In Australia today, we accept that a person who has expressed ideas that justify terrorism may be restrained from acting out those ideas. But we would not justify torturing a person suspected of harbouring such notions to force him to reveal them or to reject such ideas. However, surveys in the Western world find that torture to obtain information is sometimes justified. The Prime Minister’s acceptance of torture in the context of the Sri Lankan civil war was as follows: “Obviously the Australian Government deplores any use of torture. We deplore that, wherever it might take place, we deplore that. But we accept that sometimes in difficult circumstances, difficult things happen.” (http://www.abc.net.au/worldtoday/content/2013/s3893068.htm, retrieved 15 Jan 2014).
The Catholic tradition does not have a good record on torture. Pope Nicholas I in 866 condemned both the practice and the judicial institution of torture. However, later torture came to be accepted by Church authorities and theologians. Under the influence of Roman law, torture was first permitted legally by Pope Innocent IV in 1253. This pope allowed the infliction of torture on heretics by the civil authorities and torture had a recognized role in the courts of the Inquisition. Torture was also adopted by secular courts. Pope John Paul II in 1993 condemned physical and mental torture as intrinsically evil. This is a striking example of the development of doctrine; how can we explain it? The failure of the tradition to consistently reject torture can be attributed, apart from human sin, to three factors: Roman Law; a theory of order in the world and the lack of an adequate notion of dignity.
Ancient Roman law accepted torture. When the “barbarians” invaded Europe and the Roman Empire fell, the practice of torture was abandoned. Trial by ordeal was instituted in its place. To prove his innocence an accused had to submit to an ordeal, for example he had to walk a set distance over red-hot ploughshares. If he survived and recovered this was taken as a sign from God that he was innocent. In the eleventh century, with the revival of Roman law, the practice of ordeal was abandoned and torture was reinstated. Judges were instructed to obtain a confession from the accused and to obtain this they could use torture.
Behind this we can discern a complex legal, philosophical and theological theory. God’s judgment on the matter was now no longer sought by examining the results of an ordeal. Instead, ecclesiastical and legal officials sought to examine the contents of the mind of the accused. They no longer looked for blisters on the accused’s feet as indicative of guilt, but for “blisters” or heresies in his mind.
Drawing on Greek thinking, philosophers and theologians held that there was an order in the world. This order expresses the wisdom of God. Human beings could participate in this order by knowledge and free will. This order was called an “ontological” order. An ontological order expresses the way things are. The order was also considered to be a moral order; that is, it expressed the way things ought to be. A rational person could thus recognize the truth of things and also discern what ought to be done. This order was considered to be a template for the social and political order of society.
Deviant ideas and practices were like a virus attacking the order in the world; moreover, they threatened to corrode the social and political order. Both the Church and the secular power had a vital interest in preserving this order. Secular courts and the Church Inquisition sought to discover the deviant ideas or “heresies.” If individuals who were accused of heresy refused to confess, it was considered legitimate to torture them to obtain a confession. It was known of course that people will make false confessions to avoid pain. But those who justified torture were terrified at the prospect of their world falling apart as a consequence of people’s wrong ideas. They ignored the problem of false confessions and continued to practice torture. When the Inquisition found that persons had deviant ideas and would not change, the Church turned such persons over to the state. The state would then execute them.
What was missing in this theory was an adequate idea of the dignity of the person. In the thinking of the period an individual had dignity on the basis of his being in the right place in the order in the world. In the case of a person who held heretical thoughts, his intelligence was out of order and by accepting such ideas his free will was out of order. He was not in the right place and so did not have dignity. Being in the appropriate place in the world was also equated with being in a set place in the social order. An egregious manifestation of this way of thinking was that it could justify the torture of slaves and the lower classes, but not of the nobility or the clergy.
This confusion was corrected by the Catholic Church in the Second Vatican Council, especially in the document on religious liberty (1965). Every person has dignity because every person is created in the image of God. To be created in the image of God means to have received the gifts of intelligence and free will. Intelligence and free will are received as gifts and we employ these capacities in communicating with other persons who have received the same gifts.
The notion of order in the world that fits with these notions is not that of a fixed “ontological” order. It is an order that is brought into being through free communication between persons; fundamentally between God and human persons, then between human persons. The most basic form of this communication is the exchange of gifts. Dignity comes about through the mutual gift of the recognition of dignity. A primary gift to another is the recognition of the other’s dignity. It is in recognizing the dignity of another that a person acquires his own dignity.
It does not follow that only persons with intelligence and freedom are to be recognized as endowed with dignity. Disabled persons, even the severely disabled, may not be denied dignity. One who refuses to recognize the dignity of the disabled fails to acknowledge what is required by his own dignity and so loses that dignity. A person who tortures another denies the dignity of the other and so denies his own dignity. To allow torture as an exception in “the hard case” is to concede that society, in the final analysis, is founded not on free communication, but on violence.
Brian Johnstone. is a Catholic Priest who taught moral theology in Rome for nearly 20 years. Currently he teaches at the Catholic University in Washington.