Suppose that in the ticking bomb case the probability of compelling the terrorist to divulge the location of the bomb would be higher if we were to torture his small child before his eyes rather than torture him. A pure lesser-evil justification does not distinguish between torturing the terrorist and torturing his child. Suppose that we could be confident of breaking the terrorist’s will in time either by torturing him or by torturing his child, but that his will would break much sooner if we torture the child. If torturing the child would inflict less suffering overall, despite the fact that this would in effect involve torturing two people rather than one, a pure lesser-evil justification might require that we torture the child. That seems to me clearly wrong, though it is testimony to the intuitive force of the threshold deontological version of the lesser-evil justification that if the stakes were high enough in the ticking bomb case, most people agree that it could be permissible to torture the child if that offered the best chance of saving the city, which itself, we might suppose, is home to more than a million children who would otherwise be killed.
(Jeff McMahan, "Torture in Principle and in Practice," Public Affairs Quarterly 22 [April 2008]: 91-108, at 96 [italics in original])
Note from KBJ: To a consequentialist (e.g., a utilitarian), there is no relevant difference between torturing a terrorist and torturing the terrorist's child, other things being equal. All that matters is the result: getting information that will allow authorities to defuse the bomb. The end justifies the means. A moderate deontologist such as W. D. Ross would disagree. In the case of the terrorist, there are three applicable prima facie duties: (1) the duty of nonmaleficence (i.e., the duty not to harm), which militates against torture; (2) the prima facie duty of beneficence (i.e., the duty to do good, which includes, but is not limited to, the duty to prevent, remove, or minimize harm), which militates in favor of torture; and (3) the prima facie duty of justice (i.e., the duty to give people what they deserve), which militates in favor of torture. In the case of the terrorist's child, these same prima facie duties militate, respectively, against, in favor, and against torture. So there is a relevant difference between the cases, namely, that the child doesn't deserve to be tortured. This difference can support an overall (ultima facie, all-things-considered) judgment that it would be right to torture the terrorist but wrong to torture the terrorist's child. This example shows that consequentialism and moderate deontology sometimes diverge, and are therefore different theories.
Keith Burgess-Jackson, J.D., Ph.D. 