Torture as a Human Rights Issue

As many MOJ readers know, the position of Christians on torture--the position, that is, of those self-identified Christians who have declared a position on torture--has been quite mixed.  It is not the case that religious believers are generally unconditionally opposed to interrogational torture.  Evangelical Christian scholar David Gushee has lamented “the formation of a sizable and apparently permanent American Christian constituency for torture.”  David P. Gushee, “The Contemporary U.S. Torture Debate in Christian Historical Perspective,” 39 Journal of Religious Ethics 589, 595-96 (2011).  On the implications of Christian teaching for torture, see, in addition to the article by Gushee, Jeremy Waldron, “What Can Christian Teaching Add to the Debate about Torture?,” 63 Theology Today 330 (2006); Jean Porter, “Torture and Christian Conscience:  A Response to Jeremy Waldron,” 61 Scottish Journal of Theology 340 (2008).

I have just posted to SSRN a paper that may be of interest to some MOJ readers:  "Interrogational Torture as a Human Rights Issue:  A Brief Further Reflection on the Morality of Human Rights".  The paper is available for download here.  This is the abstract of the paper:

The morality of human rights consists not only of various rights recognized by the great majority of the countries of the world as human rights, but also of a fundamental imperative that directs “all human beings” to “act towards one another in a spirit of brotherhood.” The imperative — articulated in the very first article of the foundational human rights document of our time, the Universal Declaration of Human Rights (UDHR) — is fundamental in the sense that it serves, in the morality of human rights, as the normative ground of human rights. I have explained all this at length in an earlier paper, “The Morality of Human Rights” (2013), which I have posted to SSRN: http://ssrn.com/abstract=2274381.

In the earlier paper, I addressed (inter alia) this question: Why should one take seriously the normative ground of human rights; that is, what reason or reasons does one have, if any, to live one’s life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”? In this brief paper — which serves as a kind of addendum to the earlier paper — I address a version of a related, followup question: Should we want governments always to “act towards all human beings in a spirit of brotherhood”, no matter what the consequences? Specifically, I address this question: Should we want governments never to subject a human being to torture, no matter what the likely consequences of not subjecting him (or her) to torture?

In the earlier paper, I explained that as the concept “human right” is understood both in the UDHR and in all the various international human rights treaties that have followed in the UDHR’s wake, a right is a human right if the rationale for establishing and protecting the right — for example, as a treaty-based right — is, in part, that conduct that violates the right violates the imperative to “act towards all human beings in a spirit of brotherhood”. Each of the human rights articulated in the UDHR and/or in one or more international human rights treaties is a specification of what, in conjunction with other considerations, the imperative is thought to forbid or to require. The right at issue in this paper — the right not to be tortured — is a specification of what governments must refrain from doing lest they violate the “in a spirit of brotherhood” imperative — lest they, in short, treat a human being inhumanely. Torturing a human being is an instance — indeed, a paradigmatic instance — of treating a human being inhumanely. The question-in-chief in this paper: Should we want governments never to subject a human being to torture, no matter what the likely consequences of not subjecting him (or her) to torture?

The conclusion I reach: Even if we assume that in some imaginable and sufficiently extreme circumstances it would be morally permissible — even, perhaps, morally obligatory — for government officials to subject a human being to interrogational torture, there are nonetheless conclusive reasons for lawmakers and treaty-drafters to make bans on torture exceptionless. It is optimal, all things considered, that laws and treaties do just what both the International Covenant on Civil and Political Rights and the Convention against Torture do: make the right against torture, even interrogational torture, nonderogable. There are conclusive reasons, that is, for laws and treaties to require that governments never violate the normative ground of human rights — that governments never violate the "in a spirit of brotherhood" imperative, that they never treat any human being inhumanely — even if we assume that it is not the case, as a moral matter, that governments should never violate the normative ground of human rights.