Institutionalized Torture: Can It Ever Be Morally Justified?

Torture is one of the most uncomfortable topics in moral philosophy. It forces us to confront a direct clash between protecting human dignity and preventing catastrophic harm. While the prohibition of torture is a peremptory norm in international law – meaning it is forbidden under all circumstances – philosophers continue to disagree about whether there are extreme situations where it could be morally defensible. This tension becomes even more fraught when we move from individual acts of torture to the question of whether states should build institutions and legal frameworks to authorize it. Can institutionalized torture ever be morally justified? The answer depends on which ethical framework you adopt – and how much weight you give to real-world consequences.

The philosophical battleground: deontology vs. consequentialism 🔗

The debate over the morality of torture is most often framed as a contest between two major ethical traditions: deontology and consequentialism. Understanding how each approaches torture is essential to grasping the broader argument about institutionalization.

The deontological position 🔗

Deontological ethics judges the morality of actions based on whether they conform to moral rules or duties, not on their consequences. The word itself comes from the Greek deon, meaning duty. For a deontologist, certain acts are inherently wrong – and torture is one of them.

Immanuel Kant’s moral philosophy provides the clearest foundation here. His categorical imperative demands that we treat people as ends in themselves, never merely as means. Torturing someone to extract information does exactly what Kant forbids: it reduces a human being to a tool for achieving some other goal. Even if a suspect holds information that could save thousands of lives, the deontologist maintains that deliberately inflicting severe suffering violates a fundamental moral principle that cannot be overridden by any calculation of benefits.

Thomas Nagel, one of the most prominent philosophical opponents of torture, has argued that certain acts are inherently wrong regardless of their outcomes. His view holds that the moral corruption involved in deliberately causing extreme suffering makes torture impermissible, even when it might save lives. The key point for deontologists is that moral rules should apply universally – including to the most despised individuals – because they reflect principles of common humanity.

The consequentialist position 🔗

Consequentialists take the opposite approach. For them, the morality of an action depends entirely on its outcomes. The classic utilitarian formulation, rooted in the philosophy of Jeremy Bentham and John Stuart Mill, asks a simple question: does the action produce the greatest good for the greatest number?

Under this logic, if torturing one guilty person could save the lives of thousands of innocent people, the consequentialist would argue that torture is not only permissible but morally required. The suffering inflicted on one individual is outweighed by the suffering prevented for many. This reasoning is central to what philosophers call the ticking bomb scenario – a hypothetical in which a captured terrorist knows the location of a bomb set to detonate in a crowded city, and torture is the only way to extract that information in time.

The ticking bomb scenario has become the dominant thought experiment in the torture debate. It appears straightforward on the surface: surely saving thousands of lives justifies harsh treatment of one guilty person? But as we will see, this seemingly simple calculation conceals deep problems – both philosophical and practical.

The ticking bomb scenario: powerful but flawed 🔗

The ticking bomb hypothetical was popularized by Michael Walzer in his 1973 essay on political dirty hands. It asks us to consider a leader who must decide whether to torture a captured rebel who knows the location of hidden bombs. The emotional force of this scenario is undeniable – most people, when confronted with it, feel the pull of the consequentialist argument.

However, critics have identified several serious weaknesses in this thought experiment. First, it assumes a level of certainty that rarely exists in the real world. The scenario presupposes that we know the suspect is guilty, that they definitely possess the information, and that torture will produce accurate intelligence. In reality, recent psychological and neuroscientific research has shown that torture often fails to produce reliable information. Under extreme pain, people tend to say whatever they think will make the suffering stop, regardless of whether it is true.

Second, the scenario treats torture as a one-off moral decision rather than a practice embedded in institutions. This is a critical distinction. A philosopher sitting in an armchair can contemplate a single instance of justified torture. But in the real world, torture does not happen in isolation – it happens within bureaucracies, security agencies, and military structures. And this is where the question of institutionalization becomes unavoidable.

