Toture Is Always Wrong

North American Philosophical Publications
Torture Is Always Wrong

Author(s): Ben Juratowitch
Source: Public Affairs Quarterly, Vol. 22, No. 2 (Apr., 2008), pp. 81-90
Published by: University of Illinois Press on behalf of North American Philosophical
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Public Affairs Quarterly
Volume 22, Number 2, April 2008
TORTURE IS ALWAYS WRONG
Ben Juratowitch
debate continues to rage about whether torture is ever morally justifiable.

Consideration of a "ticking bomb" scenario is still common in this debate.
In such a scenario a known terrorist has planted a bomb and the only way to
discover its location is to torture the terrorist. Those who advocate torture in
such extreme circumstances are apparently not dissuaded either by the artificial-
ity of the examples on which they base their moral judgments or by arguments
that the existence of a power to torture in extreme circumstances means that the
power will be used in other circumstances. One argument against the state ever
having the power to torture concedes that torture may be theoretically justifiable
in extreme circumstances, but contends that for pragmatic reasons, primarily the
inevitability of abuse of a power to torture, it should never be allowed to occur.1
A crucial tension in such an argument is that although torture is judged to be
morally permissible in extremis, and perhaps morally obligatory, it is always
prohibited in practice. That discord between theory and practice means that it
is desirable to examine afresh the inherent moral justifiability of torture. This
is so notwithstanding a school of thought that asking the question of whether
torture can ever be morally justified distracts from more relevant questions as-
sociated with torture,2 such as whether, as a matter of practice, the state should
be equipped to torture.
This examination will test the consequentialist case for torture by identifying
a logical extension of that case. The argument will be that it is more appropriate
to view the question of whether torture should occur in terms of a right to be free
from torture, rather than looking solely through the prism of a consequentialist
calculus. If that is accepted, the question becomes when, or if, the right to be free
from torture is defeasible. Attention will be given to what makes torture wrong,
justifying the right to be free from it. Further, an argument will be mounted that
torture is so barbaric that the right to be free from it is never defeasible. However
desperate the countervailing circumstances, torture is always wrong and should
never occur.
Before embarking on the argument outlined, some of the matter

discussion should be mentioned. Discussion of torture often involves consider-
ation of issues that are extrinsic to the question of whether torture, inherently,
81
82 PUBLIC AFFAIRS QUARTERLY
can ever morally be justified. These include consequential question

torture produces reliable information, whether a society and lega
allow torture and maintain the capacity and personnel to inflict i
and whether the existence of a power to torture involves inevitable
power. Other common questions concern the definition and regul
ture, such as how bad treatment must be before being classified a
desperate a situation must be before the use of torture may be co
whether that standard is likely to slip if torture is permitted at all
it is accepted as an empirical fact that torture will occur in extrem
is better for it to be regulated than for it to occur extra-legally. Fu
include whether there is a relevant moral difference between tortu
of interrogation as opposed to a means of punishment or political
and whether there is an important difference between use of tortu
information obtained by torture by the executive government on t
reliance by courts on evidence obtained by torture on the other h
important, these questions do not address the deeper question of w
inherently, can ever be morally justified. If torture can never be j
theoretically, most of these other questions fall away.
To begin addressing that inherent question, let it be assumed for
under discussion is conduct that involves the minimum infliction o
a threshold of mistreatment that qualifies as torture and a security
is so grave that if torture is ever justifiable it is justifiable for the
ernment to use it in that situation to gain information to avert a p
calamity, though the information gained through torture will neve
prosecute a person before a court. Let it also be unrealistically ass
known for certain that the person tortured possesses the informati
the method of torture used is known always to provide reliable in
that the torture will occur in a society with no pre-existing ability
torture and that such a society will spontaneously be reverted to o
has effectively been extracted on an extraordinary occasion. Of cou
a possible, let alone a typical case, and the dangers of relying on s
and abstract examples have been pointed out.3 However, it is "ticki
of this kind that have traditionally motivated, and continue to m
who, in liberal democracies, argue that torture is justifiable. Those
torture would be justifiable in such a situation typically argue, or i
harm done to an individual by torture to extract lifesaving inform
harm done to the fabric of a society in which torture occurs, is j
enormous benefit of avoiding an otherwise inevitable calamity inv
of many lives. Indeed, the argument runs, the state's obligation to
protection compels it to act in their defence, even if torture is the
do so. Although framed in various ways, it is this consequentialist
is at the root of most arguments for torture.
TORTURE IS ALWAYS WRONG 83
This consequentialist approach can be tested using

