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June 18, 2004

Ticking bomb backlash

Happily, blogosphere tires of the "ticking bomb" parlor game. As a utilitarian, I've been playing this game for years. As soon as anyone learns that I'm an unreconstructed Benthamite, out come "Jim and the Indians" with their ticking Nazi bombs. If any good comes of the latest "ticking bomb" rondo, it will be increased sympathy for utilitarians.

These posts sum up exactly why these scenarios get old so fast, the first is by Belle Waring of Crooked Timber, and the second is by Michael of

So, opportunistically, I thought I'd sneak in one salvo before the golden age of ticking bombs draws to a close.

Alan Dershowitz has suggested that torture be legalized but regulated by torture warrants. He argues that torture will always be used if the situation is sufficiently dire. But Dershowitz' argument creates a regress.

He's arguing that torture can't be prevented because would-be torturers won't follow the law. But in a situation as desperate as Dershowitz envisions, why would we expect the torturers to follow the law that says you must get a warrant before you torture someone? The target demographic for this law were the people we couldn't even trust to follow the "don't torture" law. Why should we expect them to follow the "paperwork first, torture later" law.

[An aside: This is a question for the legal scholars and philosophers of law. I know you're out there. Let's say there were torture warrants. If someone was caught torturing without a license, would it be a mitigating factor that she would have been entitled to a torture warrant, based on the gravity of the situation. If so, and if would-be torturers knew this, wouldn't that create a situation more or less like we have now, in which torture is illegal, but we might be lenient towards someone who broke the law under extremely extenuating circumstances?]


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