Torture, Terror, and the Inversion of Moral Principle
New Criminal Law Review, Vol. 10, No. 4, pp. 613-657, 2007
Workshop: Criminal Law, Terrorism, and the State of Emergency, May 2007
45 Pages Posted: 19 Jan 2007 Last revised: 13 Aug 2013
Extremists on both sides of the War on Terror increasingly argue that torture and the deliberate killing of noncombatants are not merely morally permitted but frequently morally required. Both factions have found unlikely allies in leading scholars whose recent work provides intellectual support for the proposed upheaval of moral thought. This article provides new interpretations of the doctrines of noncombatant immunity and double effect which escape traditional criticisms, withstand contemporary challenges, and provide moral bases for rejecting torture and terrorism with equal force. The article also shows that refusal to torture does not make one complicit in the acts one could have thereby prevented, that deontological constraints retain their conceptual coherence and moral relevance when applied to states, and that threshold deontology does not support institutionalized torture.
Keywords: war, terrorism, torture, complicity, necessity, justification, responsibility, constraints, prerogatives, consequentialism, noncombatant immunity, discrimination, distinction, double effect, intention, foresight, act, omission, Gardner, Sunstein, Vermeule, Kamm, McMahan
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