Torture in the context of law and morality Essay Example

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In Australia and globally torture, prevalence has been on the rise due to rise in terrorism and the war on terror. In pre-medieval times, torture was permissible and its aim was to place the victim in a vulnerable position to reveal secrets or information. In wars, torture was acceptable against an enemy soldier to reveal secrets about their plans and wars to sabotage the enemy. However, human rights activists after the first and second World Wars strongly condemned torture and listed it as a crime against humanity, attaining the status of jus cogens. They alleged existence of a supreme law that prohibited acts of torture and perpetration of such acts Further Mayerfiled (2008) describes torture as ‘cruelty … combined with cowardice’.

Torture classified as a heinous crime in customary, domestic and international law instruments, is not usually wrong or misguided and there are states that have considered being a necessity to protect the interest and security of the state. According to Beccaria (2003), he attributes torture to be a ‘residue if the most barbarous acts of centuries’ and it must be important in human rights movement. Torture in itself plays a role in turning the victim into a person isolated, overwhelmed, terrorized and humiliated, robbed of their dignity equalized to murder or capital punishment (Sussman, 2005, p.3).

This paper analyzes the place of torture in relation to law and morality in Australia. It considers the legislation on torture, permissibility and the position taken by Australian courts in determining the morality and legality of torture perpetrated by an individual or a state.


In society, the questions that follow a person’s action depend on whether it is a custom, legal practice or whether it is right or wrong. Morals refer to the good, bad, right, wrongs in relation to human conduct and behavior. In defining morals the elements of what is moral is described as; good-is the action taken decent, integral or righteous, right-correct, true, precise or wrong-incorrect, immoral, dishonest and unethical (Murphy, 2005). In determining whether an action is right or wrong, then morality is a crucial measure of the threshold of what is right and what is wrong. The opposition of torture is drawn from secular morality of modernity and in religious traditions that human dignity must be respected (Green, 1970).

There is a moral obligation imposed on citizens that they ought to obey the law and this encompasses the law against torture (Murphy, 2005, p.242). In pre-medieval and modern society, torture was acceptable legally and morally. Mc Mahan (2005) he states that’ the morality of torture is akin to capital punishment that imposed on serious crimes. However, unlike capital punishment, torture on person is deliberate without a necessary determination of whether the person had done a wrong, making it immoral. An immoral person knowingly violates the human moral standard because he or she has no moral sense.

In Australia, one questions actions of whether killing is wrong, misrepresentation and undercutting are wrong. One would classify, torture bordering on what is the morality that guides human behavior in relation to their conduct towards each other. In relation to views of an orthodox Kantian;

“What is fundamentally objectionable about torture is that the victim, and the victim’s agency, is put to use in ways to which she does not or could not reasonably consent. The fact that it is pain that is characteristically involved is of only indirect importance.” (Sussman , 2005, p. 196).

Morality dictates that law must categorically ban torture. A hypothetical case would be important to highlight whether an action is moral or immoral. A person has aggressive anger and commits a felony that injures and threatens the very existence of a person. While performing such an act, on je intentionally uploads the details of the ordeal on the internet and even claims that it is not the first time and it is his specialty. According to the law, it will focus on the threat the person presents to other people and many of them would agree that such a person deserves hanging. The death is justifiable since it would be retributive, punish the wrong doer and deter others from engaging in such heinous acts. It is almost impossible for a reasonable person to engage in acts of torture, it is unconceivable and unthinkable if it is a means of achieving an end. Torture is moral issue since most if not all people regard torture as despicable.

Morality and the Law

Law contrasted to morality is attributable to someone either individually or collectively, but it has moral aims. In enacting a law, it must be able to be just, serve the common good and aim to justify coercion (Dworkin, 1986, p 93). The law essentially does not have moral aims but at times morals informs the creation of rules and laws.

The law and morality have a relationship, and morality is the essence for existence of laws. However, morality and legality of actions depart in cases where there is no form of punishment meted on an immoral act. Torture for instance is immoral since it is similar to killing of a person, however despite being immoral there are times when people derogate from the legality of the action and consider it correct. In order for laws to be significant, then morality has to be included and one operates on the assumption that even if the law was to be done away with, then not all people would go out to steal, rape and even kill. Law and morality need each other, and one can ideally state that the law is a public expression that provides sanctions for social morality (Gross, 2007).

Australia has enacted legislation on torture that include the Crimes (Torture) Act 1988 (Cth), the Geneva Conventions Act 1957 (Cth) and the Criminal Code. The Crimes Torture Act prohibits torture as a perementory norm in international law from which no derogation is permissible and acts of torture can never be justified either under a policy or under official act. In this regard, one can reasonably assert that morals exist in society, but legislation is necessary to assert sanctions on those violating crimes considered immoral.

Torture is the ‘intentional infliction of extreme physical suffering on an unconsenting, defenceless person for breaking their will’ (Seumas, 2005, p.179). The purpose for torture is unimportant but sufficient if a person experiences violence to self. It has been stated that there is no other practice except slavery that has been condemned in law and human convention as torture (Cohan , 2007). Torture relates to a distinct kind of wrong that is not evident in other forms of violence such as coercion, whereby the victim is in a position of vulnerability and exposed while the torturer is in perfect control and inscrutabinility. Torture is a despicable means to an immoral end, which even if it is to protect the public, it is still wicked, loathsome and vile as against the wrong doer (Harrell & Sharron, 2008).

Torture is modern times are perpetrated by state officials seeking information on issues that relate to security and national interest. David Luban writes;

‘The real torture debate is not about whether to throw out the rulebook in exceptional emergencies but rather what the rulebook says about ‘ordinary interrogations’ whether one can shoot up Qatani with saline solution to make him urinate on himself or threaten him with dogs in order to find out whether he ever met Osama Bin Laden’ (Luban, 2008).

