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5 - A communicative conception of torture

Published online by Cambridge University Press:  05 September 2014

David Luban
David Luban
Affiliation:
Georgetown University, Washington DC
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Summary

One of the most basic questions a book on torture must answer is what exactly torture is.

One could dispute this claim. Why does a word we understand all too well need to be defined? When the US Department of Justice’s secret torture memos were released in 2009, the journalist Kathleen Parker wrote this:

Several years ago, I asked a veteran journalist for advice.

“I’m trying to figure out if I have an ethical conflict,” I began.

“If you have to ask, you do,” he said…

Apply the same construct to torture. If we have to ask, it probably is.

Pursuing the same line of thought, Jeremy Waldron observes that the prohibition on torture is not like a tax regulation, which needs precision because we expect even blameless taxpayers to push to the limits of the law. It is more like the prohibitions on domestic violence and sexual harassment, where you have no business demanding precise guidance on exactly how far you can go.

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Torture, Power, and Law , pp. 111 - 136
Publisher: Cambridge University Press
Print publication year: 2014

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References

Parker, Kathleen, “Is It Torture?”, Washington Post, Apr. 26, 2009.
Waldron, Jeremy, “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review, 105 (2005), 1681–1750, at 1701Google Scholar
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Cole, David, Ed., The Torture Memos: Rationalizing the Unthinkable (New York Review of Books, 2009), p. 47, n.3.Google Scholar
Margolis, David, Memorandum of Decision Regarding the Objections to the Findings of Professional Misconduct in the Office of Professional Responsibility’s Report of Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists, Jan. 5, 2010
DePalma, Bart and me in The OLC Memos, Federalist Society On-Line Debate Series, Apr. 24, 2009
Janoff-Bulman, Ronnie, Shattered Assumptions: Towards a New Psychology of Trauma (New York: Simon & Schuster, 1992).Google Scholar
Seneca, , Epistles 1–65 (Gummere, Richard M., Trans.) (Cambridge, MA: Harvard University Press, 1917), Epistle 14, p. 87.Google Scholar
Sellars, ’ phrase appears in his “Empiricism and the Philosophy of Mind,” in Science, Perception, and Reality (Austin, TX: Ridgeview, 1963), § 24, p. 154;Google Scholar
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Sussman, David, “What’s Wrong with Torture?”, Philosophy and Public Affairs, 33(1), (2005), 1–33, at 4.CrossRefGoogle Scholar
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Brandom, Robert B., Reason in Philosophy (Cambridge, MA: Harvard University Press, 2009), p. 135.CrossRefGoogle Scholar

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