Morning Report 5/17/05Torture is ‘Morally Justifiable,’ Say Aussie Law Profs


Sure to cause a ruckus, this upcoming law review article takes the utilitarian view of a painful issue

An upcoming University of San Francisco Law Review article by two Australian law professors argues that the current worldwide proscription—in lip service only, obviously—against torture is not only unrealistic but is also morally unsound.

Take an early peek at its content by reading a defense of the article by its lead author, Mirko Bagaric, hot off the press at The Age in Melbourne. And don’t freak out about their take on torture. Others are already doing that for you.

Bagaric, head of Deakin Law School, in the Melbourne area, and Julie Clarke, a lecturer at the school, came up with a long, but pretty good, title for their law review article: “Not Enough (Official) Torture in the World? The Circumstances in Which Torture is Morally Justifiable.”

I got an e-mail over the weekend from someone purporting to be an Australian journalist who sent me (and presumably many others) not only a copy of the law review article but also an e-mail she addressed to the university’s provost, basically blasting him for allowing such a thing to be printed. Her note was way over the top and morally unjustified, in my view.

She did, however, also ask the provost whether the article was a “hoax.” I immediately thought of the ruckus Alan Sokal raised in 1996 with his clever piece in the journal Social Text, “Transgressing the Boundaries: Toward a Transformative Hermeneutics of Quantum Gravity.”

But no, this law review article is the real thing—I checked it out with the USF Law Review editor, Megan K. Rosichan, and she confirms that it’s real—except that I have only an “early, unedited version” so don’t quote it or even summarize it.

Events have overtaken her proscription. Word is already gushing out of the Australian papers The Age and the Sydney Morning Herald, and people are simply outraged.

Bagaric and Clarke will no doubt take lots of heat for saying that an innocent person could justifiably be tortured—even to death—but only if that would save a great many other lives.

People on the left may scream about how horrible the two law profs are, and people on the right may point to the article as “evidence” that what has happened at Abu Ghraib and Guantánamo is thus justified. Both sides are wrong, and the lead author, Bagaric, is already answering the critics.

In The Age, Bagaric’s retort in the storm is simply titled “The Case for Torture,” in which he says:

Our reflex rejection of torture needs to be replaced by recognition that it can be a moral means of saving lives.

Hold on. Just follow his logic:

Recent events stemming from the “war on terrorism” have highlighted the prevalence of torture. This is despite the fact that torture is almost universally deplored. The formal prohibition against torture is absolute—there are no exceptions to it.

The belief that torture is always wrong is, however, misguided and symptomatic of the alarmist and reflexive responses typically emanating from social commentators. It is this type of absolutist and short-sighted rhetoric that lies at the core of many distorted moral judgments that we as a community continue to make, resulting in an enormous amount of injustice and suffering in our society and far beyond our borders.

Torture is permissible where the evidence suggests that this is the only means, due to the immediacy of the situation, to save the life of an innocent person. The reason that torture in such a case is defensible and necessary is because the justification manifests from the closest thing we have to an inviolable right: the right to self-defence, which of course extends to the defence of another. Given the choice between inflicting a relatively small level of harm on a wrongdoer and saving an innocent person, it is verging on moral indecency to prefer the interests of the wrongdoer.

Yes, but who decides what “saving an innocent person” means? George W. Bush‘s handlers treat Halliburton and other corporate profiteers like cute little innocent puppies. Would you have those handlers decide whether torture is justified? The Bush regime has a terrible history of ignoring torture not only in places they control but in out-of-control places like Uzbekistan. (Well, I didn’t say that Bagaric and Clarke were being 100 percent practical.)

But you have to give the Aussies their due. On down in his newspaper article, Bagaric notes:

Torture in order to save an innocent person is the only situation where it is clearly justifiable. This means that the recent high-profile incidents of torture, apparently undertaken as punitive measures or in a bid to acquire information where there was no evidence of an immediate risk to the life of an innocent person, were reprehensible.

Bagaric and Clarke’s 31-page USF Law Review piece (at least the early version I’ve seen) is much more densely argued. Their foundation is utilitarianism, for you philosophy buffs out there. And they even provide an equation where you could supposedly work out a “threshold” for situations in which you yourself might want to take pains before inflicting them on anyone else.

Speaking of pain, Bagaric and Clarke are already feeling it. As Liz Minchin of The Age writes:

Even before their paper has been printed, Professor Bagaric and Mrs. Clarke have begun receiving hate mail from students and staff at Deakin University, as well as being heavily criticised by some of their legal peers.

Professor Bagaric told The Age that he expected to be criticised for his views, particularly on torturing innocent people.

To me, what’s refreshing about the law review article (the version I’ve seen) is that it clears away some of the overblown, moralistic rhetoric on the issue of crime and punishment. Bagaric and Clarke also say emphatically that torture should not be used as punishment—and they conclude that harsh punishment does not deter.

Those of us who think that the death penalty is one of the few absolute wrongs can take heart from the profs’ piece, based on my reading of it.

In the case of Bagaric and Clarke, however, there will be people on all sides of the political spectrum calling for their execution.