment, but that B himself is untouched – albeit B is imprisoned in the room adjoining the torture chamber. (Alternatively, assume that B is in a hotel room in another country and live sounds and images of the torture are intentionally transmitted to him in his room by the torturer in such a way that he cannot avoid seeing and hearing them other than by leaving the room after having already seen and heard them.) However, A is being tortured for the purpose of causing B to disclose certain information to the torturer. B is certainly undergoing extreme mental suffering. Nevertheless, B is surely not himself being tortured. To see this, reflect on the following revised version of the scenario. Assume that A is not in fact being tortured; rather the ‘torturer’ is only pretending to torture A. However, B believes that A is being tortured; so B’s mental suffering is as in the original scenario. In this revised version of the scenario the ‘torturer’ is not torturing A. In that case surely he is not torturing B either. On the other hand, it might be argued that some instances of the intentional infliction of extreme mental suffering on non-consenting, defenceless persons are cases of torture, albeit some instances (such as the above one) are not. Consider, for example, a mock execution or a situation in which a victim with an extreme rat phobia lies naked on the ground with his arms and legs tied to stakes while dozens of rats are placed all over his body and face. The difference between the mock execution and the phobia scenario on the one hand, and the above case of the person being made to believe that his friend is being tortured on the other hand, is that in the latter case the mental suffering is at one remove; it is suffering caused by someone else’s (believed) suffering. However, such suffering at one remove is in general less palpable, and more able to be resisted and subjected to rational control; after all, it is not my body that is being electrocuted, my life that is being threatened, or my uncontrollable extreme fear of rats that is being experienced. An exception to this general rule might be cases involving the torture of persons with whom the sufferer at one remove has an extremely close relationship and a very strong felt duty of care, e.g. a child and its parent. At any rate, if as appears to be the case, there are some cases of mental torture then the above definition will need to be extended, albeit in a manner that does not admit all cases of the infliction of extreme mental suffering as being instances of torture. In various national and international laws, e.g., Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (United Nations 1984 – see Other Internet Resources), a distinction is made between torture and inhumane treatment, albeit torture is a species of inhumane treatment. Such a distinction needs to be made. For one thing, some treatment, e.g., flogging, might be inhumane without being sufficiently extreme to count as torture. For another thing, some inhumane treatment does not involve physical suffering to any great extent, and is therefore not torture, properly speaking (albeit, the treatment in question may be as morally bad as, or even morally worse than, torture). Some forms of the infliction of mental suffering are a case in point, as are some forms of morally degrading treatment, e.g., causing a prisoner to pretend to have sex with an animal. So torture is the intentional infliction of extreme physical suffering on some non-consenting, defenceless person. Is this an adequate definition of torture? Perhaps not, albeit some theorists, such as Kamm (2011), adhere to this kind of conception. Consider the following imaginary counter-example. A woman who is being raped but who is, nevertheless, still in control of the movement of her jaws sinks her teeth into the face of her attacker causing him excruciating pain against which he is defenceless, until finally he desists. Surely the woman is not torturing her attacker but rather defending herself by inflicting excruciating pain on her attacker. Evidently what is missing in the account thus far is the relationship between torture and autonomy: torture substantially curtails autonomy So torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person, and; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)). Is this now an adequate definition of torture? Perhaps not. Here we need to consider the purpose or point of torture. The above-mentioned U.N. Convention identifies four reasons for torture, namely: (1) to obtain a confession; (2) to obtain information; (3) to punish; (4) to coerce the sufferer or others to act in certain ways. Certainly, these are all possible purposes of torture, as is torture performed for sadistic pleasure. However, in the contemporary the concern is principally with interrogational torture; torture to obtain information (Skerker 2010; Lauritzen 2013). It seems that in general torture is undertaken for the purpose of breaking the victim’s will. If true, this distinguishes torture for the sake of breaking the victim’s will from the other four purposes mentioned above. For with respect to each one of these four purposes, it is not the case that in general torture is undertaken for that purpose, e.g., in most contemporary societies torture is not generally undertaken