Torture Warrants and the Rule of Law

Abstract:     
This essay derives from a paper presented in Spring 2006 at a conference on the work of Alan Dershowitz. The essay considers Dershowitz's much-criticized suggestion for the use of torture warrants for the interrogation of suspected terrorists. Rather than address the merits of the torture warrant proposal -- something which many other writers already have done -- "Torture Warrants and the Rule of Law" seeks to understand the virulence of the reaction against the proposal in terms of debates about the rule of law. Relying primarily on Jeremy Waldron's essay, "Torture and Positive Law," as representative of the academic reaction, the essay suggests that Dershowitz's proposal not only brings to the surface the extent to which typical conceptions of the rule of law tend to ignore law's reliance on violence but also destabilizees the efforts of writers like Waldron to control or divert that reliance. Thus, while Dershowitz extols familiar rule of law virtues such as accountability and transparency -- and seeks to bring emergency or exceptional measures within the rule of law framework -- Waldron insists that the rule of law must rest on fundamental substantive commitments that make no room for the exception. The essay makes no effort to resolve the specific Dershowtiz-Waldron debate. Instead, drawing on Giorgio Agamben and Thomas Mann, it seeks to clarify what is at stake in the debate, sympathizes with writers who suggest that violence is foundational to law, and suggests that, as a result, violence is necessary to any plausible theory of the rule of law.

Number of Pages in PDF File: 23

Keywords: torture, rule of law, violence, exception

JEL Classification: K10, K14, K33, K42

Accepted Paper Series