which is admittedly even more unrealistic than the tic
terrorist had knowledge that could prevent the detonat
she had planted and she also had a three day old bab
to torture the baby until the information was gleaned
if this terrorist was known to have a soft spot for ba
taken to the largest maternity ward in the city and eve
the terrorist provided the information that would save
city? It might be objected that torturing unknown ba
to torturing the terrorist's own baby, which is materially
terrorist herself. Those distinctions are valid. It migh
babies is far removed from, and involves different co
known terrorists. That would be true. However, if the
torture is only that it is a means to gain crucial lifesa
torture is "less bad" than suffering the pending terror
purely consequentialist calculus cannot insist that the to
the terrorist herself. Nor can it insist on the removal of i
consequentialist calculations. The logical extension of
approach to torture is that it must countenance the to
maternity ward for the preservation of the lives of all
more general terms, pure consequentialism must count
on as many innocents, as is required to avoid even gre
A consequentialist would presumably argue that a
that results in the destruction of a city, when there i
unsavoury alternative available, is wrong. On the p
justification of torture, the focus is on a comparison o
tured with the harm that may be prevented by that tor
that is overlooked in this comparison is the question o
outcome. In the case of torture it would be the state t
for the harm caused to the individual or individuals tor
has an obligation to do everything within the proper li
pending terrorist attack. The central question is what ar
power. If the exercise of those powers cannot avoid the
for the harm caused remains squarely with the terroris
This is different to drawing a distinction between m
an act and moral responsibility for an omission. For an
moral responsibility, the thing omitted must itself be
morally required. The state cannot be morally liable fo
that it omitted to do was morally impermissible. To att
caused by torture and the harm caused by a terrorist at
ture should occur because it involves the lesser harm o
consideration that by torturing, the state itself become
A consequentialist might say that outcome is the only thing tha

Even if it were true that a ward of tortured babies is a better "ou
death of every inhabitant of a city, it does not follow that the sta
lesser evil to avoid someone else causing the greater evil.5 The ob
state not to act barbarically is wrongly ignored by such an appr
A potential consequentialist objection to the torture of bab
sume the concerns of other moral theories within a consequenti
consequentialist might claim that he objects to the torture of ba
innocence and vulnerability of babies creates a repugnance that
utility that might be gained from torturing a terrorist. That may
not escape the problem that a pending catastrophe of great enou
will always be a worse "consequence" than torturing a maternity
notwithstanding the high disutility that may be allocated on th
repugnancy of such a course. Torturing babies is wrong because
barbaric, not because of anything to do with broader consequenc
By focussing solely on the outcome of torturing, as opposed t
ing, consequentialists deprive themselves of any moral comp
of outcomes. There is no guidance as to what may and may n
consequentialist calculus. Of course consequences are crucial to de
in public life, but which actions are justifiable in achieving cert
is not indicated by consequentialism alone - unless anything can
balance, the consequence is desirable enough. The present co
rejection of state authorized barbarism should be a constraint on
compared within a consequentialist calculus.
The intuitions of many people who would countenance torture
in an idealized ticking bomb scenario would presumably not exte
nancing torture of babies, even if the destruction of an entire c
Assuming that the killing of all the inhabitants of a city is, on p
tialist grounds, a greater evil than torturing a ward of babies, t
additional or alternative to pure consequentialism is operative in
those who would torture terrorists but not innocents. Whatever it is other than
consequentialism that might underpin the view that torture is acceptable in ex-
treme circumstances is rarely explained. Although some arguments in favour of
torture might be cast in a different light to raw consequentialism, many of them
still have consequentialism at their core. This is because they ultimately hold
that something that would otherwise be wrong is permissible because it avoids
greater harm than it inflicts.
Ideas additional or alternative to consequentialism that have been proposed
include that innocents should not be tortured whereas a terrorist forfeits her prima
facie right to be free from torture,6 and that a known terrorist is not defenceless
because she can choose to end the torture by revealing the information sought,
whereas anyone else tortured in the hope that the terrorist will provide the in-
formation does not himself have the ability to provid

