Law, Economics, and Torture

Abstract:     
This paper addresses three sets of questions, among which it wishes to draw connections: (1) Why has there been so little resistance to the recent massive transfer of national wealth to the rich and super-rich? It is the majority who are injured, and they presumably hold the power in a democracy: why have they not exercised it? (2) Why are law schools so dominated by questions of policy, with rather little interest in the intellectual and linguistic activities of the practicing lawyer and judge? Why indeed do judicial opinions themselves seem so often to be written in a dead and mechanical way? (3) Why has there been so little outrage and outcry at the present administration's efforts to make the torture of suspects and captives a normal and legalized part of the government's business?

This paper was given at a conference in Ann Arbor, in April 2007, entitled "Law and Democracy in the Empire of Force," at which a dozen scholars addressed their respective understandings of the state of American legal and democratic culture. This and the other papers will be published in a book, Law and Democracy in the Empire of Force, edited by H. Jefferson Powell and James Boyd White, to be published early in 2009 by the University of Michigan Press. The publication of the essay in SSRN is with the permission of the Press. The phrase, "empire of force," is taken from Simone Weil's famous essay on the Iliad, where she uses it to refer not only to physical or military force, but to all the ways in which a culture teaches its members to erase the humanity of others.

Number of Pages in PDF File: 29

Keywords: Law, economics, torture, law and economics, cost-benefit analysis, judicial opinions, legal writing, legal theory, democracy

JEL Classification: A13, K13

working papers series