Restoring the Rule of Law
Christopher H. Pyle
Torture and the Ideology of National Security
The Illusion of Accountability: The Idea of an American Truth Commission on Torture
Deconstructing Ticking-Bomb Arguments
Defusing the Ticking Social Bomb Argument: The Right to Self-Defensive Torture
Torture Writ Large: The Israeli Occupation
The Necessity Defence and the Myth of the Noble Torturer
What Would Jack Do? The Ethics of Torture in 24
Donal P. O’Mathuna
The Torturer’s Apprentice: Psychology and ‘Enhanced Interrogations’
Bryant L. Welch
Algeria as Template: Torture and Counter-Insurgency War
Liaquat Ali Khan
Cranking up the Volume: Music as a Tool of Torture
'A Long Experience of War': Gaza in Historical Perspective
Harmony amid Diversity: The Importance of Interfaith Dialogue
Humanity and Its Landscapes: A Green History
Holmes Rolston III
Volume 12 ● Number 1 ● Winter/Spring 2010—Working the Dark Side
Defusing the Ticking Social Bomb Argument: The Right to Self-Defensive Torture
However, we sometimes feel justified in violating the rights of a person because the stakes are so very high. If we could save humanity only by killing one innocent person, thus violating his rights, we might well feel justified in doing so. In the same vein, the proponents of what I call the ticking social bomb argument hold that in certain circumstances it is justifiable to violate people’s right to self-defence (which also includes the defence of others) against a culpable aggressor by shielding this aggressor from torture (thus aiding and abetting him in his aggression), even if in the circumstances torture would have been a proportionate and necessary means of self-defence against the imminent threat posed by the aggressor. They say that this severe rights-violation is justifiable if such an act of self-defensive torture would have terrible social consequences. And they claim that acts of torture always have such consequences: any act of torture, according to them, leads to the institutionalisation of torture, to a pandemic of torture, to a social explosion of torture, as it were.
This is the ticking social bomb argument. I will argue here that it is sheer fantasy and that we should not cede our right to self-defensive torture to unrealistic consequentialist concoctions.
What happened? Well, I have mimicked—indeed mocked—the way quite a few absolutist opponents of torture deal with the so-called ticking-bomb argument (not to be confused with what I call the ticking social bomb argument): they like to pose as the defenders of human rights or of deontological constraints against evil or as deluded consequentialists who are intent on undermining those absolute rights and constraints by appealing to allegedly utterly unrealistic scenarios. Yet, unfortunately for these absolutist torture opponents, it is rather easy to turn the tables on them, along the lines of the introductory paragraphs. This is precisely what I will do here.
Is Torture Absolutely Impermissible?
Let me first note that practically all recent publications directed against the ticking-bomb argument do not provide any plausible deontological argument for the claim that there is an absolute right (as least as far as the real world is concerned) not to be tortured. Such a plausible argument cannot be provided by simply brandishing the concepts of “human dignity” or of “ends in themselves” or “human rights”, etc.; rather, a plausible argument would have to show why torture in self-defence should be absolutely prohibited or would violate human rights or human dignity even while killing in self-defence is not thus prohibited or does not violate human rights or dignity. This is obviously a very difficult prerequisite, and in their desperation some absolutist opponents have resorted to dogmatically insisting that all forms of torture are worse than death.1 Well, they are not, as a moment’s reflection can easily show. Would you prefer death to thirty minutes of “waterboarding”? Or even to a whole day of waterboarding?
Of course, more could be said on the failure of several deontological arguments, or better, pseudo-arguments—“pseudo” because they all beg the question or make preposterous empirical assumptions—but it has been said in other places already.2 However, let me nonetheless provide one example for my claim that recent critics of the ticking-bomb argument fail to provide arguments for their deontological claims.
My example is a very prominent one, namely that of Henry Shue. Shue has written an article on torture that is frequently referred to in the literature as “seminal” or “classic”, and with good reason.3 In that article he claimed that single acts of torture can be morally justified in extreme conditions. He has since rescinded this position and become an absolutist opponent of torture.