satisfy the objective of the torturer.7 It is rational, and
a terrorist, by her own acts, creates a situation in whic
are likely to tend towards torturing her. That is not, ho
justifying torture. It is a description of the circumstan
fact, people are most likely to feel that torture would
Although claiming that a terrorist forfeits a right to
not itself morally justify the infliction of torture, it may
as an outer limit on an otherwise consequentialist ratio
an approach it would still be the consequentialist benef
that would justify torture, but that justification would
point when in order to achieve the consequentialist be
the terrorist herself, or at least anyone not complicit in
plot, would need to be tortured. Explained in this way, a
with a right to be free from torture, but that those w
forfeit that right, might become more convincing. The
if consequentialism is still the rationale for torture, t
the limit purported to be placed on it by a criterion of
of consequentialist logic with a criterion of guilt may
intuitions, but if consequentialism remains the moral
the first place, that principle will not respect a limit p
by a moral concept with which it is inconsistent.
It is difficult to come up with a concept that coul
limitation on the otherwise ineluctable march of co
than that people who would torture the guilty but no
someone who places others in peril deserves to be tort
cent people. This comes very close to, if it does not ar
as retribution. The guilty may be tortured because the
for torture would be the fact of having placed people in
that those people are in danger. Perhaps someone could
justified two independent rationales would need to
consequentialism and desert.
From a pragmatic perspective it should be observed th
heed to who may be tortured would allow the avoidabl
terrorist may not reveal the desired information if she he
however, care more for the suffering of innocent peo
reveal the information if those innocents are tortured
only permits torture of the guilty, the city will be dest
a means available to save it. The victims of the terroris
they are dear - those that torture is supposed to protec
impressed by the moral scruples that spare a few, or ev
from the pain of torture at the expense of the death o
No self-respecting consequentialist would be impressed by such

As far as consequentialism is concerned, if the stakes are high e
or otherwise of the person tortured is virtually an arbitrary fact
tialism is the rationale for the abrogation of a prima facie right
torture, it would abrogate the right of anyone who could usefully
protect the majority, whether innocent or not.
Guilt is not a morally arbitrary factor, but as soon as we care
factor, we care about the individual being tortured, as an indivi
determinative role of rights of individuals is acknowledged,
torture bear an enormous onus. They can't rely on consequen
they have already refused to obey its dictates. Descriptive a
people would be intuitively willing to tolerate certainly do not s
because such intuitions often ride roughshod over rights that mor
populism, would protect. One prospect for non-consequential
support torture would appear to be that terrorists, because they
for conduct placing others in jeopardy, somehow deserve to be t
of philosophical work would need to be done to support a moral
anyone can deserve to be a victim of torture.
Once it is accepted that there is at least a prima facie right to
torture, the real debate is not about the justification for torture, bu
and if so under what conditions, that right may be defeated. Mo
agree that a baby's right to be free from torture can never be o
it would always be inhumane to torture a baby. Fewer people mi
the right of an innocent spouse of a terrorist to be free from tor
overcome. Fewer still people might think that the right to be free
a person who did not himself plant a terrorist bomb but innoce
mation that could be used to locate and defuse it, but which he
reveal for fear of reprisal from the terrorist who did plant the b
overcome. Even fewer people might think that the right of a ter
be free from torture can never be overcome.
Regardless of differing views on those questions, the common t
that the disagreement is framed within a rights based paradigm. T
this paper is that it is correct to speak of there being a right to be f
and, furthermore, that regardless of the conduct of its victim, tortu
that the right to be free from it is never defeasible, no matter how
being tortured and how strong the consequentialist argument fo
particular case. This "right" is one that inheres in individual dign
that dignity from invasion said to be justified by the common g
The objective of interrogative torture is to force someone to a
will: to supply a piece of information that she does not wish to
not done by bringing to bear threats of criminal prosecution an
liberty so that her will, influenced by such incentives, becomes
information. That can respect dignity and, to some ex

