The apologists cannot see the difference between self-defence and torture because they are concerned only about outcomes and never about means. For Bagaric and Clarke, it is simply a mathematical calculation: a tortured terrorist versus one innocent life or many. They even offer us a comforting formula at the end: W+L+P/T x O = torture.[71] This effort at calculation no doubt underpins any argument for the expediency of torture in a ‘state of exception’.[72] It is, of course and as they argue, a version of utilitarianism.[73] The authors are at pains to defend the validity of utilitarianism as a moral theory. But they do so dishonestly because they have made no serious effort to take into account the actual costs of the balancing act they propose. In most versions of the utilitarian calculus, which one hears in defence of such extreme measures, and Bagaric and Clarke’s version is no exception, the real benefits are a sheer fantasy and the real costs are wholly and shamefully ignored.
Against utilitarianism, there is not much to say that has not been said many times before. Ethics means that there are some things you do not do even though it might advantage you (or the whole society) to do them. Ethics means that we impose limits on our actions that cannot be reduced to a calculation about winners and losers. Slavery, for example, would not be less wrong if more people gained from it than lost. It would not be less wrong even if we only enslaved ‘wrongdoers’. The wrong is intrinsic and irredeemable. It is not negotiable in terms of costs and benefits.[74] Bagaric and Clarke argue that the problem with absolutist theories is that there is no fundamental virtue that grounds them.[75] This misses the point. The particular instances are the virtues. The prohibition of slavery is one, irreducible to some other more abstract principle. The prohibition against torture is another.
So too, human rights protect not just good people but all people, and not just some of the time but all of the time: they are not to be weighed up, or sacrificed. It is in the nature of a human right that it is incalculable. We might feel that certain people have acted in such a way that they no longer deserve to be treated humanely, and if society as a whole were to gain by torturing them a little, then we should be allowed to do so. But human rights are not something we deserve. They protect each of us from abuse by protecting all of us unconditionally. These rights recognise as inviolable the core of our autonomy as human beings, regardless of the temptation or the need to violate them. The argument is undoubtedly partial and problematic[76] and Bagaric and Clarke are right to draw our attention to how nebulous, fluid and ambiguous the claims of rights (like any theoretical claim at all) often are.[77] Nevertheless, if there is anything at all that we have a right to protect against the government and against all of society, it is not just our bodily integrity but our sanity, our very self. That is the absolute right of which torture threatens to deprive us. Simply in terms of ‘weighing up’ the costs and benefits, in order to evaluate seriously the prohibition against torture in utilitarian terms, rather more than a fingernail is at stake.
Torture is wrong under all circumstances, not because it leads to certain bad outcomes, but for no reason: simply and inherently. This is not a perverse argument. Love, for example, is good not because it might lead us to wealth or happiness, but for no reason.[78] It just is. In fact, to continue to look for reasons, to ask ‘what is love good for?’ or ‘how does loving someone benefit me?’ is the logic of a psychopath. Now if Bagaric and Clarke, amongst many others, cannot see the inherent wrong of torture, it is hard to see how to communicate with them. But let me suggest two possible approaches intended to communicate what I see as intrinsically true to those who clearly do not see it that way.
The first approach is literary. When Voltaire was a relatively young man, Jonathan Swift, author of Gulliver’s Travels, wrote ‘A Modest Proposal’ of his own. What will we do about the poor children of Ireland, he asked, who are such a burden to their parents?
I have been assured by a very knowing American of my acquaintance in London, that a young healthy child well nursed is at a year old a most delicious, nourishing, and wholesome food, whether stewed, roasted, baked, or boiled; and I make no doubt that it will equally serve in a fricassee or a ragout.[79]
There’s a solution to famine for you, and what after all is wrong with it? If children seem too innocent, we could just eat those in the reformatories, wrongdoers each and every one. Without a sense of our limits, the calibration of costs and benefits is unstoppable: and we shall be led to commit atrocities. It strikes me that the current modest proposal for torture makes the same mistakes: slipping seamlessly and without argument across fundamental distinctions, ignoring the social context it echoes, blind to the horrific practical implications of the system it envisages, far too confident of the reliability and accuracy of its own judgments. But Swift’s modest proposal was satire, while Bagaric and Clarke’s is not.
