Why Is Torture 'Different' and How 'Different' Is It?

67 Pages Posted: 27 Feb 2008 Last revised: 28 Oct 2017

See all articles by Sherry F. Colb

Sherry F. Colb

Cornell University - Law School

Date Written: 2009

Abstract

Almost every serious commentator to address the moral and legal question of torture has taken for granted the proposition that the infliction of torture is a sufficiently grave evil to require a distinctly demanding moral scrutiny, one that categorically sets torture apart from other terrible things (including killing) that human beings do to one another. To paraphrase the Supreme Court's death penalty jurisprudence, most people agree that torture is "different."

Under the Eighth Amendment, the fact that death is different does not rule out its application; it simply alters the relevant procedural standards. By contrast, many scholars believe torture should be entirely out of the question, and positive law gives effect to this view. This Article asks why. Why does torture merit its own moral category when killing does not?

The Article first asks whether torture is in fact "different" at all. To this end, the Article sets out a novel hypothetical case in which a torturer acts in true self-defense. It thereby demonstrates that when circumstances are truly identical, and the "self-defense" characterization is accurate, the use of torture becomes no more troubling than the use of lethal force.

The Article then turns to the "ticking bomb" scenario and asks what makes this case different enough from genuine self-defense to engender such division among those who support the right to justifiable homicide. Having demonstrated that the distinction between torture and killing fails to account for the distinction, the Article develops a series of hypothetical examples that produce three criteria that will justify the use of torture and/or lethal force: First, torture or killing must be used against a wrongdoer; second, the force must be an effective means of saving innocents; and third, the status of the person to be killed or tortured as a wrongdoer must be closely tied to the utility of selecting him. It cannot, in other words, be a coincidence that the person whose torture will save lives also happens to be a wrongdoer.

Unlike other work on the subject of torture, this Article does not attempt to persuade the reader of the legality, illegality, morality, or immorality of torture under particular circumstances. Instead, it attempts to explain the nature of the debate and shed light on its evident intractability. The Article concludes that disagreements over the morality of torture are likely to persist, because one can make a fairly persuasive case both for and against the satisfaction of the third criterion I unearth - the tightness of fit between a subject's wrongdoing and the utility of torturing him - in the case of the "ticking bomb" case.

Keywords: torture, killing, eighth amendment, self defense, homicide, innocent, morality, legality, Supreme Court, jurisprudence, death penalty

Suggested Citation

Colb, Sherry F., Why Is Torture 'Different' and How 'Different' Is It? (2009). Cardozo Law Review, Vol. 30, No. 1411, 2009; Columbia Public Law Research Paper No. 08-171. Available at SSRN: https://ssrn.com/abstract=1099061 or http://dx.doi.org/10.2139/ssrn.1099061

Sherry F. Colb (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States

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