Torture, Necessity, and Supreme Emergency: Law and Morality at the End of Law
![handle is hein.journals/valur43 and id is 1609 raw text is: TORTURE, NECESSITY, AND SUPREME
EMERGENCY: LAW AND MORALITY AT THE
END OF LAW
Zachary R. Calo*
I. INTRODUCrION
Torture[,] Jean Bethke Elshtain writes, invariably appears on the
'never' list of the 'forbiddens' of human politics.' Few issues, after all,
are more settled in law and ethics than torture. As one commentator
notes, no other practice except slavery is so universally condemned in
law and human convention as torture.2 Torture is a practice that Cesare
Beccaria, in a statement reflective of the new Enlightenment morality of
the eighteenth century, denounced as a residue of the most barbarous
centuries[.]3 [T]he eradication of the moral and legal basis for
torture[,] Christopher Kutz writes, has been one of the defining
features of post-Enlightenment liberal politics.4 Freedom from
government torture is now unquestionably established as a foundational
human right. Indeed, the importance and clarity of the prohibition
against torture is most evident from its seminal role in the modem
human rights movement. The Universal Declaration of Human Rights,
the founding document of the movement, and the International
Covenant on Civil and Political Rights establish that no person shall be
subjected to torture. The Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment elaborates on this
principle in a singular document, further emphasizing the defining role
that this issue has had in the human rights movement. Enlightenment
political ideals, fulfilled in the idea of universal human rights, have
embraced the principle that torture must be prohibited absolutely and
unqualifiedly.
In addition to its particular role in the human rights movement,
opposition to torture also has been of seminal importance in constructing
the liberal political imagination. As David Luban argues, torture is
* Assistant Professor of Law, Valparaiso University School of Law. Ph.D. candidate,
University of Virginia; Ph.D., University of Pennsylvania; J.D., University of Virginia
School of Law; M.A., The Johns Hopkins University; B.A., The Johns Hopkins University.
1 Jean Bethke Elshtain, Reflection on the Problem of Dirty Hands, in TORTURE: A
COLLECTION 77 (Sanford Levinson ed., 2004).
2 John Alan Cohan, Torture and the Necessity Doctrine, 41 VAL. U. L. REV. 1588 (2007).
3 CESARE BECCARIA, ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS 3 (Richard
Bellamy ed., 2003).
4 Christopher Kutz, Torture, Necessity and Existential Politics, 95 CAL. L. REv. 235, 239
(2007).
1591](ViewImageLocal?handle=hein.journals/valur43&div=43&collection=&method=preview&ext=.png&size=3)
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Torture, Necessity, and Supreme Emergency: Law and Morality at the End of Law
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