Let’s not be rational about torture

In the absence of constitutional protection against torture, we must ultimately rely on the third, most potent reason why torture is universally and absolutely prohibited: our collective abhorrence of torture as the violation of our common humanity. Torture destroys the moral fabric of our polity. The abused body of the victim is reflected in the devastation of the body politic.

This is, of course, a metaphysical analysis, but it also has physical manifestations. A country that condones torture risks losing its moral authority and political influence on the international stage, as well as its legitimacy in the eyes of its own people - thereby undermining democracy. Yet, the metaphysical aspects of the moral prohibition against torture are no less significant. That many of us had an almost physical revulsion to Professor Bagaric’s argument is a reflection of the way certain legal prohibitions -, such as that against torture, slavery or genocide - can become ingrained into a society’s collective unconscious and operate hand-in-glove with social morality. The connection between law and the visceral attitude towards torture is reflected in the language used by judges to define international crimes such as torture: “repugnant”, “heinous” and “crimes against humanity”.

Our gut reaction against the proposition that torture should be legalised should therefore not be considered as mere ill-informed populism. It reflects much deeper-seated values and legal rules - an emotional intelligence borne of historical experience, and now ingrained into our culture and legal system. As Jeremy Waldron, Professor of Law at Columbia University says, the prohibition of torture now operates as an archetype in our legal system, shared by all participants, and reflecting the spirit of the law.

In conclusion, anything can be rationalised. And without an entrenched Bill of Rights, almost anything can be legislated away, even the most basic human rights. Let us look to our moral instincts and hope they prevail.