instruere...inlustrare...delectare Disputations

Thursday, June 10, 2004

Today's first torture post

In a comment below, feddie (who is a recent convert and a lawyer; comprendre tout, c'est pardonner tout) writes:
There is a rule of statutory construction, Expressio unius est exclusio alterius, which means "to express or include one thing implies the exclusion of the other."

The Catholic Church says torture is bad with respect to a, b, c, and d. To me, that implies not that e is o.k., but that something between e and z might be morally acceptable.

But this leads me back to my question. If you're right, and torture is always morally repugnant, then why not say so unequivocally in the CCC?
Here is CCC 2297, with emphasis as it appears in the text:
Kidnapping and hostage taking bring on a reign of terror; by means of threats they subject their victims to intolerable pressures. They are morally wrong. Terrorism threatens, wounds, and kills indiscriminately; it is gravely against justice and charity. Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity. Except when performed for strictly therapeutic medical reasons, directly intended amputations, mutilations, and sterilizations performed on innocent persons are against the moral law.
First, let's set aside the "What is torture?" question and assume we're talking about acts everyone agrees is torture.

The question is then whether the sentence on torture is to be understood as proscribing all torture, or only those acts of torture performed to "extract confessions, punish the guilty, frighten opponents, or satisfy hatred." In other words, does this teach that torture is objectively immoral, or only immoral in certain cases?

Well, what determines the morality of an act? "The morality of human acts depends on: the object chosen; the end in view or the intention; the circumstances of the action." [CCC 1750] If the object of an act is evil, the act is "objectively evil." If the object is not evil, the act is not objectively evil, and can only be immoral in certain cases.

Now, what would make an act immoral only in certain cases? It must be either the intention or the circumstances. Satisfying hatred is certainly an evil intention, but punishing the guilty is not. If torture is not objectively immoral, then, the Catechism gives an explicit example of an act of torture which the circumstances alone make evil.

So we would understand the Catechism to be teaching: a) that every act of torture with the intent of punishing the guilty necessarily involves circumstances which make the act contrary to respect for the person and for human dignity; and b) these circumstances do not obtain for every act of torture.

What are the circumstances that would make torture to punish the guilty contrary to respect for the person and for human dignity, but torture for some other reason not contrary? Circumstances do include the consequences, so the only answer I can see is based on double effect reasoning: The Catechism would be teaching that the good of punishing the guilty can never outweigh the evil of the offense to the prisoner's human dignity, but that there are other goods that can.

For this to be the case, though, the offense to the tortured person's human dignity needs to be an unintended secondary effect of torture. That strikes me as a tough argument to make.