A Pragmatist Defence of the Ban on Torture: From Moral Absolutes to Constitutive Rules of Reasoning
| Published date | 01 October 2016 |
| DOI | 10.1111/1467-9248.12229 |
| Date | 01 October 2016 |
| Author | Mathias Thaler |
| Subject Matter | Articles |
Political Studies
2016, Vol. 64(3) 765 –781
© The Author(s) 2015
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DOI: 10.1111/1467-9248.12229
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A Pragmatist Defence of the Ban
on Torture: From Moral Absolutes to
Constitutive Rules of Reasoning
A Pragmatist Defence of the Ban on Torture:
From Moral Absolutes to Constitutive Rules
of Reasoning
Mathias Thaler
University of Edinburgh
This article seeks to contribute to the growing literature on pragmatism in political theory by revisiting the role of
moral absolutes in politics. More specifically, it proposes the idea that pragmatism can support a particular defence of
the ban on torture. In contradistinction with deontological accounts, it will be argued that the principles underlying
the ban on torture should not be construed as transcendental values that impose external constraints on political action,
but as constitutive rules that emerge from, and are sustained by, a web of intersecting social practices. While
pragmatists vehemently reject the introduction of absolutes in politics, their anti-foundationalist conception of
reasoning crucially hinges on the sustainability of adjustable banisters along which judgements are formed. The article
suggests that the torture prohibition ought to be reinterpreted as one such banister.
Keywords: pragmatism; political violence; torture
Over the past ten years, the reception of pragmatist themes in political theory has been
steadily increasing. This article seeks to contribute to the growing literature by examining
the role of moral absolutes in politics from a pragmatist perspective. Its main purpose is to
contribute to a better understanding of pragmatism via an exploration of recent contro-
versies around torture as a case study.
Can one be a pragmatist about torture without becoming pragmatic about it? Can one
cultivate a fallibilistic mentality with regard to all deliberative processes without endorsing
the position of those who invoke the ‘ticking-bomb scenario’, advocating that sometimes
torturing a suspect is simply the lesser evil? This article will answer in the positive. In doing
so, it will demonstrate that pragmatism’s reluctance to permit moral absolutes in the
political forum should not be equated with an acquiescent attitude towards torture. While
pragmatism cannot support an absolute ban on torture, it may furnish a contingent
argument for such a ban that is of considerable strength.
As shall be maintained in this article, pragmatists are correct in stressing the dangers of
absolutes in politics; yet, their fallibilistic mentality regarding all processes of reflection and
deliberation commits them also to endorsing relatively, not absolutely, firm principles of
social and political organisation. The article hence extends an invitation to envisage the
torture prohibition not as a transcendental norm that imposes external constraints on the
behaviour of individual or collective agents, but rather as a constitutive rule of reasoning,
emerging from, and sustained by, an intersecting web of social practices.
The majority of those who have grappled with torture apologists invoke inviolable
goods, such as human dignity, in order to undermine the utilitarian calculus set into motion
by thought experiments, like the ‘ticking-bomb scenario’ (for an alternative, virtue-ethical
doi: 10.1111/1467-9248.12229
POLITICAL STUDIES: 2015
© 2015 The Author. Political Studies © 2015 Political Studies Association
Article
766 Political Studies 64 (3)
rebuttal of torture apologists, see Gordon, 2014). Whether they subscribe to a Kantian
system of secular morality (Habermas, 2010), or to a religiously inspired code of ethics
(Luban, 2009), these champions of an absolute ban on torture claim that not even the
highest ends (such as saving the innocent) license the use of all means (such as torturing the
suspect).
These attempts to respond to the consequentialist challenge have been fruitful in many
respects, and I do not intend to detract from their accomplishments. However, the initial
intuition behind this article is that deontological accounts are likely to run into serious
problems once they confront consequentialists on their own playing field. Instead of
accepting the challenge on the terms set by consequentialists, the suggestion is to shift the
debate towards examining what is actually at stake with the torture debates. To motivate
this shift in attention is the article’s ambition.
In the following, I pursue two more specific goals. First, I aim to construct an argument
for the ban on torture from pragmatist premises. In working through the controversy
around the prohibition, focusing in particular on the ticking-bomb scenario, I hope to push
the boundaries of what political theorists in the pragmatist tradition feel confident engaging
with. While recent discussions have mostly revolved around pragmatism’s potential to
renew democracy (Talisse, 2014), it is perhaps time to expand the horizon of
problematisations and study in which other areas of normative political theory it can be put
to use. Second and simultaneously, I seek to outline a defence of the torture prohibition
that is based on the notion of ‘constitutive rules of reasoning’, developed through an
engagement with Robert Brandom’s work, which proffers a justification for the ban that
is not grounded in some form of deontology, but rather in the social practices shared by
a community of reasoners. In this sense, my second goal is decidedly revisionist – it strives
to shift the academic debate towards a new way of seeing the ban on torture as a
constitutive element of liberal democracy.
The argument proceeds as follows. The article begins by presenting a first version of the
pragmatist case against moral absolutism. In concentrating on the work of Richard
Bernstein it singles out an author who has highlighted the detrimental effects absolutes can
have on public deliberations, and also points to some inherent issues with the wholesale
rejection of absolutes. The article then moves on to give an account of recent debates
around torture in normative political theory. These debates will be rehearsed by
foregrounding the divide between absolutist and consequentialist positions and by scruti-
nising a recent taxonomy of how absolutes function. Finally, the article will probe the
pragmatist tradition’s potential to oppose torture. The main source of inspiration here will
be Brandom’s account of reasoning as a social activity.
This introduction cannot end without a caveat about the article’s limitations: since the
main goal is to widen the scope of pragmatism, much interpretive energy will be dedicated
to close readings of authors within this tradition. As a consequence, the examination of the
post-9/11 torture debates will, by necessity, have to remain limited, concentrating entirely
on questions of justification and leaving aside several significant issues, such as the
psychological and somatic trauma suffered by torture victims (Campbell, 2007; Mollica,
2004) or the historical transformations of torture as a tool of interrogation (Langbein,
1977). Obviously, I do not wish to suggest that these issues are irrelevant for the topic
2MATHIAS THALER
© 2015 The Author. Political Studies © 2015 Political Studies Association
POLITICAL STUDIES: 2015
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