Is torture unconstitutional?
Robert Justin Lipkin
RJLipkin at AOL.COM
Mon Jun 17 15:04:15 PDT 2002
In a message dated 6/17/2002 1:00:41 PM Eastern Daylight Time,
VOLOKH at mail.law.ucla.edu writes:
> But it's surely impermissible to say "if you don't tell us more about your
> conspiracy, we'll kill your 5-year-old daughter." There's a difference
> between what we can threaten to do to the innocent and what we can threaten
> to do to the guilty.
> We allow utilitarian concerns to justify certain actions against the
> guilty, even when we wouldn't allow such utilitarian concerns to justify
> those actions against the innocent.
But, of course, the question is why these intuitions should prevail.
The persistent "ticking bomb" example is predicated on an act-utilitarian
analysis--"thousands--perhaps tens of thousands--of innocent civilians will
be killed if we don't torture one measly guilty terrorist. Even if future
consequences might militate against torture, they're in the future, this is
now." The question, of course, is why, on an act-utilitarian analysis, guilt
should be relevant. The same tens of thousands of deaths will occur in
either case. If the analysis is mixed or rule-utilitarian, we undermine the
force and persuasiveness of the "ticking bomb" example. Consequently, either
the ticking bomb example is persuasive--but it is unclear how guilt is
relevant to the analysis. Or guilt is relevant to the analysis because a
mixed or rule-utilitarian analysis prevails, but then the ticking time bomb
scenario is severely undermined. If we take the first horn, torturing the
innocent daughter of the knowing guilty terrorist is morally as good or bad
as torturing the terrorist himself--if both will save the town. If we take
the second horn it's not obvious that we are permitted to torture the
terrorist in the first place.
Widener University School of Law
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