for the purpose of punishing the victim. One consideration in favour of the proposition that breaking the victim’s will is a purpose central to the practice of torture is that achieving the purpose of breaking the victim’s will is very often a necessary condition for the achievement of the other four identified purposes (and, indeed, for the achievement of sadistic pleasure). In the case of interrogatory torture of an enemy spy, for example, in order to obtain the desired information the torturer must first break the will of the victim. And when torture – as opposed to, for example, flogging as a form of corporal punishment – is used as a form of punishment it typically has as a proximate, and in part constitutive, purpose to break the victim’s will. Hence torture as punishment does not consist – as do other forms of punishment – of a determinate set of specific, pre-determined and publicly known acts administered over a definite and limited time period. A second consideration is as follows. We have seen that torture involves substantially curtailing the victim’s autonomy. However, to substantially curtail someone’s autonomy is not necessarily to break their will. Consider the torture victim who holds out and refuses to confess or provide the information sought by the torturer. Nevertheless, a proximate logical endpoint of the process of curtailing the exercise of a person’s autonomy is the breaking of their will, at least for a time and in relation to certain matters. These two considerations taken together render it plausible that in general torture has as a purpose to break the victim’s will. So perhaps the following definition is adequate. Torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)); (c) in general, undertaken for the purpose of breaking the victim’s will. Note that breaking a person’s will is short of entirely destroying or subsuming their autonomy. Sussman implausibly holds the latter to be definitive of torture: “The victim of torture finds within herself a surrogate of the torturer, a surrogate who does not merely advance a particular demand for information, denunciation or confession. Rather, the victim’s whole perspective is given over to that surrogate, to the extent that the only thing that matters to her is pleasing this other person who appears infinitely distant, important, inscrutable, powerful and free. The will of the torturer is thus cast as something like the source of all value in his victim’s world” (Sussman 2005: 26). (See also Bernstein 2015.) Such self-abnegation might be the purpose of some forms of torture, as indeed it is of some forms of slavery and brainwashing, but it is certainly not definitive of torture. Consider victims of torture who are able to resist so that their wills are not broken. An example from the history of Australian policing is that of the notorious criminal and hard-man, James Finch: “He [Finch] was handcuffed to a chair and we knocked the shit out of him. Siddy Atkinson was pretty fit then and gave him a terrible hiding….no matter what we did to Finch, the bastard wouldn’t talk” (Stannard 1988: 40). Again, consider the famous case of Steve Biko who it seems was prepared to die rather than allow his torturers to break his will (Arnold 1984: 281–2). Here breaking a person’s will can be understood in a minimalist or a maximalist sense. This is not to say that the boundaries between these two senses can be sharply drawn. Understood in its minimal sense, breaking a person’s will is causing that person to abandon autonomous decision-making in relation to some narrowly circumscribed area of life and for a limited period. Consider, for example, a thief deciding to disclose or not disclose to the police torturing him where he has hidden the goods he has stolen (a torturing practice frequently used by police in India). Suppose further that he knows that he can only be legally held in custody for a twenty-four hour period, and that the police are not able to infringe this particular law. By torturing the thief the police might break his will and, against his will, cause him to disclose the whereabouts of the stolen goods. Understood in its maximal sense, breaking a person’s will involves reaching the endpoint of the kind of process Sussman describes above, i.e., the point at which the victim’s will is subsumed by the will of the torturer. Winston Smith in George Orwell’s 1984 is, as Sussman notes, an instance of the latter extreme endpoint of some processes of torture. Smith ends up willingly betraying what is dearest and most important to him, i.e., his loved one Julia. Moreover, there are numerous examples of long term damage to individual autonomy and identity caused by torture, to some extent irrespective of whether the victim’s will was broken. For example, some victims of prolonged torture in prisons in authoritarian states are so psychologically damaged that even when released they are unable to function as normal adult persons, i.e. as rational choosers pursuing their projects in a variety of standard interpersonal contexts such as work and family. Given the above definition of torture (elaborated in Miller 2005 and 2009), we can distinguish torture from the following practices. Firstly, we need to distinguish torture from coercion. In the case of coercion, people are coerced into