A Non-Consequentialist Defense of Torture.

Though torture continues to be used, it provokes in people a unique moral disgust that even capital punishment does not elicit. But there is an equally strong and just as universal intuition that the use of torture would be acceptable in extreme circumstances. This paper seeks to ground that competing instinct in something more stable and claims that liberals must accept that the right to not be tortured is not unalienable after all. This paper first explores existing opposition to and defense of torture from the rights-based and utilitarian perspectives and finds them all wanting for different reasons. In response, it constructs two different non-consequentialist defenses of interrogational torture. Of the different purposes for torture, only interrogative torture warrants a serious defense, albeit a very grudging one made from utilitarian calculations about extreme cases, e.g. the ubiquitous ticking-bomb scenario. Such an approach is subject to highly speculative and inexact calculations about aggregate benefits and losses, however, and neither does it adequately protect individual liberties in difficult situations. A defense in the non-consequentialist vein is much more stable, as it allows for greater consistency of analysis while respecting the individuality and value of persons and their freedoms. Both defenses draw from the social contract tradition, deriving the right to not be tortured not from a priori rights belonging to every person, but rather from hypothetical consent to a certain political and social system, in which violations of that agreement result in the loss of the protections afforded under it. The first defense uses the Lockean model to argue that executive power in the state of nature includes the right to torture criminals for preventive purposes when they have forfeited their rights against interference, and this right to torture is transferred to governments when entering civil society. The second defense takes the Rawlsian framework of the two principles of justice and argues that the Priority of Liberty allows for tradeoffs within freedom of persons to permit interrogative torture under dire circumstances. [ABSTRACT FROM AUTHOR]