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Confronting TortureEssays on the Ethics, Legality, History, and Psychology of Torture Today$
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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

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Torture and Positive Law: Jurisprudence for the White House

Torture and Positive Law: Jurisprudence for the White House

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

Jeremy Waldron

University of Chicago Press

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

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