doing what they don’t want to do. This is consistent with their retaining control over their actions and making a rational decision to, say, hand over their wallet when told to do so by a robber who threatens to shoot them dead (albeit painlessly) if they don’t do so. As this example shows, coercion does not necessarily involve the infliction of physical suffering (or threat thereof). So coercion does not necessarily involve torture. Nor does coercion, which does involve the infliction of physical suffering as a means, necessarily constitute torture. Consider, for example, a South African police officer in the days of apartheid who used a cattle prodder which delivers an electric shock on contact as a means of controlling an unruly crowd of South African blacks. Presumably, this is not torture because the members of the crowd are not under the police officer’s control; specifically, they are not defenceless in the face of the cattle prodder. On the other hand, if – as also evidently took place in apartheid South Africa – a person was tied to a chair and thereby rendered defenceless, and then subjected to repeated electric shocks from a cattle prodder this would constitute torture. Does torture necessarily involve coercion? No doubt the threat of torture, and torture in its preliminary stages, simply functions as a form of coercion in this sense. However, torture proper has as its starting point the failure of coercion, or that coercion is not even going to be attempted. As we have seen, torture proper targets autonomy itself, and seeks to overwhelm the capacity of the victims to exercise rational control over their decisions – at least in relation to certain matters for a limited period of time – by literally terrorising them into submission. Hence there is a close affinity between terrorism and torture. Indeed, arguably torture is a terrorist tactic. However, it is one that can be used by groups other than terrorists, e.g., it can be used against enemy combatants by armies fighting conventional wars and deploying conventional military strategies. In relation to the claim that torture is not coercion, it might be responded that at least some forms or instances of torture involve coercion, namely those in which the torturer is seeking something from the victim, e.g., information, and in which some degree of rational control to comply or not with the torturer’s wishes is retained by the victim. This response is plausible. However, even if the response is accepted, there will remain instances of torture in which these above-mentioned conditions do not obtain; presumably, these will not be instances of coercion. Secondly, torture needs to be distinguished from excruciatingly painful medical procedures. Consider the case of a rock-climber who amputates a fellow climber’s arm, which got caught in a crevice in an isolated and inhospitable mountain area. These kinds of case differ from torture in a number of respects. For example, such medical procedures are consensual and not undertaken to break some persons’ will, but rather to promote their physical wellbeing or even to save their life. Thirdly, there is corporal punishment. Corporal punishment is, or ought to be, administered only to persons who have committed some legal and/or moral offence for the purpose of punishing them. By contrast, torture is not – as is corporal punishment – limited by normative definition to the guilty; and in general torture, but not corporal punishment, has as its purpose the breaking of a person’s will. Moreover, unlike torture, corporal punishment will normally consist of a determinate set of specific, pre-determined and publicly known acts administered during a definite and limited time period, e.g., ten lashes of the cat-o-nine-tails for theft. Fourthly, there are ordeals involving the infliction of severe pain. Consider Gordon Liddy who reportedly held his hand over a burning candle till his flesh burnt in order to test his will. Ordeals have as their primary purpose to test a person’s will, but are not undertaken to break a person’s will. Moreover, ordeals – as the Liddy example illustrates – can be voluntary, unlike torture. Having provided ourselves with an analytic account of torture and distinguished torture from some closely related practices, we need to turn now to the question, What is Wrong with Torture? 2. What is Inherently Wrong with Torture? In terms of the above definition of torture there are at least two things that are inherently morally wrong with torture. Firstly, torture consists in part in the intentional infliction of severe physical suffering – typically, severe pain; that is, torture hurts very badly. For this reason alone, torture is an evil thing. Secondly, torture of human beings consists in part in the intentional, substantial curtailment of individual autonomy. Given the moral importance of autonomy, torture is an evil thing – even considered independently of the physical suffering it involves. (And if torture involves the breaking of someone’s will, especially in the maximalist sense, then it is an even greater evil than otherwise would be the case.) Given that torture involves both the infliction of extreme physical suffering and the substantial curtailment of the victim’s autonomy, torture is a very great evil indeed. Nevertheless, there is