Torture as a Problem in Ordinary Legal Interpretation
31 Pages Posted: 30 Nov 2006
Date Written: November 2006
American legal discourse on torture takes for granted some, usually all, of the following propositions, that make discussion of torture more difficult than it should be. Torture is assumed to present unusually difficult problems of definition, full of vague concepts, fine lines, gray areas, murky moral dilemmas, "dirty hands." This vagueness is thought to be even more of a problem for the attendant concept of "cruel, inhuman, and degrading treatment." The legal sources of either prohibition are assumed to be dubious under American law. Prohibiting torture is, perhaps for these reasons, thought to require moral justification not necessarily required of other legal prohibitions discussed in legal scholarship. This moral justification, in turn, is thought to be quite difficult. The advocate of prohibiting torture must be prepared to analyze hypothetical situations in which torture might be appropriate, and the supposed presence of these hypothetical situations casts doubt on the moral justification of the prohibition.
This Article demonstrates by contrast that the prohibition of torture is firmly established in American, let alone international, law. As legal concepts go, it is rather well-defined. Its reach may be understood through ordinary techniques of legal interpretation such as applications to common fact patterns. The moral appeal of prohibiting torture is intuitive, even a sort of obvious case for legal regulation, and calls for no special moral justification not required in the application of any fairly ordinary legal prohibition. It is neither necessary nor helpful to imagine highly unrealistic hypothetical situations in order to understand when, and how, law prohibits torture.
It is a mistake in this context to give away the austerity of normal law for the vagaries of moral discourse.
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