The risks of institutionalizing torture 🔗

Even if one concedes that torture might be morally defensible in a single, extreme case, the leap from individual moral permission to institutional practice is enormous – and fraught with danger.

The slippery slope from exception to routine 🔗

One of the strongest arguments against institutionalized torture is the slippery slope problem. History shows that once torture is authorized, even under narrow conditions, it tends to expand far beyond its intended scope. The Abu Ghraib prison scandal in Iraq is a stark example. What began as authorized “enhanced interrogation techniques” at the highest levels of government devolved into widespread abuse by low-level personnel who interpreted the permission broadly.

As retired generals Charles Krulak and Joseph Hoar wrote, when nations try to engage in limited torture only for extreme cases, the abuse tends to spread rapidly, with every captured prisoner becoming a potential ticking bomb in the eyes of interrogators. The rare exception quickly becomes the rule.

Power, corruption, and democratic erosion 🔗

Institutionalizing torture also creates dangerous concentrations of power. When a state grants itself the legal authority to inflict severe pain on individuals, it fundamentally alters the relationship between government and citizen. Liberal democracies are built on the principle that the state’s power over individuals has limits. Torture, by its very nature, removes those limits entirely – the torturer has absolute power over the victim’s body and mind.

Many liberal political philosophers, including David Luban and Jeremy Waldron, have argued that torture is fundamentally incompatible with liberal democratic values. Waldron in particular has stressed that the legal prohibition on torture serves as an “archetype” of law – a foundational principle that shapes the entire character of a legal system. Once you remove that archetype, the moral authority of the entire legal framework is compromised.

There is also the problem of who decides when torture is justified. Any institutional framework requires human beings to make judgments about when the threshold has been met. Those judgments are inevitably influenced by political pressure, institutional culture, and personal bias. The result is a system that is prone to abuse, no matter how carefully it is designed.

Moral absolutism: Brecher, Shue, and the case against all torture 🔗

Some philosophers reject the very premise that torture could ever be justified, under any circumstances. This position, known as moral absolutism about torture, has been defended most prominently by Bob Brecher and Henry Shue.

Brecher, in his influential book Torture and the Ticking Bomb (2007), argues that the ticking bomb scenario is a philosophical fantasy that bears no resemblance to real-world situations. He contends that the scenario functions as a piece of intellectual manipulation – it creates extreme emotional pressure to concede a principle that, once conceded, will be exploited far beyond the narrow case that justified it. Brecher maintains that torture represents a fundamental attack on human agency and dignity that no circumstance can justify.

Shue’s contribution to this debate is equally significant. In his foundational 1978 essay in Philosophy and Public Affairs, Shue examined the moral structure of torture and concluded that it is categorically wrong because it targets someone who is completely defenceless. Unlike combat, where both sides can fight, torture involves the deliberate infliction of suffering on a person who has no capacity to resist. Shue later described the ticking bomb scenario dismissively as “torture in dreamland,” emphasizing its disconnect from any plausible real-world situation.

Together, Brecher and Shue represent a tradition that views the absolute prohibition on torture not as naive idealism but as a necessary moral boundary. Their argument is that some lines simply should not be crossed – and that the consequences of crossing them are worse than the consequences of holding firm.

Alan Dershowitz and the case for regulated torture 🔗

On the other side of this debate stands Harvard Law professor Alan Dershowitz, who has proposed what he calls “torture warrants.” Dershowitz does not argue that torture is morally good. He insists that he personally opposes it. But he makes a pragmatic argument: torture is going to happen whether we authorize it or not, so it is better to regulate it than to leave it hidden and unaccountable.

Dershowitz’s proposal, first advanced shortly after the September 11 attacks, would require government agents to obtain a judicial warrant before using coercive interrogation techniques. The idea is to bring torture into the open, create accountability, and limit its use to genuine emergencies. As he argued, the existing system results in torture happening secretly, carried out by low-level officials with no oversight, while senior officials deny any responsibility.