The second approach is historical. Both proposals, above all, display that dangerous human quality of arrogance, which assumes that we can and should weigh up one person’s pain and a community’s fear, against another’s life. It is the economists’ approach to life and the tyrant’s approach to politics: everything is a calculation, and no calculation is too ambitious to be foresworn. The use of such formulae will offer an easy answer to all our problems, but the easy answers are usually wrong. We know all about the Western history of state-sanctioned torture, l’amende honorable and the Inquisition. It is not a tradition worth reviving.
Our repugnance is not simply the instinctive and ‘reflex rejection of torture’ that Bagaric and Clarke disparage.[80] Disgust, like shame, is not a pointless emotion. On the contrary, it is an exceptionally powerful way to change the behaviour of people and of communities.[81] A great deal of effort and thought has been expended giving torture the ‘pejorative connotations’ it has today. We have learnt this feeling of disgust over several centuries. Voltaire would weep to read the arguments now being used to justify a new-found tolerance of torture and tyranny. He saw torture and he knew what it smelled like. And he also knew that at some point the arguments must stop so that the disgust might begin. Écrasez l’infâme. Don’t negotiate: wipe it out.
[71] Ibid 613.
[72] G Agamben, State of Exception (K Attell trans of Stato di eccezione, (first published Turin: Bollati Boringhieri, 2003) Chicago: University of Chicago Press, 2005).
[73] Bagaric and Clarke, USFLR, above n 8, 605‑11; J S Mill, Utilitarianism (G Sher (ed), Indianapolis: Hackett, 2001, original work published 1861); P Singer, Practical Ethics (Cambridge: Cambridge University Press, 1993).
[74] J Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971); B Williams, Ethics and the Limits of Philosophy (Cambridge, Mass: Harvard University Press, 1985).
[75] Bagaric and Clarke, USFLR, above n 8, 602.
[76] C Douzinas, The End of Human Rights (Oxford: Hart, 2000); M Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Maxwell Macmillan, 1990).
[77] Bagaric and Clarke, USFLR, above n 8, 597‑604.
[78] See E Levinas, Totality and Infinity (A Lingis trans of Totalité et infi (first published 1961, Pittsburgh: Duquesne University, 1969); E Levinas, Otherwise Than Being (A Lingis trans of Autrement qu’être (2nd ed, 1978) Hague; Boston: M Nijhoff; Hingham, MA: Distributors for the US and Canada, Kluwer Boston, 1981); D Manderson, Proximity, Levinas and the Soul of Law (Montreal; Ithaca: McGill‑Queen’s University Press, 2006).
[79] J Swift, ‘A Modest Proposal’ (1729) in A Modest Proposal and Other Satires (Amherst, MA: Prometheus Books, 1994), 257 at 259.
[80] Bagaric and Clarke claim that when faced with the kind of hypothetical on which their argument is built, ‘not many’ people would find torture unacceptable. But the statistic they cite does not even remotely justify this particular lithe assertion: see USFLR, above n 8, 583 fn 8. If Bagaric and Clarke’s idea of ‘not many’ people is 53 per cent then I fear for the way in which they would put in practice the neat mathematical calculation called ‘The Formula’ they think will clarify for us when torture is justified. The point is not trivial. When investigators justify torture, as when intellectuals interpret statistics, they are prone to see what they want to see, to justify the result they want to achieve.
[81] M Nussbaum, Hiding from Humanity: Disgust, Shame and the Law (Princeton, NJ: Princeton University Press, 2004); J Braithwaite, Crime, Shame, and Reintegration (Cambridge, UK; New York: Cambridge University Press, 1989).