The Torture Dilemma

Cesare Beccaria‘s reasoned argument against torture in 1764:

A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.

A man cannot be called guilty before sentence has been passed on him by a judge, nor can society deprive him of its protection till it has been decided that he has broken the condition on which it was granted. What, then, is that right but one of mere might by which a judge is empowered to inflict a punishment on a citizen whilst his guilt or innocence are still undetermined?

The following dilemma is no new one; either the crime is certain or uncertain; if certain, no other punishment is suitable for it than that affixed to it by law; and torture is useless. If it is uncertain, it is wrong to torture an innocent person, such as the law adjudges him to be, whose crimes are not yet proved.

Statists [Nationalists, Conservatives, Authoritarians – any political form that elevates the state above the individual] will argue that non-citizens are outside of the dilemma, an exception if you will, except that the just relationship between individual and state disqualifies tyranny, arbitrary governance and exceptions. This makes it impossible to justify the torture of any individual in a liberal democratic system.

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wbb
wbb
14 years ago

Statists will not argue that at all. Yours is a fit up, Cam. But there are plenty on all sides of the political compass that will condone torture. It’s a psychological trait.

James Farrell
14 years ago

My feeling is that you are getting your dilemmas mixed up, Cameron.

Beccaria’s ‘dilemma’ relates to the problem of how to establish guilt or innocence. From a modern point of view, it’s not really a dilemma at all, since we are long converted to his way of seeing things. It would only be a dilemma for someone who was scratching around for a legitimate use for torture – a media spokeman, say, for the turturers’ guild.

The modern dilemma relates to the morality of using torture to extract information that can be used to thwart a crime: the ‘ticking bomb scenario’. But this is an ethical dilemma, not a legal one, so the citizenship of the prisoner is neither here nor there.

cam
cam
14 years ago

James, I think my paragraph after Beccaria’s quote covers the ticking bomb dilemma. The purpose of a liberal democratic system is to remove tyranny – which torture is. If a liberal democracy does torture, it is no longer a liberal democratic system, it becomes something other.

Patrick
14 years ago

I don’t think it is so easy to fob this discrimination against non-citizens off on statists, happy as I normally am to blame statists for every ill.

From some strictly libertarian perspectives, such as that espoused by Nozick, my understanding was that non-citizens don’t necessarily have any consideration beyond their ability to strike you.

As I have said before, I think you are equating some sort of humanist libertarianism with all libertarianism.

Kevin Schnaper
Kevin Schnaper
14 years ago

I think it sensible to see the citizen-state dynamic as one consisting of a circulation of power and rights from the citizen to his government and back. At most times, the citizen is his own agent. But at other more pressing times, it seems a perfectly rational precept that state concerns trump personal ones.
(Because, at times, the safety of the state *means* the safety of the personal.)

On the idea that “one is a citizen of the state in which he finds himself”: I think this a distortion of the word citizen. One may say that humans have fundamental rights, but I do not think those fundamental rights necessarily include citizenship in whatever country one resides. Citizenship is a relationship to a state, which requires some degree of reciprocity. Human rights are more fundamental than that. They are owned outright by each one of us. If you landed on an uncharted island, you would assume that you still had basic human rights, but citizenship would not be relevant. In a way, the idea that “one is a citizen of the state in which he finds himself” seems to assume that citizenship determines human rights, which should not be true. If one landed in Saudia Arabia, citizenship would still not grant human rights. But you would still think they were your due.

cam
cam
14 years ago

Kevin, One may say that humans have fundamental rights, but I do not think those fundamental rights necessarily include citizenship in whatever country one resides.

Those fundamental rights are inherently political though. A ‘right’ only makes sense in a political framework, otherwise they are merely freedoms which may or may not be arbitrarily suppressed by external violence.

A right must be political, and must be based on the just relationship between individual or state. Unless you are arguing that an external natural entity – god or nature for instance – grant that right, in which case the state can never take it away anyway because something greater than the state has granted it.

If you landed on an uncharted island, you would assume that you still had basic human rights, but citizenship would not be relevant.

You would have perfect freedom on the island, but you would have to defend – physically – your ability to be perfectly free from external coercion. Citizenship becomes a political expression of rights – or individual freedom – which the state cannot remove. In its current form citizenship is a discriminative form that is more a ‘subject’ of the state, rather than a fundamental political right of an individual.

If one landed in Saudia Arabia, citizenship would still not grant human rights. But you would still think they were your due.

Saudi Arabia is a monarchy, its people are subjects, not citizens. Their political freedom exists at the whim of the state. Political rights remove whim, and replace it with certainty. However, the only way an individual can be assured that they wont be treated with arbitrary whim by the state is for citizenship to be based on universal political right.

Kevin Schnaper
Kevin Schnaper
14 years ago

Cam, I take your points on rights being related to political entities.

I was trying to make a case that the catch-as-catch-can citizenship that you describe isn’t really citizenship. It’s “Citizenship” — a different something, dependant upon momentary location rather than the conditions normally associated with the word.