some dispute about how great an evil torture is relative to other great evils, specifically killing and murder. Many have suggested that torture is a greater evil than killing or even murder. For example, Michael Davis claims, “Both torture and (premature) death are very great evils but, if one is a greater evil than the other, it is certainly torture” (2005: 165), and David Sussman says, “Yet while there is a very strong moral presumption against both killing and torturing a human being, it seems that we take the presumption against torture to be even greater than that against homicide” (2005: 15). Certainly, torturing an innocent person to death is worse than murder, for it involves torture in addition to murder. On the other hand, torture does not necessarily involve killing, let alone murder, and indeed torturers do not necessarily have the power of life and death over their victims. Consider police officers whose superiors turn a blind eye to their illegal use of torture, but who do not, and could not, cover-up the murder of those tortured; the infliction of pain in police cells can be kept secret, but not the existence of dead bodies. On the moral wrongness of torture as compared to killing, the following points can be made. First, torture is similar to killing in that both interrupt and render impossible the normal conduct of human life, albeit the latter – but not the former – necessarily forever. But equally during the period a person is being tortured (and in some cases thereafter) the person’s world is almost entirely taken up by extreme pain and their asymmetrical power relationship to the torturer, i.e. the torture victim’s powerlessness. Indeed, given the extreme suffering being experienced and the consequent loss of autonomy, the victim would presumably rather be dead than alive during that period. So, as already noted, torture is a very great evil. However, it does not follow from this that being killed is preferable to being tortured. Nor does it follow that torturing someone is morally worse than killing him. It does not follow that being killed is preferable to being tortured because the duration of the torture might be brief, one’s will might not ultimately be broken, and one might go on to live a long and happy life; by contrast, being killed – theological considerations aside – is always ‘followed by’ no life whatsoever. For the same reason it does not follow that torturing a person is morally worse than killing that person. If the harm brought about by an act of torture is a lesser evil than the harm done by an act of killing then, other things being equal, the latter is morally worse than the former. A second point pertains to the powerlessness of the victims of torture. Dead people necessarily have no autonomy or power; so killing people is an infringement of their right to autonomy as well as their right to life. What of the victims of torture? The person being tortured is for the duration of the torturing process physically powerless in relation to the torturer. By “physically powerless” two things are meant: the victim is defenceless, i.e., the victim cannot prevent the torturer from torturing the victim, and the victim is unable to attack, and therefore physically harm, the torturer. Nevertheless, it does not follow from this that the victim is entirely powerless vis-à-vis the torturer. For the victim might be able to strongly influence the torturer’s actions, either by virtue of having at this time the power to harm people other than the torturer, or by virtue of having at some future time the power to defend him/herself against the torturer, and/or attack the torturer. Consider the clichéd example of the terrorist who is refusing to disclose to the torturer the whereabouts of a bomb with a timing device which is about to explode in a crowded market-place. Perhaps the terrorist could negotiate the cessation of torture and immunity for himself, if he talks. Consider also a situation in which both a hostage and his torturer know that it is only a matter of an hour before the police arrive, free the hostage and arrest the torturer; perhaps the hostage is a defence official who is refusing to disclose the whereabouts of important military documents and who is strengthened in his resolve by this knowledge of the limited duration of the pain being inflicted upon him. The conclusion to be drawn from these considerations is that torture is not necessarily morally worse than killing (or more undesirable than death), though in many instances it may well be. Killing is an infringement of the right to life and the right to autonomy. Torture is an infringement of the right to autonomy, but not necessarily of the right to life. Moreover, torture is consistent with the retrieval of the victim’s autonomy, whereas killing is not. On the other hand, the period during which the victim is being tortured is surely worse than not being alive during that time, and torture can in principle extend for the duration of the remainder of a person’s life. Further, according to our adopted definition, torture is an intentional or purposive attack on a person’s autonomy; this is not necessarily the case with killing. Finally, torture can in principle involve the effective destruction of a person’s autonomy. Let us now turn directly to the question of the moral justification for torture in extreme emergencies. Here we must distinguish between one-off cases of torture, on the one hand, and legalised or institutionalised torture, on the other. 