(This is Neil) As we consider the issue of torture, we might find ourselves hesitating when we recall the not insignificant place of torture in the history of the Catholic Church. After Mark Shea composed an article for Crisis arguing that no Catholic could accept torture, a correspondent then wrote, “The huge elephant in our Catholic living room that everyone politely refrains from mentioning is the massive, trimillennial Judeo-Christian tradition that legitimized torture right up until Vatican II” as a means of punishment or extracting information.
I’ve already posted on the inadmissibility of torture, because, very practically, torture seems rather ineffective for information gathering and nearly always entangled with a dark and sadistic strategy of repression through unspeakable cruelty. As William Pfaff has told us, “Torture is intended to produce what, in the military assault on Iraq was called ‘shock and awe.’ It is meant as intimidation. We will do these terrible things to demonstrate that nothing will stop us from conquering our enemies.” Torture is also the expression that “enemies are not simply to be defeated; they are to be annihilated morally as well as physically.” And this is plainly immoral. Since I put together that post, I really haven’t read anything to change my estimation. Eric Haney, a retired command sergeant major of the U.S. Army, and a founding member of Delta Force, recently told the LA Daily News, “The only reason anyone tortures is because they like to do it. It’s about vengeance, it’s about revenge, or it’s about cover-up. You don’t gain intelligence that way. Everyone in the world knows that.” That said, please read Bishop John H. Ricard, SSJ’s letter to the Senate on the prohibition of torture.
Let us try looking at the “huge elephant in our Catholic living room.” I will be drawing from an article by Jordan Bishop in the most recent New Blackfriars, a publication from which I have learned a great deal over the years. Dr Bishop begins by quoting “Law 25” of Pope Innocent IV’s bull Ad extirpanda (1252), which regulated the conduct of the Inquisition in Lombardy, Romagna, and the Marches:
The Podestà or Rector has the authority to oblige all heretics that he may have in his power, without breaking limbs or endangering their lives, to confess their errors and to accuse other heretics whom they may know, as true assassins of souls and thieves of the Sacraments of God and of the Christian faith, and their worldly goods, and believers in their doctrines, those who receive them and defend them, just as robbers and thieves of temporal goods are obliged to accuse their accomplices and confess the evil that they have done.
This would become accepted practice, so that the Italian jurist Passerinus would write in 1677, “In the event that witnesses who are clerics are to be tortured, they must not be tortured under the supervision of a lay judge, but under that of an ecclesiastical judge.”
What happened in 1252? Roman law had been rediscovered in the preceding centuries, and Pope Innocent, as seems evident, was merely allowing the Inquisition to adopt existing secular practice, which involved torturing not only accused persons but also witnesses for the purpose of gathering information. In Roman law, Dr Bishop reminds us, the testimony of those of low status (gladiators, for instance) was actually only accepted if it had first been confirmed by torture. This reliance on torture, strange to us, came in part from the Roman law’s reluctance to convict anyone on the sole basis of circumstantial evidence. As the jurist Passerinus would say, the finding of a naked man in the same bed with a naked woman was not itself grounds for conviction, but could result in the naked parties being reasonably subjected to the torture that would likely result in the confessions that would then lead to a secure conviction.
Torture was, we can say, a well-defined procedure subject to rules. Records were even kept. Torture was also a widely accepted secular practice that was subsequently adopted by the Church. Although I suspect that everyone will agree that Ad extirpanda was lamentable, the present use of torture differs because it is a hidden, secret, and often lawless practice that occurs at a climate of theoretical and official disapproval. And so, the University of Wisconsin history professor Alfred W. McCoy has written,
As we learned from France’s battle for Algiers in the 1950s, Argentina’s dirty war in the 1970s, and Britain’s Northern Ireland conflict in the 1970s, a nation that harbors torture in defiance of its democratic principles pays a terrible price. Its officials must spin an ever more complex web of lies that, in the end, weakens the bonds of trust that are the sine qua non of any modern society.
That twentieth century story is also our story, even as it does not necessary implicate the medieval Church. Jordan Bishop also cannot say that sadism did not occur during the Middle Ages, but the explicit and legalistic focus on securing evidence might have served to at least somewhat prevent what torture seems to have largely become in our time, a matter of repression through cruelty, or what Naomi Klein has called “a machine designed to break the will to resist – the individual prisoner’s will and the collective will.” As bad as medieval torture was, we can distinguish it from Abu Ghraib.
St Thomas Aquinas is infamous for defending capital punishment for heretics (for a degree of contextualization, see Michael Novak here.) But he says nothing about torture, nor does he cite Ad extirpanda. He does mention Aristotle’s Rhetoric elsewhere, so we can trust that he had read “the Philosopher’s” contention that “evidence under torture is not trustworthy, the fact being that many men whether thick-witted, tough-skinned, or stout of heart endure their ordeal nobly, while cowards and timid men are full of boldness till they see the ordeal of these others: so that no trust can be placed in evidence under torture” (1377a). But Aquinas does give a hint of what he might have said.
St Thomas pronounces that “it is in no way lawful to slay the innocent.” While he does not raise the question of merely injuring the innocent, one can speculate that the answer would be similarly negative. And Dr Bishop writes, “Here, as with Aristotle, there is no question of ‘justifying’ actions otherwise reprehensible on the basis of some greater good.” Very bluntly, then, in the ethics of Aristotle and Aquinas, only the guilty can be subject to punishment, and nothing changes that. Thus, despite what Roman law might allow, witnesses should not be tortured. Nor should the accused be tortured for a confession, because, at the time of torture, there is no real proof of guilt. Even if the judge were privately convinced of the guilt of the accused, he must not treat the accused as already guilty and suitable for punishment, for “his judgment should be based on information acquired by him, not from his knowledge as a private individual, but from what he knows as a public person.”
It is entirely possible that Aquinas did not entertain the question of torture because the Summa, as the late Fr Leonard Boyle, OP, informed us, was written for working friars in St Dominic’s Priory in Orvieto to deal with practical issues that might realistically come up in the course of their pastoral work. Aquinas had complained about the “multiplication of useless question, articles, and arguments.” It is possible that his students would not be inquisitors or in any sort of position to challenge a universally accepted practice, so the question was simply irrelevant.
Dr Bishop wonders, “Was this a ‘copout’ on Aquinas’ part? Or was it simply the sad recognition of the impossibility of applying his ethics to this question? One could of course say, qui tacet, consentire videtur – silence indicates consent.” But, whatever the case, it should not be so for us. And, as Dr Bishop also wisely tells us, “both Aristotle and Aquinas provide an ethical infrastructure that is quite clear,” and we should be grateful to them for that. Torture must not be accepted. And if it is a part of our past, we must remember the moving example of the late Pope John Paul II during the Lent of 2000 when he asked pardon for “the violence some have used in the service of the truth.” Perhaps this “elephant in our Catholic living room” is not as large as we might think.
Well, what do you think?
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- Misericordia et Misera 11: Other Penance Practices
- Amoris Laetitia 244: Declarations of Nullity
- Misericordia et Misera 10: Confessors Preparing
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