Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, April 24, 2009

Can any form of torture be justified as "harm distribution?"

A quick reaction to Chris Eberle's response to Casey Khan's point regarding the information gap: Approaching torture as a means of "harm distribution" seems to have no logical or moral stopping point.  If waterboarding did not convince KSM to talk, it would still serve the cause of harm distribution to pull out his fingernails, place him on the rack, even boil him alive, wouldn't it?  This gets at my intuitive discomfort with Chris's approach: I associate harm distribution with redirecting the effects of others' harmful conduct, but here we're talking about avoiding the effect of others' harmful conduct by engaging in our own freestanding harmful conduct.  If KSM tosses a live grenade into a school bus, I would be justified in tossing it back out of the bus, even if it places KSM in harm's way by doing so.  That's redistributing the harm.  Pulling out his fingernails to find out where the bus is does not, in my estimation, redistribute the harm.  It avoids the harm to the kids by causing harm to KSM.  I don't think we can avoid consequentialist reasoning if we want to defend it.


Vischer, Rob | Permalink

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