3. The Moral Justification for One-off Acts of Torture in Emergencies In this section one-off, non-institutionalised acts of torture performed by state actors in emergency situations are considered. The argument is that there are, or could well be, one-off acts of torture in extreme emergencies that are, all things considered, morally justifiable. Accordingly, the assumption is that the routine use of torture is not morally justified; so if it turned out that the routine use of torture was necessary to, say, win the war on terrorism, then some of what is said here would not be to the point. However, liberal democratic governments and security agencies have not even begun to exhaust the political strategies, and the military/police tactics short of the routine use of torture, available to them to combat terrorism. The most obvious version of the argument in favour of one-off acts of torture in extreme emergencies is consequentialist in form. For example, Bagaric and Clarke (2007: 29) offer a version of the ticking bomb scenario in the context of their hedonistic act utilitarian theoretical perspective. A standard objection to this kind of appeal to consequentialism is that it licenses far too much: torture of a few innocent victims may well be justified, on this account, if it provides intense pleasure for a much larger number of sadists. As it happens, Bagaric and Clarke insist that they want to restrict the practice of torture; only the guilty are to be subjected to torture and only for the purpose of extracting information. However it is far from clear how this desired restriction can be reconciled with consequentialism in any of its various permutations, let alone the relatively permissive version favoured by Bagaric and Clarke. Why, for example, should torture be restricted to the guilty, if torturing a small number of innocent persons would enable the lives of many other innocents to be saved (as presumably it might). Again, why should under-resourced Indian police not torture – as they often do in reality – a repeat offender responsible for a very large number of property crimes, if this proves to be the only available efficient and effective form of retrieving the stolen property in question and, thereby, securing the conviction of this offender, reducing property crime and making a large number of property owners happy? The essential problem confronted by consequentialists participating in the torture debate is that their theoretically admissible moral barriers to torture are relatively flimsy; too flimsy, it seems, to accommodate the strong moral intuitions in play. Faced with the slippery slope, as they see it, of one-off acts of torture in extreme emergencies transmogrifying into institutionalised torture, and/or simply appalled by the inherent evil of the practice of torture, many theorists – Arrigo (2004), Davis (2005), Luban (2005), Juratowitch (2008), Mayerfield (2008), Brecher (2008), Matthews (2008), and Shue (2016) – have opted for the opposite extreme and argued that torture can never be morally justified. Most of these theorists avoid the problems besetting consequentialists such as Bagaric and Clarke, and they are on strong ground when providing counter-arguments to consequentialist perspectives and/or views that seek to justify torturing the innocent. (But see Arrigo 2004.) However, their moral absolutism is not without its own problems: specifically, in relation to torturing the guilty few for the purpose of saving the innocent many. (See Walzer 1973, Miller 2005; Kershnar 2006 and Steinhoff 2013.) Before turning in detail to the arguments on this issue, let us consider some putative examples of the justified use of torture. The first is a policing example, the second a terrorist example. Arguably, both examples are realistic, albeit the terrorist ticking bomb scenario is often claimed by moral absolutists to be utterly fanciful. Certainly, the policing example is realistic; indeed, it was provided by a former police officer from his own experience. Moreover, it is widely reported in the media that Al Qaeda, for example, has in the past sought to acquire a nuclear device to detonate in a western city and the 9/11 attacks and bombings in Bali, London, Madrid and Mumbai should leave no doubt whatsoever that Al Qaeda would use such a device if they could get their hands on one. So is it entirely fanciful that there could be such an attack and that an Al Qaeda operative known (on the basis of intercepted communications) to be a member of the cell involved in the planned attack might not be arrested, interrogated and tortured(?) prior to the detonation? At any rate, these are the two most popular kinds of example discussed in the literature. These cases include the real-life Daschner case involving the threat to torture a kidnapper by German police in 2002 which resulted in the kidnapper disclosing the location of a kidnapped child (Miller 2005). 