The ACLU and other civil liberties organizations rejected this proposal firmly. Their objection was not about judicial oversight per se – it was that torture should be prohibited categorically, with no exceptions. Granting legal permission for torture, even under strict conditions, legitimizes a practice that international law has declared absolutely forbidden.

Legal scholar Oren Gross has offered an interesting middle ground, which he calls pragmatic absolutism. Gross agrees that the legal ban on torture should be absolute. However, he acknowledges that in truly catastrophic circumstances, public officials might act outside the legal order – and should then face legal consequences for their actions. This approach preserves the integrity of the absolute prohibition while recognizing that real-world moral dilemmas do not always have clean solutions.

Law vs. morality: the unresolved tension 🔗

One of the deepest challenges in the torture debate is the gap between legal frameworks and moral reasoning. International law is clear: the United Nations Convention Against Torture prohibits torture absolutely, with no exceptions for emergencies or national security. This legal absolutism reflects a moral judgment that torture is fundamentally incompatible with human rights.

But moral philosophy is not as tidy as law. Consequentialists can construct scenarios – however unlikely – where the moral calculus seems to favor torture. Threshold deontologists, who believe that moral rules can be overridden when the stakes are high enough, also create space for exceptions. The Stanford Encyclopedia of Philosophy notes the difficulty of setting any threshold: why should the line be drawn at a thousand lives rather than nine hundred? And once you accept that there is a threshold, the absolute prohibition loses its force.

This tension between legal certainty and moral complexity is not easily resolved. The law needs clear rules that can be applied consistently. Moral reasoning, by contrast, deals in nuance, context, and competing values. When these two systems collide – as they do in the torture debate – the result is a permanent state of intellectual tension.

The institutional dimension of moral reasoning 🔗

An often-overlooked dimension of this debate is how institutions shape the moral reasoning of individuals within them. Research in social psychology – from the Milgram obedience experiments to the Stanford Prison Experiment – shows that institutional contexts powerfully influence individual behaviour. When security agencies normalize harsh interrogation, individual officers may gradually accept practices they would otherwise reject. This institutional creep is one of the strongest practical arguments against any form of legalized torture, even under supposedly strict conditions.

Where the debate stands today 🔗

The philosophical debate over institutionalized torture remains unresolved. Deontologists and moral absolutists maintain that torture is always wrong, that the ticking bomb scenario is misleading, and that any form of institutionalization would erode democratic values and human rights. Consequentialists and pragmatists counter that refusing to engage with extreme scenarios is its own form of moral failure – that sometimes the right thing to do is the terrible thing.

What is clear is that the question cannot be answered purely in the abstract. Real-world evidence about how torture actually functions – its unreliability as an intelligence-gathering tool, the tendency of limited permissions to expand, the corrosive effect on institutions and societies – must inform our philosophical conclusions. The weight of this evidence strongly favours maintaining an absolute prohibition, even if individual thought experiments create uncomfortable moral tensions.

What do you think? If a legal system allows exceptions to the ban on torture even in the most extreme cases, can it ever prevent those exceptions from expanding into routine abuse? And does the failure of the ticking bomb scenario to reflect real-world conditions undermine the strongest philosophical case for torture – or is that case still worth engaging with on purely theoretical grounds?

References

1. https://en.wikipedia.org/wiki/Ethics_of_torture
2. https://plato.stanford.edu/entries/ethics-deontological/
3. https://plato.stanford.edu/entries/torture/index.html
4. https://onlinelibrary.wiley.com/doi/10.1111/josp.12494
5. https://humanrightsfirst.org/library/alan-dershowitz-is-wrong-about-torture-again/
6. https://plato.stanford.edu/archives/sum2017/entries/torture/
7. https://ndpr.nd.edu/reviews/torture-and-the-ticking-bomb/
8. https://hls.harvard.edu/today/an-op-ed-by-professor-alan-dershowitz-warming-up-to-torture/
9. https://www.aclu.org/news/national-security/targeted-killing-and-courts
10. https://scholarship.law.umn.edu/faculty_articles/897/