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Legitimating Torture?

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Abstract

Steinhoff (On the ethics of torture. SUNY Press, Albany, 2013) defends the moral and legal permissibility of torture in a limited range of circumstances. This article criticizes Steinhoff’s arguments. The analogy between ordinary defensive violence and defensive torture which Steinhoff argues for is partly spoiled by the presence, within defensive torture, of opportunistic harm, in addition to eliminative harm. Steinhoff’s arguments that the mere legalization of defensive torture would not metastasize into a more full-fledged institutionalization of torture are also found wanting. As a minimal form of institutionalization, the mere legalization of torture would already be at risk of further entrenchment and growth.

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Notes

  1. ET, pp. 13–14, 58, and passim.

  2. ET, p. 7.

  3. ET, pp. 7–8.

  4. ET, p. 114. The case is presented in the context of Steinhoff’s capable discussion of the “breaking of will” objection to torture emphasized by some absolutists.

  5. This type of torture will of course be sadistic, or recreational.

  6. ET, pp. 81, 85–86, 97, and passim.

  7. Steinhoff’s “Argument from Necessity” (ET, pp. 39–45) seems little more than a recital, without much supporting explanation, of this fundamental commitment of threshold deontology. As I see it, the sense of necessity invoked in the Argument from Necessity is not to be confused with the necessity condition on defensive violence.

  8. As we shall see in Sect. 5, Steinhoff himself leans on the unusual nature of these cases in his argument for legalization.

  9. Even more extreme variants of Extreme Ticking Bomb cases can be fashioned: the selected torture victim, or victims, might include children, for example. Steinhoff’s Argument from Necessity suggests that he would be prepared to countenance the use of torture in such cases.

  10. Cf. McMahan (2008), p. 118.

  11. I borrow these easy-to-present cases from Griffin (2010), p. 9.

  12. This is my term, not Steinhoff’s. The same holds for the “Relative Harm Claim” and “Permissibility Claim”, introduced below.

  13. Steinhoff treats the extension from self-defence to other-defence as unproblematic. Interestingly, he also notes that, in German penal law, the generic term is “Notwehr”, which is better translated as “emergency defence”, applicable to both self-defence and other-defence (ET, p. 11). I note one or two dangers with the extension from self-defence to other-defence in Lang (2014), pp. 45–47.

  14. ET, p. 33.

  15. The trajectory of argument plotted by Hare (2014), esp. pp. 387–388, seems rather similar.

  16. ET, pp. 106–107.

  17. ET, p. 17. The distinction between the proportionality condition and the no-gross disproportionality condition is discussed at ET, p. 13.

  18. ET, p. 29.

  19. The main argument is essentially over and done with as early as ET, p. 19. At ET, pp. 35–38, Steinhoff also offers the “Argument from the Culpability for Creating a Forced-Choice Situation” [see Montague (1981) and (1989) for the original source of the argument]. On my view, it is better to classify the forced-choice justification, not as an entirely independent argument, but as a particular way—one among many—of grounding the defensive permissions which lie behind the self-defence justification. In any case, I won’t pay any further attention to it here.

  20. In the general review of recent literature offered in Chapter 6, Steinhoff discusses a large number of challenges. I make no attempt at completeness here, but will simply pick out what I regard as the most significant challenges.

  21. See Shue (1978).

  22. ET, pp. 81, 83, 92–96.

  23. ET, p. 95. See Thomson (1991) for an influential discussion. Thomson’s view that it is permissible for the victim to kill the innocent threat in self-defence is controversial, however: see, for example, Otsuka (1994) for an opposing view.

  24. Kaufman (2008), pp. 109–110. The passage is quoted in ET, pp. 97–98.

  25. ET, pp. 98–99.

  26. Quinn (1989), p. 343.

  27. Quinn (1989), p. 343.

  28. Quinn (1989), p. 344.

  29. Quinn (1989), p. 344.

  30. Kaufman’s implicit acceptance of this claim, or something close to it, would explain why he thinks that instrumental violence can, with no additional commitments, be inflicted on innocent bystanders as well as those who are liable. Without the Non-Combinability Claim, that inference is more difficult to explain.

  31. This is just another way of saying that the Content Objection has now been vindicated.

  32. See, for example, McMahan (2008) and Hare (2014).

  33. Perhaps the law reflects worries about possible abuses and the incidence of unjustified violence arising from defensive torture.

  34. It is not being denied that the law is entitled to restrict the forms of permissible defensive violence: the law can severely restrict gun ownership, for example.

  35. Dershowitz (2002) advocates the introduction of such a torture warrant system. His views are criticized by Steinhoff at ET, pp. 61–67.

  36. ET, pp. 61–67. See also Griffin (2010) for a nuanced picture of the various bad effects we might expect from the institutionalization of torture.

  37. ET, p. 67.

  38. ET, p. 67.

  39. ET, pp. 73–74.

  40. See Waldron (2010). Steinhoff discusses Waldron’s views at ET, pp. 74–77.

  41. Waldron (2010), p. 228.

  42. Waldron (2010), p. 232. The discussion at pp. 222–260 is generally relevant.

  43. ET, p. 76.

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Acknowledgments

An earlier version of this article was presented at the Applied Ethics seminar in Leeds. I would like to thank various members of that audience for their helpful and thoughtful comments.

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Correspondence to Gerald Lang.

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This is a critical study of Steinhoff (2013): page references in the footnotes will abbreviate it as “ET”.

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Lang, G. Legitimating Torture?. Criminal Law, Philosophy 11, 331–349 (2017). https://doi.org/10.1007/s11572-015-9372-3

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