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Faculty Forum: Torture and Positive Law

Torture and Positive Law: Jurisprudence for the White House
by Jeremy Waldron

America's fight against terrorism has raised a number of important legal questions, among them relating to the practice of torture. In the past year, the issue was brought home by the comments of U.S. Attorney General Alberto Gonzales, at the time President Bush's counsel. In a White House memo, he questioned the relevance of torture provisions in the Geneva Convention, given that the United States is not at war with another nation, but rather with a group of people with official ties to no particular country. While some people excoriated Gonzales's labeling of such provisions as "quaint" and "obsolete," others have suggested that torture qualifies as a necessary tool during the interrogation of some suspected terrorists.

In this excerpt from an article in the Columbia Law Review, Jeremy Waldron argues that torture is contrary to the spirit and heritage of Anglo-American law, whose traditions reject it as alien to its jurisprudence. "The rule against torture is the archetype of a certain approach to the relation between law and force," writes Waldron. "If law is forceful or coercive, it gets its way by non-brutal methods which respect rather than mutilate the dignity and agency of those who are its subjects," he writes.

The full article appeared in the October issue of the Law Review. For more information, please visit the publication's web site at www.columbialawreview.org or call (212) 854-4398.

WHY DOES THE PROSPECT of judicially authorizing torture shock the conscience of a scrupulous lawyer? Is it simply that the unthinkable has become thinkable? Or is it something about the specific effect on law - perhaps a systemic corrupting effect - of this abomination's becoming one of the normal items on the menu of practical consideration?

Maybe there are certain things we can imagine justifying in theory but whose permissibility would have such an impact on the rest of the law that it would be a strong or conclusive reason for not permitting them. An analogy I have found helpful in thinking about this is the argument about slavery in Somerset's case,1 made famous in recent jurisprudence by its discussion in Robert Cover's 1975 book Justice Accused. James Somerset was an African slave belonging to a resident of Virginia. He was brought by his master in 1769 to England, where slavery was outlawed. Somerset made a bid for freedom, running away from his master, but was apprehended and detained aboard ship for a voyage to Jamaica (where his master proposed to resell him). A writ of habeas corpus was brought on Somerset's behalf and, of course, counsel for the detainers argued that the English courts were required to recognize Somerset's slave status and his master's property rights as a matter of private international law. Counsel for the petitioner, though, opposed that ar-gument in terms that I want to draw on. He asked:

[S]hall an attempt to introduce perpetual servitude here to this island [Great Britain] hope for countenance? ... [T]he laws, the genius and spirit of the constitution, forbid the approach of slavery; will not suffer its existence here. ... I mean, the proof of our mild and just constitution is ill adapted to the reception of arbitrary maxims and practices.

After some hesitation, Lord Mansfield agreed with this argument and ordered that Somerset be discharged: "[T]he state of slavery is of such a nature that it is incapable of being introduced on any reasons ... but only by positive law. ... It is so odious, that nothing can be suffered to support it, but positive law."

Lord Mansfield was evidently not denying that there could be a valid law in England establishing slavery. Though he drew on the fact that natural law prohibits slavery, his position was not the classic natural law doctrine "lex iniusta non est lex" - that such an edict would be too unjust to deserve the status "law." If Parliament established slavery, then slavery would be the law, and English lawyers would just have to put up with the traumatic shock this would deal to the rest of their principles about liberty. The prospect of that shock, though, is one of the things that convinced Lord Mansfield that nothing short of explicit parliamentary legislation could be permitted to require this. The affront to liberty implicit in a person's legal confinement on the basis that he is another man's chattel is "so high an act of dominion" that nothing but an explicit enactment would do to legitimize it. That is why any attempt to bring it in by the back door - or to bring in its effects so far as liberty is concerned - would have to be resisted.

Something analogous is true of torture. There is no question but that it could be introduced into our law, directly by legislation, or indirectly by so narrowing a definition that torture was being authorized de jure in all but name. But its in-troduction - openly (as Alan Dershowitz contemplates) or surreptitiously (as Jay Bybee seems to be urging) - would be contrary to "the genius and spirit" of our law. For there is in the heritage of Anglo-American law, a long tradition of rejecting torture and of regarding it as alien to our jurisprudence. True, torture warrants were issued under Elizabeth I and James I. But they were issued in the exercise of prerogative power, not by the courts. Blackstone observes that the refusal to au-thorize torture was an early point of pride for the English judiciary:

[W]hen, upon the assassination of Villiers duke of Buckingham ... it was proposed in the privy council to put the assassin to the rack, in order to discover his accomplices; the judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England.

 Actually a case can be made that torture is now to be regarded as alien to any system of law. It may once have been intimately bound up with the civilian law of proofs, but as University of Pennsylvania Professor of History Edward Peters observes in his book Torture, "[a]fter the end of the eighteenth century, torture ... came to be considered ... the supreme enemy of humanitarian jurisprudence ... and the greatest threat to law and reason that the nineteenth century could imagine." Be that as it may, torture is certainly seen by most jurists - or has been seen by most jurists until very recently - as inherently alien to our legal heritage.