However, in that older article Shue had at least developed an argument for why torture might always be impermissible even if killing is sometimes justified. I have criticised this argument elsewhere4—it is clearly wrong, and Shue no longer adheres to it. But instead of providing a new argument, he now just makes irrelevant references or blatantly wrong statements. As regards the former, he begins his article “Torture in Dreamland”—a favourite among absolutist opponents of torture—with the apodictic statement: “Torture is wrong.”5 This short statement comes with a footnote that bears the whole argumentative burden: “David Sussman provides a powerful explanation of why torture is wrong in his article in this volume.”6 Yet Sussman not only provides no powerful explanation of why torture is wrong, he provides no explanation at all, nor does he claim to do so. Instead, he offers as conclusion merely the following: “If life calls for a special kind of respect or concern from us, then torture, insofar as it aims to transform life into a kind of anti-life, must be morally offensive in a way that is different from and perhaps greater than even killing.”7
Well, perhaps not.8 But however that may be, even if torture were morally more offensive than killing—by which Sussman means only, as is clear from an important earlier article of his, that torture “bears an especially high burden of justification, greater in degree and different in kind from even that of killing”9—this would not show that it is always wrong (and Sussman explicitly says that he does “not here contend that torture is categorically wrong”).10 After all, killing someone is morally more offensive than breaking someone’s finger, but that obviously does not show that it is always wrong to kill someone. It would at best suggest this if breaking someone’s finger were always morally wrong—but it isn’t. Killing someone is not always morally wrong, either. Therefore the fact, if it were a fact, that torture is always morally more offensive than killing could not show, or even so much as suggest, that torture is always morally wrong.
As regards making blatantly wrong statements, Shue claims in his most recent article on torture (and other issues), again apodictically: “Clearly torture is morally wrong—no one seriously suggests otherwise.”11 Either Shue is using the term “morally wrong” in an entirely idiosyncratic fashion, or else he lacks an overview of the current debate—strangely enough for someone who vigorously takes part in it. Authors like, for example (completely aside from those who have not published in English), Winfried Brugger, Stephen Kershnar, Fritz Allhof, Seumas Miller, Francesco Belvisi, Mirko Bargaric, Julie Clarke, Jeff McMahan and myself, definitely do seriously suggest otherwise.
Thus, apart from dogmatic statements and imagined consensus, Shue has nothing to offer on the deontological front against self-defensive torture. I think that this is quite revealing.
Straw Man ‘Idealisations’
Let us now turn to Shue’s criticism of the ticking-bomb argument. “There is a standard philosopher’s example which someone always invokes: suppose a fanatic, perfectly willing to die rather than collaborate in the thwarting of his own scheme, has set a hidden nuclear device to explode in the heart of Paris. There is no time to evacuate the innocent people or even the movable art treasures—the only hope of preventing tragedy is to torture the perpetrator, find the device, and deactivate it.” While Shue had once seen “no way to deny the permissibility of torture in a case just like this”,12 he has increasingly stressed the unlikelihood of this situation over the years, coming to the conclusion “that one should absolutely never torture”.13 The “idealisations” Shue detects in this ticking-bomb case include the idea that the person to be tortured “is somehow known with certainty actually to be the person who planted the ticking bomb” and that the torture victim “quickly divulges the crucial information before the bomb has had time to explode”.14
But whose idealisations are these? Shue claims that “someone” always invokes this ticking-bomb scenario, but note that in his description of the scenario those idealisations are missing. And in fact Shue never ever provides a reference revealing the identity of this mysterious someone engaging in the unrealistic idealisations that bother Shue so much. So who is it?
The fact is that it is Shue himself. He conjures up a ticking-bomb argument of his very own making in order then conveniently to detect idealisations in it that he himself has personally put there in the first place.15 If someone is being unrealistic here, it is Shue himself.
No one who has ever used a ticking-bomb scenario to argue for the permissibility of torture in the real world (instead of only to test the strength or scope of our presumably absolutist convictions) has ever used a scenario that involved the two idealisations just mentioned. And no one needs to, as we will see below.
