instruere...inlustrare...delectare Disputations

Wednesday, April 22, 2009

Disproportionate infliction of pain

In a discussion on a Catholic and Enjoying It! post on the ongoing defense of the Bush Administration's policy of torturing prisoners, I was invited to address the position staked out by Jimmy Akin in a series of posts back in 2006. This won't quite be the point-by-point rebuttal asked for, in part because there are a number of points I agree with, but you get what you pay for.

The purpose of the series is to develop a definition of torture (in a moral sense, not a legal sense). The definition Jimmy proposes is this:
The sin of torture consists in the disproportionate infliction of pain.
I should note up front that he explicitly called his definition "a tentative one," and I don't know if he has revised it in the nearly two and a half years since he wrote these posts.

In any case, if I were starting with his tentative definition, I would change it to this:
The sin of torture has as its object the disproportionate infliction of pain upon a captive.
Changing "consists in" to "has as its object" sets aside all the business about battlefield surgeries and suchlike acts where the pain may be great but is not the immediate aim. (An act where the pain may be great but is not the immediate aim might still be immoral, but I wouldn't call it torture.)

A condition like "upon a captive" is needed so that things like throwing the first punch in a bar fight aren't accounted as torture. (It probably follows from this that training someone to resist torture by applying torture techniques to them isn't itself torture, from a strict moral perspective, but that's a sufficiently different situation that I think it's plausible to give it a different moral descriptor.)

I'm not sure I would have wound up with "the disproportionate infliction of pain" -- and Jimmy was explicit that the pain can be physical or mental -- at the center of a definition of torture if I'd started from scratch, but I can work with it.

It seems to me, though, that "The sin of torture has as its object the disproportionate infliction of pain upon a captive," is one of those "You are in a tree" statements that are true, but no help at all when it comes to moral guidance. We can use it to distinguish the category of torture from other categories of human acts -- which is useful for systematizing our thinking -- but it falls apart if we wield it in an attempt to settle the question of whether a particular disputed instance of inflicting pain is torture.

It falls apart because it contains the question-begging term "disproportionate." "Is it torture?" reduces to, "Is it disproportionate?," and the evaluation of moral proportion is a vast briar patch in which the thorny questions of torture are a mere bush or two.

Still, I can say this much about evaluating moral proportion in infliction of pain: there is a proportion relative to the one on whom the pain is inflicted, in addition to the proportion relative to the one inflicting the pain. The same face slap that might get the attention of a yegg might kill an invalid.

Yet Jimmy Akin seems to ignore the proportion relative to the one on whom the pain is inflicted in discussing waterboarding:
I would say that waterboarding is torture if it is being used to get a person to confess to a crime (it is not proportionate to that end since it will promote false confessions). I would also say that it is torture if it is being used to get information out of a terrorist that could be gotten through traditional, less painful interrogation means (it is not proportionate to the end since there are better means available). I would not say that it is torture if it is being used in a ticking time bomb scenario and there is no other, less painful way to save lives (it is proportionate since there is not a better solution).
The only concept of proportion I see considered here is whether the act is the best means to an objectively good end. That is certainly an important question, but it is not the only question. Considering the ways in which our society currently muddles its moral reasoning, I'd say the question of whether the act is proportionate to the dignity of the human persons involved -- both pain inflicter and pain inflictee -- is far more important, because it's far more disputed.

Moreover, the statement "It is proportionate since there is not a better solution," is, in a word, proportionalism. Contrary to what Jimmy implies here, the least evil is not therefore good.

UPDATED to add the word "proportionalism" in place of "consequentialism."

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