ABSTRACT
There are two methods (at least) of confronting the phenomenon of torture in judicial and extra-judicial contexts. One is to forbid its exercise, absolutely. The moral attractions of this option are obvious, the practical drawbacks less so. For if such regulation is to be enforced, there must be clarity as to what is forbidden. In a judicial context, what measure of physical or psychological pressure is acceptable and what is not; or, in other words, when does (acceptable) pressure become (unacceptable) coercion? The alternative, which is the subject of this chapter, is what may happen when it is conceded that the use of torture is, even in limited contexts, permissible. In the past, rules governing legal, and in particular criminal, process have been based on the assumption that torture is required for ascertaining the truth. At the same time the rules laid down strict controls on the situations in which, and the people on whom, it may be used. This concession, that torture is acceptable, it will be argued, worked, and may still work, to undermine the safeguards present in the rules as to its use. For, in certain circumstances, where getting at the truth is perceived as essential for removing or curtailing a threat to the community at large, the rules enjoining safeguards may come into conflict with a society’s concern for its own preservation. Thus, as we shall see, the two aims, which justified the use of judicial torture, to get at the truth and protect from threat, may work together over time to subvert the legal safeguards as to its use. In this paper, the phenomenon of what I have called ‘torture creep’ will be analysed in relation to what happened to the rules governing torture under the Roman Empire from the first to the fifth centuries CE.
