本文发表在 rolia.net 枫下论坛The Torture of the Mad Bomber.
A madman who has threatened to explode several bombs in crowded areas has been apprehended. Unfortunately, he has already planted the bombs and they are scheduled to go off in a short time. It is possible that hundreds of people may die. The authorities cannot make him divulge the location of the bombs by conventional methods. He refuses to say anything and requests a lawyer to protect his fifth amendment right against self-incrimination. In exasperation, some high level official suggests torture. This would be illegal, of course, but the official thinks that it is nevertheless the right thing to do in this desperate situation. Do you agree? If you do, would it also be morally justifiable to torture the mad bomber's innocent wife if that is the only way to make him talk? Why?
In the judicial system of Imperial China, torture was technically illegal but tolerated because no one could be convicted without a confession. Torture could then be used with these provisions: (1) Questioning could only be done in open court. Since torture would then be administered in public, the public should agree, from the evidence, that the suspect is probably guilty. If it appeared that an innocent person was being tortured, a riot might result. The Judge, who was also the Magistrate of his administrative District, would be held responsible for the civil disturbance. (2) Punishment would be mitigated in proportion to any suffering inflicted by torture. And, most importantly, (3) if it turned out that an innocent person was convicted, the punishment he suffered could be imposed on the Judge. This was called 反坐 , "reversed judgment." I think that this is a fine legal principle -- where with us misbehavior by judges, prosecutors, or police is generally not liable to criminal sanction. A person not even under oath lying to a federal agent is guilty of a crime, but prosecutors can lie in court and the police can lie to suspects with impunity. The Chinese legal system is discussed and illustrated by the Dutch diplomat and scholar Robert van Gulik in his “Judge Dee”（狄仁杰） books.更多精彩文章及讨论，请光临枫下论坛 rolia.net
A madman who has threatened to explode several bombs in crowded areas has been apprehended. Unfortunately, he has already planted the bombs and they are scheduled to go off in a short time. It is possible that hundreds of people may die. The authorities cannot make him divulge the location of the bombs by conventional methods. He refuses to say anything and requests a lawyer to protect his fifth amendment right against self-incrimination. In exasperation, some high level official suggests torture. This would be illegal, of course, but the official thinks that it is nevertheless the right thing to do in this desperate situation. Do you agree? If you do, would it also be morally justifiable to torture the mad bomber's innocent wife if that is the only way to make him talk? Why?
In the judicial system of Imperial China, torture was technically illegal but tolerated because no one could be convicted without a confession. Torture could then be used with these provisions: (1) Questioning could only be done in open court. Since torture would then be administered in public, the public should agree, from the evidence, that the suspect is probably guilty. If it appeared that an innocent person was being tortured, a riot might result. The Judge, who was also the Magistrate of his administrative District, would be held responsible for the civil disturbance. (2) Punishment would be mitigated in proportion to any suffering inflicted by torture. And, most importantly, (3) if it turned out that an innocent person was convicted, the punishment he suffered could be imposed on the Judge. This was called 反坐 , "reversed judgment." I think that this is a fine legal principle -- where with us misbehavior by judges, prosecutors, or police is generally not liable to criminal sanction. A person not even under oath lying to a federal agent is guilty of a crime, but prosecutors can lie in court and the police can lie to suspects with impunity. The Chinese legal system is discussed and illustrated by the Dutch diplomat and scholar Robert van Gulik in his “Judge Dee”（狄仁杰） books.更多精彩文章及讨论，请光临枫下论坛 rolia.net