Thus American judges have always been anxious to distance themselves from what Justice John Paul Stevens has referred to as "the kind of custodial interrogation that was once employed by the Star Chamber [and] by the Germans of the 1930s and early 1940s."3 Or, as Justice Hugo Black put it in 1944:

There have been, and are now, certain foreign nations with governments ... which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.

Justice Black saw torture as characteristic not of free, but of tyrannical governments:

Tyrannical governments had immemorially utilized dictatorial criminal procedure and punishment to make scape-goats of the weak, or of helpless political, religious, or racial minorities and those who differed, who would not conform and who resisted tyranny.... The rack, the thumbscrew, the wheel, solitary confinement, protracted ques-tioning and cross questioning, and other ingenious forms of entrapment of the helpless or unpopular had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hang-man's noose.

Torture may be something that happens elsewhere in the world, but not in a free country or, at any rate, not under the law of a country like ours. Our constitutional arrangements are spurred precisely by the desire to set the face of our law against such "ancient evils."

The rule against torture is the archetype of a certain approach to the relation between law and force. The prohibition expresses an important underlying policy of the law, which we might try to capture in the following way. Law is not brutal in its operation; law is not savage; law does not rule through abject fear and terror, or by breaking the will of those whom it confronts. If law is forceful or coercive, it gets its way by non-brutal methods that respect rather than mutilate the dignity and agency of those who are its subjects. The idea is that even where law has to operate forcefully, there will not be the connection that has existed in other times or places between law and brutality. People may fear and be deterred by legal sanctions, they may dread lawsuits, they may even on occasion be literally forced against their will by legal means or by legally empowered officials to do things or go places they would not otherwise do or go to. But even when this happens, they will not be herded like cattle or broken like horses; they will not be beaten like dumb animals or treated just as bodies to be manipulated. Instead, there will be an enduring connection between the spirit of law and respect for human dignity - respect for human dignity even in extremis, even in situations where law is at its most forceful and its subjects at their most vulnerable. I think the rule against torture functions as an archetype of this very general policy. It is vividly emblematic of our determination to sever the link between law and brutality, between law and terror, and between law and the enterprise of trying to break a person's will.

No one denies that law has to be forceful and final. The finality of law means that it is important for law to prevail in the last analysis, and, as Max Weber puts it, "the threat of force, and in the case of need of its actual use ... is always the last resort when others have failed."6 But forcefulness can take many forms, and not all of them involve the sort of savage breaking of the will that is the aim of torture and the aim too of many of the cruel, inhuman, and degrading methods that the Bush administration would like to distinguish from torture for the purpose of maintaining lip service to the prohibition. Nor does legal forcefulness necessarily involve the torturer's enterprise (and the enterprise of those who use the cruel, inhuman, and degrading methods that the administration would like to distinguish from torture) of inducing a regression of the subject into an infantile state, where the elementary demands of the body supplant almost all adult thought. The force of ordinary legal sanctions and incentives does not work like that, nor does the literal force of physical control and confinement.

For example, when a defendant charged with a serious offense is brought into a courtroom, he is brought in whether he likes it or not and, when he is punished, he is subject to penalties that are definitely unwelcome and that he would avoid if he could; in these instances, there is no doubt that he is subject to force, that he is coerced. But in these cases force and coercion do not work by reducing him to a quivering mass of "bestial desperate terror," which is the aim of every torturer (and the aim of those interrogators who would inflict cruel, degrading, and inhuman treatment that, they say, does not quite amount to torture). So, when I say that the prohibition on torture is an archetype of our determination to draw a line between law and savagery or between law and brutality, I am not looking piously to some paradise of force-free law, but rather to the well-understood idea that law can be forceful without compromising the dignity of those whom it constrains and punishes.

That our law keeps perfect faith with this commitment can be doubted. Defendants are sometimes kept silent and passive in American courtrooms by the use of technology that enables the judge to subject them to electric shocks if they misbehave. Reports of prisoners being "herded" with cattle prods emerge from time to time. Conditions in our prisons are de facto terrorizing and well-known to be so, even if they are not officially approved or authorized; and we know that prosecutors feel free to make use of defendants' dread of this brutalization as a tactic in plea-bargaining. Some would say, too, that the use of the death penalty represents a residuum of savagery in our system that shows the limits of our adherence to the principle that I am talking about.

All this can be conceded. Now, those who oppose these various kinds of brutality and abuse sometimes do so simply on moral grounds: They mobilize the standard moral outrage that one would expect such practices to evoke. But often they oppose and criticize these practices using moral resources drawn from within the legal tradition - constitutional resources in many cases, but also a broader and more diffuse sense that there is an affront to the deeper traditions of Anglo-American law in abuse of this kind. I believe that the familiar prohibition on torture serves as an archetype of those traditions, and it is that archetype that I am trying to bring into focus in my article.

PRINTED BY PERMISSION OF THE COLUMBIA LAW REVIEW (VOL. 105:6).