3.1 Case Study – The Beating Consider the following case study: Height of the antipodean summer, Mercury at the century-mark; the noonday sun softened the bitumen beneath the tyres of her little Hyundai sedan to the consistency of putty. Her three year old son, quiet at last, snuffled in his sleep on the back seat. He had a summer cold and wailed like a banshee in the supermarket, forcing her to cut short her shopping. Her car needed petrol. Her tot was asleep on the back seat. She poured twenty litres into the tank; thumbing notes from her purse, harried and distracted, her keys dangled from the ignition. Whilst she was in the service station a man drove off in her car. Police wound back the service station’s closed-circuit TV camera, saw what appeared to be a heavy set Pacific Islander with a blonde-streaked Afro entering her car. “Don’t panic”, a police constable advised the mother, “as soon as he sees your little boy in the back he will abandon the car.” He did; police arrived at the railway station before the car thief did and arrested him after a struggle when he vaulted over the station barrier. In the police truck on the way to the police station: “Where did you leave the Hyundai?” Denial instead of dissimulation: “It wasn’t me.” It was – property stolen from the car was found in his pockets. In the detectives’ office: “It’s been twenty minutes since you took the car – little tin box like that car – It will heat up like an oven under this sun. Another twenty minutes and the child’s dead or brain damaged. Where did you dump the car?” Again: “It wasn’t me.” Appeals to decency, to reason, to self-interest: “It’s not too late; tell us where you left the car and you will only be charged with Take-and-Use. That’s just a six month extension of your recognizance.” Threats: “If the child dies I will charge you with Manslaughter!” Sneering, defiant and belligerent; he made no secret of his contempt for the police. Part-way through his umpteenth, “It wasn’t me”, a questioner clipped him across the ear as if he were a child, an insult calculated to bring the Islander to his feet to fight, there a body-punch elicited a roar of pain, but he fought back until he lapsed into semi-consciousness under a rain of blows. He quite enjoyed handing out a bit of biffo, but now, kneeling on hands and knees in his own urine, in pain he had never known, he finally realised the beating would go on until he told the police where he had abandoned the child and the car. The police officers’ statements in the prosecution brief made no mention of the beating; the location of the stolen vehicle and the infant inside it was portrayed as having been volunteered by the defendant. The defendant’s counsel availed himself of this falsehood in his plea in mitigation. When found, the stolen child was dehydrated, too weak to cry; there were ice packs and dehydration in the casualty ward but no long-time prognosis on brain damage. (Case Study provided by John Blackler, a former New South Wales police officer.) In this case study torture of the car thief can be provided with a substantial moral justification, even if it does not convince everyone. Consider the following points: (1) The police reasonably believe that torturing the car thief will probably save an innocent life; (2) the police know that there is no other way to save the life; (3) the threat to life is more or less imminent; (4) the baby is innocent; (5) the car thief is known not to be an innocent – his action is known to have caused the threat to the baby, and he is refusing to allow the baby’s life to be saved. The classic, indeed cliché, example used to justify torture is that of the so-called ‘ticking bomb’. (See Bufacchi & Arrigo 2006, Kleinig 2006, Hill 2007, Kaufman 2008, Segev 2008, Wisnewski 2009 and Steinhoff 2013.) Consider the following case. 3.2 Case Study – The Terrorist and the Ticking Bomb Consider the following case study: A terrorist group has planted a small nuclear device with a timing mechanism in London and it is about to go off. If it does it will kill thousands and make a large part of the city uninhabitable for decades. One of the terrorists has been captured by the police, and if he can be made to disclose the location of the device then the police can probably disarm it and thereby save the lives of thousands. The police know the terrorist in question. They know he has orchestrated terrorist attacks, albeit non-nuclear ones, in the past. Moreover, on the basis of intercepted mobile phone calls and e-mails the police know that this attack is under way in some location in London and that he is the leader of the group. Unfortunately, the terrorist is refusing to talk and time is slipping away. However, the police know that there is a reasonable chance that he will talk, if tortured. Moreover, all their other sources of information have dried up. Furthermore, there is no other way to avoid catastrophe; evacuation of the city, for example, cannot be undertaken in the limited time available. Torture is not normally used by the police, and indeed it is unlawful to use it. In this case study there is also a substantial moral justification for torture, albeit one that many moral absolutists do not find compelling. Consider the following points: (1) The police reasonably believe that torturing the terrorist will probably save thousands of innocent lives; (2) the police know that there is no other way to save those lives; (3) the threat to life is more or less imminent; (4) the thousands about to be murdered