The Torturer's Dilemma: Analyzing the Logic of Torture for Information

are often praised in this regard. However, as Langbein (2004) makes clear, torture did not end all at
once, or even as a direct result of these fine humanists' arguments. The problems with torture
identified by Beccaria in his “On Crimes and Punishments” (1764) were nothing new – jurists had
spent the last 500 years attempting to grapple with just these issues through greater regulation.
However, torture as a means of judicial interrogation could not be done away with until some new
system could replace the old system of proofs taken from the Roman law. Interestingly, this new
system was in fact a reform of the old one. By the 1700s, the power of the European state had
developed enough that gathering information had become a serious possibility in criminal matters.
With greater ability to identify malefactors through evidence-gathering, the state no longer needed to
impose the death penalty to overawe the public, but could rely on less brutal punishments more
frequently administered. With the secularization of the state, the need to punish heresy and witchcraft
declined as well. Finally, the acceptance of empirical evidence, rather than a single-minded focus on
confessions, as well as the ability to administer lesser punishments than the death penalty led the
practice into final decline. (Langbein 1978; Silverman, 2001; Chen, Tsai & Leung, 2009) In this way,
we can see how the processes of state-building identified by Foucault (1975), that is, the movement
from punishment to discipline, intimately linkes the birth of surveillance to the decline of torture. By
the late 1800s, scholars such as Welling (1898), Headlam (1892) and Lowell (1897) could reflect that
torture was a mere relic of barbarism, destined for the ash bin of history.
Modern Torture
And yet torture did not disappear. With the abolition of judicial torture, physical coercion
began a process of bifurcation. New techniques were invented, and older ones reclaimed, that offered
the benefits of torture without the incriminating physical evidence. These so-called 'clean' techniques
first became widespread, not in autocracies (who had little to fear and much to gain from a widespread
public fear of the power of the state) but in democracies: in particular in France, Great Britain and the
United States. 22 These techniques were by and large taken from existing forms of torture that had been
developed earlier, but their adoption by democracies points to one possible explanation for their spread
across the world by the late 20 th Century. Democratic states recognized that official torture, as an
historical mark of social inequality, had no place in a liberal society, and this gave them much to lose
from a reputation for torture. And yet, torture was to continue. By adapting clean techniques (often
22 Rejali (2008)
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