According to Sussman (2005, p.197) torture justifiable in theory but not in practice unlike killing, that it is violates a basic principle of just combat: the prohibition against attacking the defenseless. Henry’ Shue (2005) provides the case of ‘ticking bomb’ whereby a terrorist plants a nuclear bomb in a city and the only way the state can get information to prevent its detonation is through torturing the suspect. The question is whether the act is permissible since it would be crucial to protect the lives of more people than placing the entirety of the population to effects of nuclear energy.

Torture is wrong since it fails to respect the dignity of its victim and that it deliberately perversion of dignity and that is what makes it offensive to any morality that honors it (Sussman, 2005 p.199). Scholars argue that torture is acceptable morally especially if it is a necessity against suspected terrorists. Torture is justified if its perpetration is closely linked to the protection of self, that is it is reasonable to inflict a level of harm on a perpetrator of crimes to save the life of an innocent person for instance in hostage situations.

The emergency or immediacy of a situation would necessitate and justify acts of terror. The justification of torture would derive its validity if reasonably proved that the act was a just form of self-defence rather than an act of retribution. The ‘supreme emergency’ whereby an official can take actions that override the rights of innocent people and shatter the war convention. It is also important to state that torture is justified if the deepest values and collective survival of humans is in imminent danger. However, the propensity of the torture must commensurate with the imminence and nature of the threat and it must be of an unusual and of most horrifying act.

Torture under section 11 of the Crimes (Torture) Act 1988 (Cth), states that ‘it is against morals and the law to absolve a torturer or individual from criminal responsibility’. The case of Habib v Commonwealth of Australia [2010] FCAFC 12 is a perfect example of torture and the judicial interpretation of acts of torture perpetrated by state officials. The facts of the case are that Habib an Australian Citizen detained at Guantanamo Bay until his release in 2005 was inhumanely treated and tortured on allegations of being a terrorist. Jagot J stated that it is settled law that consensual nature and international law prohibit torture and the Australian law provided for the standards applicable in this situation. The case presents exceptions of accountability in relation to torture. States can justify torture in cases where immunity can act as a defence to human rights violations.


In conclusion, perpetration of torture either by a sovereign or by an official acting in their official capacities under customary, domestic and international law is impermissible. Morally and legally, there can be no derogation from the prohibition of torture since this is a violation of human dignity and it is amongst the most heinous crimes above murder. However, increasing debate on the legality of torture is attributable to terror and suicide bomb attacks to nations. Morally torture is wrong since it does not reflect the actions of a reasonable human being and it is generally against the law of nature. One would question, ‘whose morality are we following?’ the answer is simple, man is expected to act towards each other with civility and not inflicting pain or suffering on another human being. Morals and the law are inseparable, that is where the law is silent on the legality of an action, and morality would determine whether the action is right or wrong. Torture is justified in circumstances where it is to protect the general population, to avert a greater calamity or an emergency. Torture is wrong, both morally and legally, and there can be no justification, but an exception presents itself whereby curtailment of a person’s right is to protect the interest, security and the rights of others.


<>viewed 12 September 2013, European Journal of International Law, Batros, B & Phillippa ,W 2010, ‘Habib v Commonwealth of Australia: A twist on Actions Against State Officials of Torture’,

Beccaria, C 2003, On Crimes And Punishments And Other Writings.

, vol. 41, pp.1588 Valparaiso University Law ReviewCohan, J.A 2007, ‘Torture and Necessity Doctrine’,

Luban, D 2005, ‘Torture, American-Style’, Washington Post, 7 November,viewed 13 September 2013, <>

Dworkin, R 1967, ‘The Model of Rules’, University of Chicago Law Review vol.35, pp.14-46

, vol. 20, no.4, pp. 422-447. The University of Toronto Law JournalGreen, LC 1970, ‘Law and Morality in a Changing Society’,

, vol.3, no.1, pp. 35-54. Law, Culture and the HumanitiesGross, O 2007, ‘Torture and the Ethics of Responsibility’,

Habib v Commonwealth of Australia [2010] FCAFC 12

Harel, A &Sharron,A 2008, ‘What is really wrong with Torture’, Journal of International Criminal Justice , vol.6, no.2, pp.241-259.

231.vol.37, pp.Case W. Res, J of Interenational Law Law, Henry, S 2005, ‘Torture in Dreamland: Disposing of the Ticking Bomb’,

, vol. 22, no. 2, pp.109 Public Affairs QuarterlyMayerfield, J. 2008, ‘In Defense of an Absolute Prohibition of Torture’,

Case W. Res. J. Int’l L vol.37, pp.241McMahan, J 2005, ‘Torture, Morality and Law’,

San Francisco Law Review Mirko, B & Julie C 2013,‘Not enough Torture in the world? The Circumstances in which torture is morally justifiable’,

, vol. 24, pp.239-262Law and PhilosophyMurphy, C 2005, ‘Lon Fuller and the Moral Value of the Rule of Law’

vol.19, pp.2 International Journal of Applied Philosophy, Seumas, M 2005, ‘Is Torture Ever Morally Justifiable’,

, vol. 33, no. 1,pp.3Philosophy and Public AffairsSussman, D 2005, ‘What’s Wrong With Torture?’,

Zachary, RC 2009, ‘Torture, Necessity , and Supreme Emergency: Law and Morality at the End of Law’ Valparaiso University Law Review, vol.43 , pp.1592, viewed 13 September 2013, <>