Exercise 1B. Law and Rights

While law plays an important role in helping co-ordinate our activities in society, that is not law’s only function. Law also endows us with rights, which allow us to demand that other people not act in ways that might harm our fundamental interests.

There are ongoing debates about: (1) what rights the law gives us against other people; and (2) what the rights the law should give us against other people. There is one right that we clearly enjoy under the law, which is a right not to be tortured. This right is recognised by almost all civilised legal systems. For example, under Article 3 of the European Convention on Human Rights:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

(All public bodies in the UK are required to abide by Article 3 under the Human Rights Act 1998.) The reference to ‘inhuman or degrading treatment’ in Article 3 echoes the Eighth Amendment to the US Constitution, which provides that:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article 2 of the 1985 United Nations Convention Against Torture provides that:

(1) Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

(2) No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

(3) An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 1 defines ‘torture’ as: ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’

Despite the widespread legal unanimity on the unacceptability of torture, there is ongoing academic debate as to whether torture might, in certain circumstances, be justified. This debate tends to focus on ‘ticking bomb’ scenarios where a nuclear device is primed to explode in a major city and a prisoner in police custody knows where the device is, but is refusing to disclose its location. (For a very good dramatisation of such a scenario, you should watch the film Unthinkable, starring Samuel L Jackson and Michael Sheen.) Read the following two articles on the legitimacy of torture in a ‘ticking bomb’ scenario:

Henry Shue, ‘Torture in dreamland: disposing of the ticking bomb’

Alan M Dershowitz, ‘The torture warrant’

Summarise their articles in not more than 1,000 words each. Whose arguments do you find more convincing?

In light of these articles, consider the following scenario (which is drawn from Nick McBride and Roderick Bagshaw, Tort Law, 4th ed (Pearson Education, 2012), p 51, and is referred to there as the ‘Dead Man Walking Problem’):

Evil invites Patsy round to his house, and serves her with a glass of wine when she arrives. When Patsy drinks the wine, she remarks that it has a funny taste. Evil tells Patsy that he poisoned it with a toxin that invariably proves fatal within two hours of being drunk. Evil further tells Patsy that he has left the antidote to the poison at a location within a 15 minute drive of the hotel where Patsy’s best friend is currently staying. Evil hands Patsy a gun and says that he will tell Patsy where the antidote is once Patsy visits her best friend in his hotel room and shoots her best friend dead. Patsy refuses to do any such thing.

How far should the law allow Patsy to go in trying to extract from Evil the information about the whereabouts of the antidote? In thinking about your answer, also think about how much force you think Patsy should be allowed to use against Evil if: (1) Evil invites Patsy round to his house and attempts to murder her on the spot; and (2) Evil invites Patsy round to his house and when she arrives, attempts to rape her?

Next page: Exercise 1C. Law and Power