Pain, Interrogation, and the Body: State Violence and the Law of Torture

Abstract

This essay is drawn from a keynote address delivered at a conference on Evil, Law, and the State, held at Mansfield College, Oxford in July 2004.

The essay has two overlapping goals. First, I provide an overview of the complex and incomplete ways in which law responds to state violence, with a focus on the problem of enforcement. Law cannot constrain the violence of the state if it cannot be enforced, yet courts depend upon state power to enforce their decisions. The predictable result is that law often fails to confront or manage state violence.

Second, I make these issues concrete through a discussion of the law of torture. I contend that international and domestic laws (using the law of the United States as an example) fail to control or prevent - or even to outlaw - torture, despite the widespread view that torture is absolutely forbidden. The critical move here is the recognition that legal meanings are often intentionally cramped, so that the forbidden category of "torture" fails to cover large areas of violent state action.

Keywords: constitutional law, criminal law, jurisprudence, law and humanities

JEL Classification: K10, K14, K33, K42