torture and the nature of law

[Frank Cross]

It's difficult to determine the optimal amount of torture (if this exists),
because any such determination would require descriptive assessments of at
least (a) the nature and reality of the threat, (b) the necessity and the
effectiveness of torture in identifying and preventing the threat, and (c)
the ability of government to operationalize this (identifying the right
person, identifying the necessity of torture, identifying the effective
method of torture, etc.)

The answers to these are all highly uncertain and all would have to be
answered in the affirmative to ever justify torture.  I think there are
severe doubts about (b) and (c) at least.  One might have a similar in the
First Amendment context, arguing for the prohibition of speech as enhancing
the risk of terror, yet I'm dubious whether there is any real threat.
Still, I have to admit of the possibility that at some future date, the
government would stumble across a person and realize that torture of the
individual could prevent the destruction of a major city.

Even with the latter possibility, I would make all torture illegal.
Because I think that if it ever were a clear case that torture was vital to
protect the country, the government would do it regardless of what the law
said.  The virtue of the absolute rule is to avoid the overuse of torture
in cases where the need and value of torture is highly uncertain and to
prevent any slippery slope risks.


Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712