Reflections on Waldron's Archetypes
University of Saskatchewan - College of Law
July 14, 2010
Law and Philosophy, Vol. 30, No. 1, 2011
Jeremy Waldron argued that the government lawyers responsible for the ‘torture memos’ acted unprofessionally by undermining the prohibition on torture. He did so partly on the basis that the torture prohibition represents a ‘legal archetype’ which cannot be undermined without doing considerable harm to large bodies of law. This paper argues that, however much intuitive appeal Waldron’s archetype-based analysis may have, its force is inherently limited. This is so for two reasons. First, the claim that the torture prohibition is an archetype for non-brutality can only make a meaningful difference to the integrity of the legal order insofar as ‘brutality’ is understood widely. Waldron, though, reads ‘brutality’ in a narrow fashion. Second, and more importantly, the claim that archetypes are uniquely important to legal reasoning and the legal order is deeply problematic.
Number of Pages in PDF File: 27
Keywords: Waldron, Dworkin, torture memos, legal reasoningAccepted Paper Series
Date posted: January 22, 2012 ; Last revised: February 5, 2012
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