The supposed “idealisation” Shue detests most, however, is that of the rare, isolated case, which holds that incidents of torture do not recur: “Once the original ‘right man’ becomes too hysterical to provide coherent information, the torturers do not simply move on to, as it were, the second-best ‘right man.’ And the torturers do not, operating on the principle that practice makes perfect, circulate from, say, Guantanamo to Bagram to Abu Ghraib to Romania to Poland.”16 Shue, in contrast, proclaims that the ticking-bomb hypotheticals
are not simply imaginary but unrealistic, like an imaginary alcoholic who drinks two beers only a night. There are former alcoholics, who do not drink at all, and active alcoholics. To think that there may be rare alcoholics who drink moderately is to fail to understand alcoholism. Similarly, history does not present us with a government that used torture selectively and judiciously.17
The alcoholism analogy is the epitome of the social ticking-bomb argument: if an alcoholic has one drink, he will have many. Similarly, if just one act of torture is allowed to happen, many will follow—torture will “metastasize throughout the body politic”.18 A single act of torture suffices to ignite the fuse that will lead to the social explosion of torture.
Of course, it is Shue who fails to understand alcoholism—as much as he fails to understand torture. He does not have a shred of evidence for his claims. While officially he stresses how important it is that “one immerses oneself in the empirical details”,19 it seems that he does not actually really check the empirical facts. True, in cheesy Hollywood soap operas and drinking melodramas an alcoholic cannot have two beers only a night. In reality, however, he can20—a fact Shue could have easily discovered had he checked reality instead of taking urban legend at face value. Thus, one has to turn Shue’s example upside-down: claiming that there cannot be rare, isolated cases of torture is like claiming that an alcoholic cannot have two beers only a night. It confuses fact and fiction. It is torture-opposition in dreamland.
The True Dreamers
Shue seems to have a second argument, though, which he offers under the heading of “abstraction” instead of “idealisation”. Unfortunately, it is difficult to decipher what exactly the argument is supposed to be; Shue certainly is not particularly clear about it. Anyway, let us have a look at the decisive passages:
it is simply dreamy to think that all of a sudden we are simply going to stumble upon someone who happens to have the skills to make a man who planted a ticking bomb reverse the direction of his life and assist us in defusing his bomb. But this is very bad news for my attempt in 1978 ... to allow the exceptional case. Our ... problem is abstraction: we have abstracted from the social basis—the institutional context—necessary for the practice of torture. For torture is a practice. Practitioners who do not practice will not be very good at what they do ...
Either “torturers” are just thugs who have no clue what they are doing, in which case we need not allow for exceptional cases in which they rapidly and effectively extract invaluable catastrophe-preventing information, or some can have genuine expertise ... If we want it ready, we need to maintain, even nourish, the organizations and networks in which the expertise resides.21
This is an argument against torture based not on the bad consequences of acts of torture, but the preconditions of successful acts of interrogational torture and the consequences of the institutionalisation of torture. The argument seems to go like this:22
1. In order to torture someone in a way that will actually retrieve the vital information, the torturer has to be skilled and experienced.
2. Skilled and experienced torturers are available only if torture is institutionalised.
3. Torture by unskilled and inexperienced torturers is always unjustified.
4. However, institutionalising torture has very bad consequences; it will mean that torture will metastasise instead of being limited to one-off cases.
5. Conclusion: Torture is never justified (one should never torture).
If this is not Shue’s argument, I do not quite know, I admit, what it is (and, again, the onus is on him to make his argument clear, not on others). Anyway, what should we make of this argument as stated here?
First of all, let me make clear that I whole-heartedly agree with premiss 4. Institutionalising torture (which is different from its mere legalisation),23 for example through “torture warrants”, the training of torturers, the maintenance of torture camps, the production of torture instruments, etc., is a very bad idea indeed. I absolutely reject the institutionalisation of torture.
However, while I accept premiss 4, I reject the first three premisses. They are all wrong.
