Abolishing torture

Why has the infliction of physical pain now become scandalous? A well-known part of the answer is this progressivist story: two centuries ago critics of torture like Beccaria and Voltaire recognized how inhuman it was, and how unreliable as a way of ascertaining the truth in a trial.

In his brilliant study Torture and the Law of Proof, John Langbein has provided a partial explanation. He demonstrates that torture was pro­scribed when the Roman canon law of proof—which required either con­fession or the testimony of two eyewitnesses to convict—declined in force in the seventeenth century. Increasing resort to circumstantial evidence se­cured convictions more easily and speedily. The abolition of judicial torture was thus in effect the proscription of an extremely cumbersome and lengthy procedure that was now coming to be regarded as more or less re­dundant. Langbein implies that the moral truth about judicial torture was linked to the prior construction of a new concept of legal truth.⁷

When torture was the object of vigorous polemic in the eighteenth century, Jeremy Bentham came to the conclusion that the pain of torture applied for instrumental purposes is easier to justify than the suffering in­flicted in the name of punishment.

It is not Benthams apparent refusal to distinguish between voluntary and involuntary subjection to pain that should be noted here. It is the more interesting idea that subjective experiences of pain can be objectively compared. This idea is crucial for the modern understanding of “cruel, in­human and degrading treatment” in a cross-cultural context, although lib­erals today would strongly reject Benthams view regarding the occasional preferability of torture to imprisonment. For it is precisely some notion of comparability in suffering that makes of long years in prison (including solitary confinement) a "humane” punishment and of flogging an “inhu­mane” one, even though the experience of imprisonment and of flogging are qualitatively quite different.

In Discipline and Punish Foucault notes that in the nineteenth cen­tury imprisonment was compared favorably to other forms of legal pun­ishment mainly because it was regarded as the most egalitarian.⁹ This was a consequence of the philosophical doctrine that freedom was the natural human condition. Penal reformers reasoned that since the desire for liberty

7. J. H. Langbein, Torture and the Law of Proof. Europe and England in the Ancien Regime, Chicago: University of Chicago Press, 1977.

8. See the two fragments first published as “Bentham on Torture” in Ben­tham and Legal Theory, ed.

9. SeeM. Foucault, Discipline and Punish, New "York·. Vintage Books, 1979, p. zyz.

Reflections on Cruelty and Torture 109 was implanted equally in every individual, depriving individuals of their liberty must be a way of striking at them equally—that is, regardless of their social status or physical constitution. For just as fines were easier for the rich to pay, so physical pain could be borne better by the more sturdy. No form of punishment accorded so precisely with our essential humanity, therefore, as imprisonment did. That legal incarceration was considered to be equitable contributed to the sense that physical punishment was gratu­itous. For this reason although modern liberals must regard Bentham wrong in the conclusion he reached about torture, they must consider him right to have endorsed a quantitative comparison of very disparate kinds of suffering. It is not difficult to see how the utilitarian calculus of pleasure and pain has come to be central to cross-cultural judgment in modern thought and practice. For by a reductive operation the idea of a calculus has facilitated the comparative judgment of what would otherwise'remain incommensurable qualities.^[77]