Torture, Justification and the Limit Case [Guest Post]

By Jeff Maynes

Kerry's post at Subversive Christianity and Aspazia's subsequent discussion of it here has generated interesting dialogue on the issue of torture. Both Kerry and Aspazia registered shock at the fact that 18 out 22 students in a seminar on torture argued that torture, in some circumstances, is morally justifiable. Aspazia (as well as several comments) speculated that the students responded in this way out of a callous distance from instances of torture. This post contains two parts. In the first, I will advance a theory that explains the rationale of these students, and argue that it has little to do with personal experience or callousness. In the second, I will lend prima facie defense to the claim that the “ticking bomb” case is nevertheless not morally justified.

The question asked of the students in this seminar was “is torture morally justifiable?” There are two ways to understand this question. The first is “is there any feasible circumstance in which torture would be morally justifiable?” and the second is “is there any conceivable circumstance in which torture would be morally justifiable?” The political issue is bound up in the first of the two questions, where our concern is with law. I suspect, however, that it is the second of these two questions that the students answered.

To answer the second question in the negative, the students have to argue that it is necessarily the case that torture is immoral. A necessity claim can be refuted by counter-example. So it would be unsurprising if the students approached this question by looking for such a counter-example, and to find one, they looked at a limit case. It's a situation that strips all of the other variables out of the equation, and probably something along the lines of a “ticking bomb” scenario. Consider the following scenario; you have two choices, and two choices alone, either (a) torture one person and save a thousand lives or (b) do not torture one person and allow thousands to die. If we are interested in a question of feasible circumstances, then this scenario is easily dispelled. It is a false dilemma, it rests on mistaken assumptions about the effectiveness of torture, etc.

But what if this isn't the question at all? If the students are searching out a limit case for the ethical judgment, then this is a pressing issue, and one that deserves an answer. Further, it is a legitimately difficult philosophical question, because it has been stripped of everything except a classical ethical question – is any evil act ever morally justified? The initial question about torture can be taken in such a way that it isn't really about torture at all! As a result, the personal experiences students have had about torture (whether through education or insulation) are stripped away. These questions only come in to play if we interpret the question such that the students are asked, “would you ever sanction an actual or feasible act of torture?” Instead, the utilitarian calculus is the obvious method for making an ethical decision in this case, and when the crank is turned, it is likely to tell you that torture is justified in this limit case.

I am not a student in Kerry's class, and so I do not have any evidence that these particular students took the question in the way I have proposed. My point, rather, is that we ought to be aware of the ambiguity in the question because a conflation of feasible circumstances with logically possible circumstances makes torture much easier to justify in practice even when the argument only holds for a logically possible situation. These are distinct questions, and need to be kept distinct in debates over torture, because admissible answers in one circumstance do not necessarily apply in the other.

I turn next to Patrick's question, which he posted in reply to my initial comment on Aspazia's post. I speculated that in the limit case, we could claim that both actions were immoral. He rightly pointed out that I waffled about whether one ought to torture, even if it torture is an immoral act. The same disclaimer I offered in my comment applies here, I do not have an argument that can defend my speculation in a satisfactory manner, nor can I answer the deep moral issue about whether an evil act can be morally justified. Nevertheless, I can offer some cursory remarks which might make my solution more palatable and which will highlight the complexity of this issue.

The position clearly hinges on three issues – what one ought to do, what counts as moral, and what counts as morally justified? These are intricate and difficult concepts, and as I said, I am merely gesturing towards a way of addressing the problem. What I wish to suggest is that “moral” applies to types of action, whereas “ought” applies to action tokens (or maxims prescribing action tokenings). In this case, torture, as a general practice (let us assume a general and accepted definition) is a type of action and torturing in the limit case is a tokening of that type. This gives a clear answer to the question, that in the limit case, torture is what one ought to do, though torture nevertheless remains categorically immoral.

The first question that one would rightfully ask is, what good does this do for us? Haven't you just justified torture sans the “moral” label? This is a fair question precisely because this is exactly what the picture does. So what good is it? The value is that moral responsibility is saved. The person in this limit case situation has had poor moral luck, but is nevertheless morally responsible for either decision he or she makes. This notion of moral responsibility, then, can be used to justify laws on torture. The limit case is irrelevant to the universal immorality of torture, meaning that laws proclaiming torture universally illegal are ethically justified. Further, it serves an important purpose in guiding behavior, which is perhaps the most important function of ethical rules.

From whence does the ought derive? The obvious answer is from the utilitarian calculus, but what justifies using utilitarian calculations in a case where both choices are immoral? Simply put, we have to make a decision, and therefore we have to ask which immoral decision is the better one to make. Since the choices are strict and clear in the limit case, and a decision is mandatory, we do have to make a moral decision. The question is not, however, which action is morally right, but rather, which action is morally preferable? The utilitarian calculus then, is the tool used to make this unfair and difficult decision. The ought of individual action tokens tracks morality, but comes apart in cases where no moral outcome exists.

I am under no delusion that this brief sketch will have convinced anyone of the truth of this position. In fact, I'm not convinced of its truth myself. There are a number of open questions (can ought and moral come apart? should they? do we wish to accept that individual actions do not admit of morality?, etc.), which undoubtedly the many intelligent readers of this blog will identify and critique. The reason I have presented it is to shed light on the complexity of this question and to stimulate discussion on possible solutions. The complexity of this problem is central to the aim of this post – that the answers' from the students are not particularly shocking, because they, like many people dealing with ethical theory, are trying to make sense of the question 'is an evil act ever morally justified?' This is a question that does not admit of an easy answer, but it is also a question that can be kept distinct from questions about actual instances of torture-decisions provided we are clear about the parameters of our inquiry.