Torture

Torture is the deliberate infliction of severe pain on a person held in custody, for confession, information, punishment, or intimidation. European law abolished it as a judicial instrument during the eighteenth century, and the Convention against Torture, adopted by the United Nations on 10 December 1984 and in force from 26 June 1987, prohibits it absolutely — admitting no exception for war, public emergency, or superior orders.³

The settled conservative position is that the prohibition holds. It rests on the Christian and natural law claim that a person retains a dignity the state did not confer and cannot withdraw, and on the older common law instinct that a government which tortures has stopped being a government of laws. A minority of conservative writers have argued for a narrow exception, and the argument between them is worth setting out honestly.

Key Takeaways

• Judicial torture entered European practice in the thirteenth century through the revived Roman-canon law of proof, which required a confession before a court could convict on capital charges.
• Cesare Beccaria’s On Crimes and Punishments (1764) argued that torture tests endurance rather than guilt, and the abolitions across Europe followed within decades.
• English common law resisted the practice: judges consulted in the Felton case of 1628 held torture contrary to the law of England, and the prerogative courts that had authorised it were abolished in 1641.
• The 1984 Convention makes the prohibition non-derogable, and Common Article 3 of the Geneva Conventions bars cruel treatment of detainees in any armed conflict.
• Conservative opposition rests on three grounds: what torture does to the victim, what it does to the institutions that practise it, and how unreliable its product is.

History And Context

Roman law permitted the torture of slaves and, in later imperial practice, of free persons in treason cases. The practice returned to Europe with the reception of Roman law in the twelfth and thirteenth centuries. When trial by ordeal was withdrawn after the Fourth Lateran Council of 1215, continental courts adopted a system of statutory proof requiring either two eyewitnesses or a confession for a capital conviction. Where the evidence fell short, torture supplied the confession. John Langbein’s study of the period shows that the practice was not a lapse into barbarism but the working machinery of a legal system with an impossibly high formal standard of proof.²

England took a different road because the jury could convict on circumstantial evidence and needed no confession. Torture in England was authorised by warrant of the Privy Council under royal prerogative, chiefly in the sixteenth and early seventeenth centuries, and it stood outside the common law rather than within it. Asked in 1628 whether John Felton could be racked, the assembled judges answered that it was contrary to the laws of England. The Star Chamber was abolished in 1641 and the warrants ceased.

On the continent, Beccaria’s short book of 1764 made the decisive argument: torture punishes the accused before conviction, rewards the strong-willed guilty, and convicts the weak innocent.¹ Frederick the Great had already restricted it in Prussia in 1740 and abolished it in 1754; France ended preparatory torture in 1780 and the remainder in 1788.

The question reopened after September 2001. The Israeli Supreme Court had ruled in 1999 that its security service could not use physical means in interrogation, while leaving open a necessity defence for an individual officer after the fact. American legal memoranda between 2002 and 2005 sought to define specific interrogation methods as falling short of torture, and the Senate Select Committee on Intelligence published a study in 2014 disputing the results those methods produced.

The Conservative Position

Conservatives who take the traditional line argue from the nature of the person. If human dignity is given rather than granted, no emergency licenses a state to reduce a person to an instrument for extracting words. That is the natural law argument, and it produces an absolute rule rather than a balancing test, because a right that yields to sufficiently bad consequences is not a right.

The second argument is institutional and specifically Burkean. Practices form the character of those who carry them out. A state that trains interrogators to break people acquires a cadre trained to break people, a legal apparatus for authorising it, and a habit of secrecy that spreads to everything the apparatus touches. The damage is not confined to the cell, and it does not end with the emergency that justified it.

The third argument is practical. A man under sufficient pain says whatever ends the pain. Beccaria made this point in 1764 and interrogators have kept confirming it: the information gathered has to be checked against sources obtained by other means, which raises the question of what the torture added. Conservatives are suspicious of policies whose defenders can never quite produce the evidence of their necessity.

Differing Positions

Charles Krauthammer put the dissenting case in 2005, arguing that a captured terrorist who has planted a nuclear device set to kill a million people is neither a soldier entitled to prisoner-of-war protection nor an ordinary criminal. He held that coercive interrogation is permitted, and in that case morally required, in two circumscribed situations: the ticking bomb, and the high-value detainee holding information about attacks on a slower fuse.⁴ A leader who refuses, on his account, has chosen the moral comfort of clean hands over the lives in his charge.

The standard reply is that the ticking bomb case is constructed to yield its own answer. It assumes the right man, certain knowledge of the plot, reliable information under coercion, and no time for anything else — a combination that has rarely existed, while the institutions built on that hypothetical operate on hundreds of detainees about whom none of it is known. Once an exception is authorised, it becomes a category, and the category expands.

Conservatives on the traditional side add that a nation defending an inherited moral order weakens its own case when it adopts the methods of the regimes it opposes. What is defended, on that view, is not merely a population but a way of governing, and the prohibition on torture is part of what makes it worth defending.

References

1. Cesare Beccaria, On Crimes and Punishments, trans. Henry Paolucci (Bobbs-Merrill, 1963; originally published 1764).
2. John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Regime (University of Chicago Press, 1977).
3. United Nations, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984; entered into force 26 June 1987).
4. Charles Krauthammer, “The Truth about Torture,” The Weekly Standard, 5 December 2005.