torture aims to inflict a sufficient degree of suffering t
does not constitute changing one's mind under pressure.
deliberate infliction of unbearable suffering, an attemp
has been rendered defenceless8 of the ability to mak
at all. As mentioned above, some have said that a perso
the choice to end her own suffering by providing the i
torturer.9 Assuming it is true that the person being tor
sought and that the torturer will cease the torture onc
think this way overlook that the objective of torture is
suffering, to deprive a person of any choice but that of
Perhaps for a time there is a choice between continuing
information, but the objective of the torturer is to inflict
that ultimately the person suffering it cannot bear it an
left but to provide the information. That is not a choice o
term. Such an attempt at complete deprivation of choic
any autonomy.10 In a grave security situation, deprivat
may not be a concern of great enough strength to trum
safety. Of greater significance is the state's invasion of
The tortured feels only overwhelming suffering and t
by someone who cares not for her dignity or autonomy
tion that she holds and which the torturer wishes to ext
exercise complete dominion over the body and mind o
unbearable suffering and then exploiting that sufferin
that would serve socially beneficial ends.11 That is a cr
torturer causes his victim to suffer and then uses her s
socially beneficial ends. The tortured person is reduced
of the torturer. Her life may be preserved - in fact it
be preserved so that it can be put to use in the way de
dignity and autonomy are completely disrespected. It is
is properly labelled barbaric and for this reason that tor
state should not inflict on any human, by virtue of her
ing someone is, when viewed as an act in and of itself
not qualify as something that may be put on the scale
things that we would like to avoid.
There are many different views on the role of the sta
would agree that there are limitations on what the sta
those limitations should be an obligation not fundam
humanity of people subject to its jurisdiction. Large sc
Governments rightly act strongly and, where necessary
lives of those subject to their jurisdiction. The questio
means to prevent such an attack have failed, it is ever m
state to, through the deliberate infliction of unbearable sufferi

achieve the broader social goal of public safety, disrespect the aut
and, ultimately, humanity of someone who places many others i
The understandable intuition of many people might be that if
situation at stake involved their city, with their family and friend
would insist that if torture was the only way to avoid the destru
then they would approve of torture, or perhaps insist on it. Suc
would not be a valid basis for moral decision making by the stat
takes into account the humanity of the person who holds the in
humanity of those who matter to that person. It fails to respect
anyone else - that of the person who has planted the bomb and, i
combined with inexorable consequentialist logic, of anyone el
innocents that would be required to be tortured in the earlier thou
What if those who sought to justify torture on the basis of this
confronted with a pending calamity in a city in which they knew
they had never heard of the city and had no idea where it was.
however, was the home of the terrorist and her loved ones. Wou
be willing for their own innocent babies to be tortured by the sta
was necessary to save the faceless multitude in the unfamiliar ci
That is what bare consequentialist logic would require of them.
Torture is barbaric, and a state should not be barbaric. To t
barbarically erodes the legitimacy of the state. Torture inflicted by
cumstances in which it considers that torture is justifiable involves
significant than the outcome of a consequentialist calculus and m
than the defeat of a prima facie right to be free from torture. It fu
respects the humanity of the person tortured. Torture is wrong f
that deliberate military targeting of civilian populations, or summ
an unarmed captive soldier, is wrong. Even if it might provide a
benefit for a group under threat, such barbarism disrespects the
victims and is therefore outside the proper function of a state an
cordingly there should be, and under public international law is,
non-defeasible and non-derogable right to be free from torture,
to all people regardless of their crimes and means that, in all cir
state can never morally justify torture.
Some of the secondary issues identified earlier, but excluded f
of this paper, give rise to excellent reasons for the absolute prohib
particularly when torture is considered as a practice rather than
hypothetical example. However, an approach which concedes that
retically justifiable in extreme circumstances but at the same tim
society in which torture can never occur for a list of reasons that
that torture is inherently wrong in all circumstances, would allo
which the ticking bomb scenario may arise but when it does soc
erless to torture effectively, even though it is concede

