Waldron, Torture, and Virtue

Abstract

In his 2005 article, "Torture and Positive Law", Jeremy Waldron argued that Bush Administration lawyers acted unprofessionally by undermining the prohibition on torture. His argument rests upon two propositions. First, Waldron claims that torture lies on a continuum of 'brutality' which excludes the ordinary imposition of coercion, discomfort, or pressure. Brutality is distinguished, he argues, by the particularly wicked motives of the agent engaging in it. By taking this approach, Waldron hints that his concern is that state agents (and the lawyers responsible for interpreting the torture prohibition) lack an appropriate attitude to their respective institutional functions.Second, Waldron argues that the torture prohibition is an "archetype" in the American legal system. Archetypes represent an addition to the model of law advanced by Ronald Dworkin, sitting alongside rules and principles as part of the 'furniture' of a legal system. An archetype ostensibly makes more "vivid" a principle which underpins an entire body of law. In doing so, it stabilizes that body of law. Undermining an archetype, Waldron claims, can therefore inflict great damage on the legal system. The torture archetype, according to Waldron, exemplifies the principle of non-brutality: the principle that the law and the state should not be brutal in its treatment of citizens.I argue that Waldron has failed to explain what precisely was wrong with attempts to undermine the torture prohibition. His argument depends on a narrow understanding of 'brutality'. This undercuts (at least in part) his claim that the torture prohibition is the archetype for an especially weighty principle. Furthermore, we will see that archetypes, because of their close affinity to slippery slope argumentation, cannot stabilize a body of legal rules in the way that Waldron suggests. These problems are, at best, debilitating. In a short concluding section, I briefly argue that Waldron would have been more successful if he had abandoned his references to archetypes and instead drawn upon an 'argument of virtue' - an argument that taking a given principle seriously requires us to protect or promote it to a particular extent.