As regards premiss 1, it is simply not true that in order to torture someone in a way that will actually retrieve the vital information, the torturer has to be skilled and experienced. In a famous case in Germany in 2002, the mere threat of torture (and some think that threatening torture is torture) sufficed to make the child-kidnapper Magnus Gäfgen disclose the location of the child (who, however, had already been murdered by Gäfgen—but that does not speak against the effectiveness of torture to retrieve the truth in some cases).
Gäfgen wanted to avoid pain. Pain is a very strong motivator. Even if Gäfgen had withstood the threat of pain, the actual infliction of pain might very well have changed his mind. And it is simply not that difficult to inflict pain. It does not require long training and experience. To be sure, a skilled and experienced torturer will be more efficient in some cases, but in other cases he might not retrieve the information any quicker than an untrained torturer; and even if he did, the untrained torturer might still be effective enough to avert the danger in time.
But we do not have to speculate: eight-year-old Denis Mook was kidnapped in Bremen, Germany, in 1988. After the ransom payment the kidnapper was arrested. He refused to reveal the location of the child. The police then beat the kidnapper until, finally, he did reveal the child’s location. The police retrieved the child alive from a wooden box (90 x 50 x 40 centimetres) in which he had been caged for thirteen days and thirteen nights (a treatment that certainly amounts to torture, in this case of an innocent child, and not of a culpable kidnapper). The child was alive and in relatively good health. Thus, if we follow Shue’s advice and immerse ourselves in the empirical details, we discover what he fails to see: for self-defensive torture to be effective, you do not need torture experts. (Besides, more than twenty years after this act of torture, Germany has still not adopted the widespread use of torture—as Amnesty International will confirm. This is further proof that Shue’s claim that there cannot be isolated cases of torture is “dreamy”, to use his word of choice.)
Premiss 2 is also wrong. Even if it were correct that only a torture bureaucracy could produce torture experts (actually, it is not true, but I will not argue this point here), this still would not mean that you have to institutionalise torture, that is, create or maintain a torture bureaucracy, in order to have access to torture experts. It is enough that there once was a torture bureaucracy somewhere in the not too distant past. This is, for example, the case in Argentina or Chile. Thus, if they faced a Gäfgen or Mook case (or a ticking-bomb case), they would have access to trained torturers without having to rely on the existence (now) of a torture bureaucracy. Thus, there would be no metastatic effects involved.
That premiss 3 is wrong already follows from the falsity of premiss 1. However, it is worthwhile noting just how wrong premiss 3 is. The idea behind the premiss is of course that interrogational torture has to be likely to succeed in order to be justifiable. Sometimes Shue even sounds as though he thinks that torture actually has to succeed. That it does succeed is one of the “idealisations” Shue deplores.24 However, interrogational torture indeed sometimes does succeed, as we just saw. Pointing out this fact is not idealistic, but realistic, while denying it is unrealistic.
Moreover, it is not true that self-defence (self-defensive torture is no exception) has to be successful in order to be justified. If somebody tries to fend off a rapist with mace spray and fails, the use of the mace against the rapist was still justified. Might does not make right, and helplessness does not make wrong.
Still further, there does not even have to be a likelihood of success in all cases. Indeed, success may be highly unlikely. To recycle an example of mine: “Even if it were an empirically well-proven and commonly well-known fact that stopping a serial murderer and rapist by ramming a sharp pencil deep into his ear only works one out of 10,000 times, a victim of a rapist would still be well within her rights to ram a sharp pencil deep into the rapist’s ear if that is the only option remaining that at least could have success.”25 There is simply no reason why the victim of an aggressor, or people who come to help the victim, should forgo their last hope only in order to make sure that the aggressor is not inconvenienced by defensive measures that in all likelihood will not stop him anyway. They are allowed to try to stop him with improbable means if they run out of probable ones.
‘Hard Cases Make Bad Law’
Thus, the attempt by Shue (and others) to justify violations of our right to self-defensive torture with consequentialist arguments fails. Of course, Shue (and others) do not want to couch what they are doing in terms of a programme for the consequentialist justification of rights violations. They want to pass that buck to the ticking-bomb theorist (or, in my case, the Dirty Harry theorist: while I think the ticking-bomb scenario is realistic, I do not believe that it ever really has been real). However, that does not work.