justified in doing so, or even morally obliged to do
morally, because it concedes the moral justifiability o
tion practically, because whilst conceding that tortur
or even morally obligatory, it precludes it from ever o
If in a grave security situation torture was morally
if it was morally obligatory, then the moral course of
would, at least as considered in isolation, be to torture.
the institution of torture demonstrates that if allowe
However, if torture is the only way to avert a calamity
and consequentialism is its justification, then even th
with maintaining the ability to torture will not outwe
that calamity if the time comes when torture is the on
ingly, if torture is ever morally justifiable, ruling out
creates the potential for a morally and practically haz
foundation to avoid the inevitable perils of allowing eve
is to combine objection to the abuses that accompany it
all cases torture is morally prohibited. If that is so, t
the ability to inflict it.
This objection is applicable only to the argument th
tional cases be morally permissible but that even so it
cases, occur.14 The different argument that torture s
in all cases but that in cases when it is morally justif
occur, with the torturer either being entitled to be exc
a basis for a plea that punishment be suspended or miti
response. That response is in accordance with the main
whether legal or extra-legal, torture is morally wr
therefore never occur.
The state may restrict a person's autonomy and eve
justifiable ways, but because torture involves the delib
that is used against the individual sufferer for comm
an extreme example of state incursion into those valu
person's very humanity. Accordingly, even though tor
human imagination and experience, and the infliction o
extreme circumstances is within the intuition of many
within the proper moral limits of state power. Torture
sible that it is not a legitimate component of any con
question of torture of an individual being compare
should never arise because the barbarism of torture m
the bounds of what it is permissible to compare.
Oxford University
NOTES
Thanks are due to Andrew Ashworth, Rosalind Dixon, Nicholas Ferreira, Wilfred Fi
Sophie Juratowitch, Jamie Mayerfeld, JeffMcMahan, Richard Price, and Samuel Whe
for their insightful comments.
1 . Henry Shue, "Torture in Dreamland: Disposing of the Ticking Bomb," Case Wes
ern Reserve Journal of International Law, vol. 37 (2006), pp. 238-239; contrast He
Shue, "Torture," Philosophy and Public Affairs, vol. 7 (1978), p. 141; and Jeff McMah
"Torture, Morality, and Law," Case Western Reserve Journal of International Law, v
37 (2006), pp. 247-248.
2. E.g., David Luban, "Liberalism, Torture and the Ticking Bomb," Virginia La
Review, vol. 91 (2005), pp. 1441, 1445.
3. Shue, "Torture in Dreamland."
4. See also Alan Gewirth, "Are There Any Absolute Rights?" Philosophical Quarter
vol. 31 (1981), pp. 12-14.
5. Compare Plato, Gorgias, trans. Terence Irwin (Oxford: Oxford University Pres
1979), 87; 509c.
6. Michael Moore, "Torture and the Balance of Evils," Israel Law Review, vol.
(1989), p. 333; Fritz Allhoff, "Terrorism and Torture," International Journal of App
Philosophy, vol. 17 (2003), pp. 126, 130; compare McMahan, "Torture, Morality,
Law," p. 244.
7. Miriam Gur-Arye, "Can the War against Terror Justify the Use of Force in Int
rogations? Reflections in Light of the Israeli Experience," in Torture: A Collection,
Sanford Levinson (Oxford: Oxford University Press, 2004), pp. 183, 192, 194.
8. Shue, "Torture," p. 130.

9. E.g., Gur-Arye, "Can the War against Terror Justify the Use of Force in Interrog
tions?" pp. 183, 192, 194.
10. Compare David Sussman, "Defining Torture," Case Western Reserve Journa
International Law, vol. 37 (2006), pp. 227-229.
1 1 . David Sussman, "What's Wrong with Torture?" Philosophy and Public Affair
vol. 33 (2005), p. 21.
12. Compare Christopher Tindale, "Tragic Choices: Reaffirming Absolutes in t
Torture Debate," International Journal of Applied Philosophy, vol. 19 (2005), p. 216.
13. "International Covenant on Civil and Political Rights," arts. 7 and 4 (March
1976), U.N. Doc. A/6316 (1966); "United Nations Convention Against Torture," ar
(June 26, 1987), U.N. Doc. A/39/51 (1984). See, further, Jose Alvarez, "Torturing
Law," Case Western Reserve Journal of International Law, vol. 37 (2006), p. 175.
14. E.g., Shue, "Torture in Dreamland," pp. 238-239.
15. Compare Shue, "Torture," p. 141; and McMahan, "Torture, Morality, and La
pp. 247-248.

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North American Philosophical Publications

Torture Is Always Wrong

North American Philosophical Publications, University of Illinois Press are collaborating

TORTURE IS ALWAYS WRONG

debate continues to rage about whether torture is ever morally justifiable.

Before embarking on the argument outlined, some of the matter

can ever morally be justified. These include consequential question

This consequentialist approach can be tested using

A consequentialist might say that outcome is the only thing tha

formation does not himself have the ability to provid

No self-respecting consequentialist would be impressed by such

information. That can respect dignity and, to some ex

state to, through the deliberate infliction of unbearable sufferi

erless to torture effectively, even though it is concede

8. Shue, "Torture," p. 130.

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