Not Enough (official) torture in the world?
The circumstances in which torture is morally justifiable

Mirko Bagaric and Julie Clarke

 

Final version: Bagaric, M. andClarke, J. ‘Not Enough (official) torture in the world? The circumstances in which torture is morally justifiable’(2005) 39 University of San Francisco Law Review 581-616

Download final PDF version from Deakin Research online

 

Abstract

 

There is an absolute proscription against torture. Despite this it is widely used by many states. The formal prohibition against torture is pragmatically unrealistic and morally unsound. Torture as an interrogative device is merely the sharp end of the widely accepted principle that in extreme circumstances it is permissible to violate the interests of a wrongdoer (and sometimes even the innocent) in order to protect large numbers of people. This principle is reflected in practices such as drafting soldiers to go to war. The pejorative connotation associated with torture should be abolished. A dispassionate analysis of the propriety of torture indicates that it is morally justifiable. There are five considerations relevant to an assessment of whether torture is permissible and the degree of torture that is appropriate. The variables are (i) the number of lives at risk; (ii) the immediacy of the harm; (iii) the availability of other means to acquire the information; (iv) the level of wrongdoing of the agent; and (v) the likelihood that the agent actually does possess the relevant information. Where (i), (ii), (iv) and (v) rate highly and (iii) is low, all forms of harm may be inflicted on the agent – even if this results in his or her annihilation.