Consider the fact that already in his original article on torture—where he still conceded the moral permissibility of torture in certain circumstances—Shue vehemently opposed the legalisation of torture. “Hard cases make bad law” was his slogan, and still is.26 However, Shue overlooks that this slogan cuts both ways.27 As Volker Erb has rightly argued, someone who shields an aggressor from necessary and proportionate defensive measures by or on behalf of the victim (for example, by making such measures punishable or by physically obstructing them) actually aids and abets the aggressor and violates the rights and the human dignity of the victim.28 But this is precisely what Shue thinks should happen: the police and the law should prevent a would-be torturer from defensively torturing Mook’s kidnapper, for example, thereby providing important support for the latter’s aggressive torture of the child. Thus, as far as these cases are concerned, Shue suddenly does want to make exceptions to the general rules that prohibit aiding and abetting child-kidnappers, and, more generally, that allow just self-defence and prohibit hindering it. He demands that the victims’ and their helpers’ right to self-defence (and freedom and life) be violated and that the police and the law become the accomplices of the kidnapper. Whatever happened to “hard cases make bad law”?
The only justification Shue has for demanding that the child-kidnapper and child-torturer be aided and abetted by legally shielding him or her from defensive torture, however, is his consequentialist ticking social bomb argument. Since that argument, as we saw, is spurious and a pure fantasy, we must reject it and uphold the right to self-defence, including the right to self-defensive torture.
But Is It Self-Defence? Yes, It Is
But is torturing the terrorist in the ticking-bomb case really a case of self-defence? Well, I will not argue here that it is (although I do think it is and that even if it weren’t, there would be a non-consequentialist justification—based on rights and on justice in the distribution of unavoidable harm—for torturing the ticking-bomb terrorist). Instead, I will focus on the child-kidnapping case. I can do this because Shue—and others—use the ticking social bomb argument to deny, as we saw, the permissibility of any act of torture, and not only the permissibility of torture in the ticking-bomb case. Thus, they are committed to the view that in the child-kidnapping case torture is impermissible, too.
Anglo-Saxon philosophers and lawyers arguing for an absolute prohibition of torture hardly ever consider the child-kidnapping case. This is somewhat ironic. It is ironic because they like to claim, as Shue does, that the “advocates of torture love a ticking bomb”.29 Actually, however, it is the absolute prohibitionists who love it, or, more precisely, who are obsessed with it—so much so that they can hardly see beyond it. For the most part, they labour under the delusion that by “defusing” the ticking-bomb argument one defuses “the” argument for torture.30
Therefore, it is hardly surprising that two recent critics of the idea that torture can in some cases be justified by an appeal to the right to self-defence focus exclusively on the ticking-bomb case.
Whitley Kaufman’s criticism relies on the distinction between what he (basically following Jeff McMahan) calls the “Aggressor” and what he calls the “Culpable Bystander”. The latter is “a person who has committed a wrongful act, but is not now committing a wrong”.31 The former is now committing a wrong, or is posing an imminent threat. Kaufman thinks that the captured ticking-bomb terrorist is only a Culpable Bystander and that violence to avert pending unjust harm may be directed only against Aggressors. I think that Kaufman is wrong on both counts, but will not argue this here. Instead, I simply want to point out that Kaufman’s criticism is completely inapplicable to the kidnapping case since, as he himself admits, a “kidnapper ... is an aggressor simply by virtue of his holding you hostage”.32 Thus, Mook’s kidnapper, by holding the child hostage in a wooden box, thereby depriving him of his freedom and torturing him, is an aggressor, whether in custody or not. He is, after all, torturing the child right now while he is in custody. (This is also how German law, British law, and US law see it.)33 Thus, torturing the kidnapper to save the child would be a case of self-defensive torture even on Kaufman’s own assumptions.
