Jump to ContentJump to Main Navigation
Confronting TortureEssays on the Ethics, Legality, History, and Psychology of Torture Today$
Users without a subscription are not able to see the full content.

Scott A. Anderson and Martha C. Nussbaum

Print publication date: 2018

Print ISBN-13: 9780226529387

Published to Chicago Scholarship Online: September 2018

DOI: 10.7208/chicago/9780226529554.001.0001

Show Summary Details
Page of

PRINTED FROM CHICAGO SCHOLARSHIP ONLINE (www.chicago.universitypressscholarship.com). (c) Copyright University of Chicago Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in CHSO for personal use.date: 28 May 2020

Torture and Positive Law: Jurisprudence for the White House

Torture and Positive Law: Jurisprudence for the White House

Chapter:
(p.257) Chapter 12 Torture and Positive Law: Jurisprudence for the White House
Source:
Confronting Torture
Author(s):

Jeremy Waldron

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226529554.003.0013

As part of the War on Terror, the Bush administration backed away from the U.S.’s prior absolute rejection of torture, as manifested in its agreement to the Convention against Torture and other international treaties. This chapter argues against the kind of legal niceties the Bush administration and supportive lawyers employed in arguing for the legality of torture. In arguing to narrow the definition of torture, and to reconcile this form of brutality with U.S. constitutional law, such legal maneuvers were inimical to some of the fundamental principles that guide U.S. legal practice. This chapter develops the concept of a legal archetype—a fundamental principle that guides understanding of the point of law and legal practice, such as habeas corpus and rights to due process and against cruel and unusual punishment—and argues that justifying the use of torture is corrosive of such archetypes in U.S. law. Even if there is an argument that waterboarding or other abusive practices are not strictly illegal, the effort to make fine distinctions here tends to undermine our rejection of brutality as an acceptable state practice.

Keywords:   archetypes, brutality, Bush administration, constitutional law, Convention against Torture, definition of torture, jurisprudence, law, torture, War on Terror

Chicago Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs, and if you can't find the answer there, please contact us.