Jeremy Waldron prefaced his argument that laws prohibiting torture form part of the foundation of our legal system by expressing his sorrow that a discussion of torture involves a discussion of current events.
"It is a matter of some shame that we now have to devote lectures to torture, not as something of historical interest but as a matter of topical concern," Waldron, who is University Professor of Law and director of the Center for Law and Philosophy at Columbia University, said. "The U.S. is now widely regarded in the world as a torture state."
Waldron's lecture, "The Rule against Torture as a Legal Archetype," delivered at Vanderbilt Law School February 3, was the third annual Jonathan I. Charney Distinguished Lecture in International Law. The lecture series honors former law professor Jonathan I. Charney, one of the world's preeminent experts on international law, who held the Lee S. & Charles A. Speir Chair at the law school until his death in 2002.
"Why should the prospect of legally authorizing torture shock the conscience of a scrupulous lawyer?" Waldron asked. "After all, we change our laws and the interpretation of our laws all the time to reflect changing circumstances."
The answer, according to Waldron, is that certain principles become established as legal archetypes, either "prohibiting some action or imposing some obligation," and also "expressing or epitomizing the spirit of the whole area of law of which is it a part."
Waldron identified several archetypes, or basic principles that establish a standard on which other laws are based, within the American legal system, including habeas corpus, the archetype of the general spirit of liberty; the Second Amendment, "which has become the archetype of our general permissiveness toward gun control;" and Brown v. Board of Education, which became archetype of general desegregation of our society.
The rule against torture, Waldron asserted, is "archetypal of an important underlying principle of nonbrutality" that pervades American law. "When law is forceful," he said, "it gets its way by coercive methods which respect rather than crush or mutilate the dignity and agency of those who are its subjects." Not only does American legal tradition prohibit torture of its own citizens, but Waldron noted that Section 2340A of the United States Criminal Code expressly establishes torture as a criminal offense outside of the United States, punishable by a term in prison or death.
The significance of the prohibition on torture, Waldron argued, extends beyond its immediate ban. In particular, it informs the content and application of other areas of our law. As an example, he noted that the Supreme Court's Eighth Amendment decisions on what sort of punishment counts as "cruel and unusual" use torture as a yardstick against which to measure other forms of punishment. Thus, in Rochin v. California, a 1952 case, narcotics agents burst into a room, observed a man swallow something, used force to make him consume a convulsing agent, and then used the two morphine pills he vomited up as evidence to convict him of unlawful possession. His conviction was ultimately overturned by the Supreme Court, and in the majority opinion, Justice Felix Frankfurter stated bluntly, "These are methods too close to the rack and the screw."
Waldron equates torture with other international offenses, including the slave trade, piracy and terrorism, which "are treated by law as an enemy of all mankind." Concluding that "there is something shocking jurisprudentially about the defense of torture and the undermining of rules against torture," he expressed concern about the results of "bewildering and repellent series of calls to use torture" in the public media – and the reality that Americans perpetrated torture in Afghanistan, at Guantanamo Bay and at Abu Ghraib.
"We accept that flogging in prisons is wrong, that coerced confessions and police brutality are wrong," he said. "But these beliefs may be uncertain and a little shaky. If we undermine the sense that torture is out of the question, the character of our legal system will be corrupted. We will have given up the linchpin of the non-brutality principle."
"Instead, we have to say, in most cases the law will not countenance brutality," he concluded. "But since torture is now permitted in a small class of cases, we cannot rule out the possibility that other brutal tactics will also be permitted. The repudiation of brutality becomes a technical matter in our law, rather than a shining issue of principle."
Waldron's lecture was based on his recent Columbia Law Review article, "Torture and Positive Law: Jurisprudence for the White House," published in October 2005.