Daniel Hill assumes (without argument) that if you cause a person to perform a very specific action, then the action by which you cause this is not self-defensive. Self-defensive actions, according to him, are only those that prevent a person from doing something. I see absolutely no reason why one should accept this assumption. It is certainly not part of the meaning of self-defence.
More important, however, is that Hill further thinks that there is a big moral difference between preventing someone from doing something and making him do something specific. He tries to illustrate this difference with several examples, which, for reasons of space, I cannot go into here. Suffice it to say that I do not share his intuitions at all.
Yet, the decisive point comes when he tries to identify “the basis of this moral difference between preventing someone from performing an action that will cause a tragedy and causing someone to cause a tragedy not to occur”.34 It lies, he says, in the difference between negative duties (not to do something) and positive duties (to do something). He elaborates:
It seems permissible, then, in some circumstances to inflict pain to force people to comply with their negative duties, but it does not seem permissible to inflict pain in order to force people to comply with their positive duties, even extremely important positive duties, such as the duty to avert an atrocity that the people in question have set in motion.35
The problem is that Hill has a remarkably simplistic—indeed mistaken—view of negative duties. To be sure, one can discharge negative duties by doing nothing whatsoever ever, but once one starts to do something one might be able to discharge one’s negative duties only by doing something. As Richard Louis Trammel notes:
Drivers must correct the movement of their cars, and waiters and waitresses must hold on to hot dishes passing over their customers. Thus the requirement of the commands not to kill or injure is not that the agent refrain from initiating any causal processes tending toward death or injury, but rather that the agent not initiate any such causal processes without continuing to intervene to counteract the tendencies he has previously initiated.36
Thus, for the ticking-bomb terrorist and the child-kidnapper, the positive action of revealing the location of the bomb or of the child, respectively, is an obvious way to discharge their negative duty not to kill or torture innocent people unjustifiably. If they do not discharge this duty voluntarily, they can be forced to discharge it in self-defence—by self-defensive torture, if need be.
However, genuine cases of self-defensive torture are extremely rare, much rarer than cases of self-defensive killing. In fact, nearly all—but not absolutely all—cases of torture are unjustified, as are the overwhelming majority of cases of killing. Torturing so-called terrorists to find out more about their networks is not a case of self-defensive torture (and, as an aside, the necessity defence does not apply either). Finally, let me again emphasise that I am adamantly and categorically against the institutionalisation of torture, and thus against training torturers, torture warrants, torture camps and “rendition”.
2. See in particular Stephen Kershnar, Desert, Retribution, and Torture (Lanham, Md.: University Press of America, 2001), pp. 186−90; Rainer Trapp, Folter oder selbstverschuldete Rettungsbefragung? [Torture, or life-saving interrogation brought upon oneself?] (Paderborn: Mentis, 2006), pp. 103−85, 220−4; and Uwe Steinhoff, “Justifying Defensive Torture”, in Torture: Moral Absolutes and Ambiguities, ed. Bev Clucas, Gerry Johnstone, and Tony Ward (Baden-Baden: Nomos, 2009), pp. 47, 51−6.
3. Henry Shue, “Torture”, Philosophy and Public Affairs 7, no. 2 (winter 1978). Henceforth, I will refer to the version reprinted in Torture: A Collection, ed. Sanford Levinson (Oxford: Oxford University Press, 2004).
4. Uwe Steinhoff, “Torture: The Case for Dirty Harry and against Alan Dershowitz”, Journal of Applied Philosophy 23, no. 3 (August 2006), pp. 337−8. Reprinted in War, Torture and Terrorism: Ethics and War in the 21st Century, ed. David Rodin (Oxford: Blackwell, 2007).
5. Henry Shue, “Torture in Dreamland: Disposing of the Ticking Bomb”, Case Western Reserve Journal of International Law 37, nos. 2 and 3 (2006), p. 231.
