I am not, here, making any forays into the legal arena.
I see the following as an argument against legalizing or otherwise endorsing behavior, but not as an argument against an individual's performing the behavior:
I cannot accept the culture/society that would permit such a torture to exist.
On the balance, how did the gatherer effect the social taboo against "work" on the Sabbath?
Numbers 15:32-36 King James Version (KJV)
And while the children of Israel were in the wilderness, they found a man that gathered sticks upon the sabbath day.
And they that found him gathering sticks brought him unto Moses and Aaron, and unto all the congregation.
And they put him in ward, because it was not declared what should be done to him.
And the LORD said unto Moses, The man shall be surely put to death: all the congregation shall stone him with stones without the camp.
And all the congregation brought him without the camp, and stoned him with stones, and he died; as the LORD commanded Moses.
He provided an excuse to reinforce the prohibition. Someone knowing the outcome of the story couldn't have said his action made it less taboo, as it wasn't previously established that it as a capital offense. All the more so for the 1,000,001st person to torture someone, after the million who preceded him, so long as the 1,000,001st is punished severely.
I see the following as an argument against legalizing or otherwise endorsing behavior, but not as an argument against an individual's performing the behavior:
As a general trend if we accept one form of action as opposed to the other we are reducing the threshold towards its being repeated. This is akin to the Broken Window Theory: what was permitted once may be argued more permissible in the future due to said permission. Individual instances of a behavior then become arguments for or against it. For example, I believe that the US's practice of condoni...
For those not familiar with the topic, Torture vs. Dustspecks asks the question: "Would you prefer that one person be horribly tortured for fifty years without hope or rest, or that 3^^^3 people get dust specks in their eyes?"
Most of the discussion that I have noted on the topic takes one of two assumptions in deriving their answer to that question: I think of one as the 'linear additive' answer, which says that torture is the proper choice for the utilitarian consequentialist, because a single person can only suffer so much over a fifty year window, as compared to the incomprehensible number of individuals who suffer only minutely; the other I think of as the 'logarithmically additive' answer, which inverts the answer on the grounds that forms of suffering are not equal, and cannot be added as simple 'units'.
What I have never yet seen is something akin to the notion expressed in Ursula K LeGuin's The Ones Who Walk Away From Omelas.If you haven't read it, I won't spoil it for you.
I believe that any metric of consequence which takes into account only suffering when making the choice of "torture" vs. "dust specks" misses the point. There are consequences to such a choice that extend beyond the suffering inflicted; moral responsibility, standards of behavior that either choice makes acceptable, and so on. Any solution to the question which ignores these elements in making its decision might be useful in revealing one's views about the nature of cumulative suffering, but beyond that are of no value in making practical decisions -- they cannot be, as 'consequence' extends beyond the mere instantiation of a given choice -- the exact pain inflicted by either scenario -- into the kind of society that such a choice would result in.
While I myself tend towards the 'logarithmic' than the 'linear' additive view of suffering, even if I stipulate the linear additive view, I still cannot agree with the conclusion of torture over the dust speck, for the same reason why I do not condone torture even in the "ticking time bomb" scenario: I cannot accept the culture/society that would permit such a torture to exist. To arbitrarily select out one individual for maximal suffering in order to spare others a negligible amount would require a legal or moral framework that accepted such choices, and this violates the principle of individual self-determination -- a principle I have seen Less Wrong's community spend a great deal of time trying to consider how to incorporate into Friendliness solutions for AGI. We as a society already implement something similar to this, economically: we accept taxing everyone, even according to a graduated scheme. What we do not accept is enslaving 20% of the population to provide for the needs of the State.
If there is a flaw in my reasoning here, please enlighten me.