'Just for Fun': Understanding Torture and Understanding Abu Ghraib

Abstract

This essay seeks to accomplish two things. First, I consider the problems of defining torture and the law's response to torture. I begin by considering ways not to talk about torture, which leads to the conclusion that we should not seek to limit the category torture in the ways that international and domestic law currently limit it. In part because of the limited legal definition of torture, law in fact fails to regulate it. More precisely, I argue that law provides less of a constraint on torture, properly defined, than most people probably assume. Second, I use those claims as the launching point for a more open-ended exploration of torture and the more general problem of state violence. To that end, the last section of this essay considers with broad strokes some of the possible reasons for law's failure to regulate torture adequately.

Keywords: Torture, constitutional law, international law, human rights

JEL Classification: K10, K14, K33, K42