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30 Cardozo L. Rev. 1411 (2008-2009)
Why is Torture Different and How Different Is It

handle is hein.journals/cdozo30 and id is 1421 raw text is: WHY IS TORTURE DIFFERENT AND HOW DIFFERENT IS IT? Sherry F. Colb* ABSTRACT Almost every serious commentator to address the moral and legal question of torture has taken for granted the proposition that the infliction of torture is a sufficiently grave evil to require a distinctly demanding moral scrutiny, one that categorically sets torture apart from other terrible things (including killing) that human beings do to one another. To borrow from the Supreme Court's death penalty jurisprudence, most people agree that torture is different. Under the Eighth Amendment, the fact that death is different does not rule out its application; it simply alters the relevant procedural and substantive standards. By contrast, many scholars believe torture should be entirely out of the question, and positive law gives effect to this view. This Article asks why. Why does torture merit its own moral category when killing does not? The Article asks first whether torture is in fact different at all. To this end, the Article sets out a novel hypothetical case in which a torturer acts in true self-defense. It thereby demonstrates that when circumstances are truly identical, and the self-defense characterization is accurate, the use of torture becomes no more * Professor of Law & Charles Evans Hughes Scholar, Cornell Law School. I wish to acknowledge the tireless and expert research assistance of Mike Baxter, Derek Ettinger, and Jason M. Levy. As a Ph.D. in philosophy and a brilliant critical reader, Derek Ettinger was especially helpful in providing suggestions and references to help challenge and ultimately bolster the philosophical foundations of this piece. I also thank A. Mark Colb for suggesting readings about the Algerian War and for providing helpful thoughts on the subject of my paper. Thanks are due as well to the members of the Columbia Law School and St. John's Law School faculties who attended workshops at which I presented earlier drafts of this paper. Though I cannot remember everyone who contributed, the following individuals provided useful comments, questions, and suggestions at workshops or thereafter: Harold Edgar, Charles Biblowit, Charles Bobis, Elaine Chiu, Liz Emens, David Enoch, Jill Fisch, Robert Ferguson, George Fletcher, Paul Kirqis, Anita Krishnakumar, John Leubsdorf, Jens Ohlin, Michael Perino, Joseph Raz, Rosemary Salomone, David Schizer, Elizabeth Scott, Michael Simons, Peter Strauss, Stephen Sugarman, George C. Thomas III, and Matthew Waxman. And last but not least, I am extremely grateful to Michael C. Doff, for reading earlier drafts of the paper and for offering invaluable comments and suggestions along with much encouragement in my pursuit of this project. 1411

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