6. Ibid., n. 2.
7. David Sussman, “Defining Torture”, Case Western Reserve Journal of International Law 37, nos. 2 and 3 (2006), p. 230.
8. For a criticism of Sussman’s views see my “Case for Dirty Harry”, pp. 338−40.
9. David Sussman, “What’s Wrong with Torture?”, Philosophy and Public Affairs 33, no. 1 (January 2005), p. 4.
11. Henry Shue, “Making Exceptions”, Journal of Applied Philosophy 26, no. 3 (August 2009), p. 310.
12. Shue, “Torture”, p. 57 (Shue’s italics).
13. Shue, “Making Exceptions”, p. 308.
14. Shue, “Torture in Dreamland”, p. 233.
15. This is also the way David Luban proceeds. See his “Unthinking the Ticking Bomb”, Georgetown Law Faculty Working Papers, Paper 68, July 2008, pp. 7−8 [http://scholarship.law.georgetown.edu/fwps_papers/68], and his “Liberalism, Torture, and the Ticking Bomb”, Virginia Law Review 91, no. 6 (October 2005), pp. 1440−5.
16. Shue, “Torture in Dreamland”, p. 233.
17. Ibid., p. 234 (see also p. 238). Shue adds in a footnote: “If anyone knows a case, I would appreciate an e-mail giving its name.” May I add here that I would appreciate an e-mail from Shue giving me the name of a ticking-bomb theorist making the certainty assumption?
18. Ibid., p. 235.
19. Shue, “Making Exceptions”, p. 310.
20. See “Can an Alcoholic Have an Occasional Drink?”, BBC News Magazine, 10 November 2008 [http://news.bbc.co.uk/2/hi/uk_news/magazine/7719522.stm], and David J. Hanson, “Alcoholics Can Recover from Alcoholism and Drink in Moderation” [http://www2.potsdam.edu/hansondj/controversies/1109212610.html].
21. Shue, “Torture in Dreamland”, p. 237.
22. Jessica Wolfendale’s argument in “Training Torturers: A Critique of the ‘Ticking Bomb’ Argument”, Social Theory and Practice 32, no. 2 (April 2006), seems to have a similar structure.
23. In my view, many absolutist opponents of torture, in particular those obsessed with the ticking-bomb argument, overlook this distinction between legalisation and institutionalisation. Some even overlook the distinction between legalisation and moral justification.
24. Shue, “Torture in Dreamland”, p. 233.
25. Steinhoff, “Justifying Defensive Torture”, p. 44. For another example to the same effect, see my “Case for Dirty Harry”, pp. 342−3.
26. Shue, “Torture”, p. 57; “Torture in Dreamland”, p. 233.
27. This also true for the treatment of exceptions from moral rules. Not allowing exceptions from the moral prohibition of torture but allowing them from the moral right to self-defence is simply arbitrary.
28. Volker Erb, “Folterverbot und Notwehrrecht” (The prohibition of torture and the law of self-defence), in Ist Folter erlaubt? Juristische und philosophische Aspekte (Is torture allowed? Legal and philosophical aspects), ed. Wolfgang Lenzen (Paderborn: Mentis, 2006), pp. 30−2.
29. Shue, “Torture in Dreamland”, p. 231.
30. I think this is true of Henry Shue, Jessica Wolfendale, J. Jeremy Wisnewski, R. D. Emerick, Yuval Ginbar and David Luban, to name a few. Only on the last three pages of his book on the ticking bomb (see note 1 above) does Bob Brecher finally mention the child-kidnapping case—and says that nothing can be done for the child. Denis Mook is lucky that the police in Bremen did not share this view.
31. Whitley Kaufman, “Torture and the ‘Distributive Justice’ Theory of Self-Defense: An Assessment”, Ethics and International Affairs 22, no. 1 (spring 2008), p. 98 (Kaufman’s italics).
32. Ibid., p. 115, n. 71.
33. Steinhoff, “Justifying Defensive Torture”, pp. 43−5.
34. Daniel Hill, “Ticking Bombs, Torture, and the Analogy with Self-Defense”, American Philosophical Quarterly 44, no. 4 (October 2007), p. 400.
35. Ibid., p. 401.
36. Richard Louis Trammell, “A Criterion for Determining Negativity and Positivity”, Tulane Studies in Philosophy 33 (1985), pp. 76−7.