But citizenship is not momentary, that’s why “residency” is a pre-requisite. Nor is it wholly owned by the individual, to be bartared like currency, free of obligation. From the arrangment of citizenship arises a dual sovereignty over the individual. If the “power” of citizenship rested wholly with the individual, as you seem to recommend, then law would become meaningless. To escape prosecution, a criminal would simply declare his citizenship defunct and take his loot out of the country.

And though I should have put quotes around “citizenship” with respect to Saudia Arabia to be more clear, the point remains the same, that if you are a “citizen” of where you land then why wouldn’t you end up a subject if you ended up in a monarchy? The idea of a chameleon-like citizenship ends up putting more power in the hands of totalitarian states to abrogate rights while simultaneously reducing the ability of democratic countries to enforce their laws.

Plus, wouldn’t you rather be a citizen of Australia in Turkey, than a citizen of Turkey in Turkey?

Possibly I am confused by your suggestion. If citizenship is based on universal political right, than why ask that one be a citizen of Australia while in Australia or a citizen of the U.S. within the U.S.? Location shouldn’t matter. Which brings us back to the idea of landing in a monarchy, which proves that location does matter. Which may suggest that universal political rights are only universal where there is agreement that they are universal, which would require some accord between all “free” nations. Is that what you are suggesting? In which case, state sovereignty among these nations would dissolve and boy wouldn’t that be a mess!

Kevin Schnaper
Kevin Schnaper
14 years ago

Nationalism is an outgrowth of tribalism and tribalism is an outgrowth of the need of the individual for protection — because individuals are inherently weak and unable to fend off disaster alone. In view of this, your view of Nationalism simply in terms of its negative “despotic” aspects seems incomplete at best.

A post-nationalist, post-tribalist future may one day come to pass. But only at the point when human beings no longer require physical protection. I can’t imagine a scenario, beyond the gobal implementation of a medical-science driven immortality, where humanity would be that secure.

Like all “return to the garden” utopian scenarios, your notion seems like a burst of fresh air and sunshine, but in actuality it is a recipe for disaster. All utopian projects, based as they are on a benign view of human nature, result in either dissipation or disaster. There are no exceptions that I can think of.

Kevin Schnaper
Kevin Schnaper
14 years ago

You wrote, “the world went through all sorts of political technologies before it got to nationalism.”

Yes, and each was an iteration of tribalism. We are evolving through variations on the theme an we always have been. Nationalism at this moment is the tribalism du jour. That is because enemies still exist in the world and human beings are still human beings. You can’t eradicate the dark side of humanity on a wish. Ambition and fear do not go away unitl all ambitions are met permanently or abandoned.

The next great political evolution will come when it comes. Weakening western style democracies by destroying the idea of citizenship and the nation-state will only serve to strengthen the tribalisms that are left over. Which would be religion and ideology. To which I say, again, no thanks!

Kevin Schnaper
Kevin Schnaper
14 years ago

I disagree with your view that the U.S. constitution tacitly anticipates some kind of universal political citizenship. I think that’s really a stretch. The terms “the people” and “person” are used throughout the founding documents and it’s obvious the American People are the referrents. “We the people” is the very first phrase out of the baby’s mouth.

Furthermore, the preamble, “We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty, to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America,” is making it fairly evident that it is the United States and it’s people that will be referred to in the constitution to follow. This statement of intent would naturally include the amendments. So any vague or general statement to follow, even in the amendments, should undoubtably be read in the manner most favoring the intent laid out in the preamble, rather than be interpreted through some modern universalist prism.

Where citizenship is specifically mentioned, the case is even more solid against your view. The fourteenth amendment states; “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”. That seems pretty definitive to me.

To put this totally to rest, we know that all the original debates and supreme court cases that referred to the 14th amendment also confirmed that, in Sen. Jacob Howard’s words, the clause “will not, of course, include foreigners.”

You disagreed with my statement: “Weakening western style democracies by destroying the idea of citizenship and the nation-state will only serve to strengthen the tribalisms that are left over.” You seem to suggest instead that a universal political citizenship will strengthen western style democracies.

My point in refutation was, your idea weakens the idea of sovereignty. And weak sovereignty results in a weakened ability of law enfocement to protect its citizens. I give as an example the notion that under your system any criminal can simply dump his citizenship for a more lenient country in order to escape the laws of the country in which he committed his crime. Once larger law structures break down, lawlessness begins to take hold. When that happens people will tend to seek security in the strength of more basic tribal structures, such as religious and ideological groups. Again, this is a recipe for disaster. What makes the western world go round is not liberty. But the combination of law and liberty.

cam
cam
14 years ago

I disagree with your view that the U.S. constitution tacitly anticipates some kind of universal political citizenship.

The bill of rights doesn’t discriminate, it is focused on the individual, not the citizen:

IV – The right of the people to be secure in their persons, houses, papers, and effects, against …

V – No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense …

VI – In all criminal prosecutions, the accused shall enjoy the right to a spee …

Kevin Schnaper
Kevin Schnaper
14 years ago

Yes, I know what these amendments say. But they shouldn’t be taken out of context. See my previous post.

Also when the second amendments says: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Does that mean that the right of foreigners to bear arms in the united states is a protected right? I think not.

Unless you’re joking? Is this a joke?