David Luban

Liberalism, Torture, and the Ticking Bomb

ORTURE used to be incompatible with American values. Our Bill of Rights forbids cruel and unusual punishment, and that has come to include all forms of corporal punishment except prison and death by methods purported to be painless. Americans and our government have historically condemned states that torture; we have granted asylum or refuge to those who fear it. The Senate ratified the Convention Against Torture, Congress enacted antitorture legislation, and judicial opinions spoke of “the dastardly and totally inhuman act of torture.” T

Human Dignity, Humiliation, and Torture

Modern human rights instruments ground human rights in the concept of human dignity, without providing an underlying theory of human dignity. This paper examines the central importance of human dignity, understood as not humiliating people, in traditional Jewish ethics. It employs this conception of human dignity to examine and criticize U.S. use of humiliation tactics and torture in the interrogation of terrorism suspects.

Mental Torture: A Critique of Erasures in U.S. Law

Both international and federal law criminalize mental torture as well as physical torture, and both agree that “severe mental pain or suffering” defines mental torture. However, U.S. law provides a confused and convoluted definition of severe mental pain or suffering - one that falsifies the very concept and makes mental torture nearly impossible to prosecute or repress. Our principal aim is to expose the fallacies that underlie the U.S. definition of mental torture: first, a materialist bias that the physical is more real than the mental; second, a substitution trick that defines mental pain or suffering through a narrow set of causes and effects, ignoring the experience itself; third, a forensic fallacy, in which the due process requirements of specificity in criminal law become wrongly identified with defining characteristics of the crime of torture (an understanding that loops back to corrupt the law); and fourth, a mens rea requirement that excludes all mental torture not committed with the sadistic intention of causing long-lasting harm. Our article begins with an analysis of the concept of mental pain and suffering, as well as a factual discussion of U.S. practice. We also examine the legislative history of the definition in U.S. law. We demonstrate that it derives from political concerns that other countries might accuse U.S. law enforcement personnel of torture. We conclude by examining the specific evil of mental torture: the merciless attempt to break down and occupy the personality of the victim.

War crimes and collective wrongdoing : a reader

List of Contributors. Preface. Acknowledgments. Introduction: Anthony Ellis (Virginia Commonwealth University). Part I: What are War Crimes?:. 1. Unchosen Evil and Moral Responsibility: Peter French (University of South Florida). 2. War Crimes and Human Rights: Alan Gewirth (University of Chicago). 3. War Crimes: Moral, Legal or Simply Political?: Jovan Babic (University of Belgrade). Afterword. Further Reading. Part II: Trials for War Crimes:. 4. War Crimes and Virtue Ethics: Michael Slote (University of Maryland, College Park). 5. Whose Trials? Whose Reconciliation?: Burleigh Wilkins (University of California, Santa Barbara). 6. What Should We Do With War Criminals?: Anthony Ellis (Virginia Commonwealth University). 7. Accountability and the Legacy of Nuremberg: Richard Falk (Princeton University). Afterword. Further Reading. Part III: Nationalism and Collective Wrongdoing:. 8. Secession and Self--Determination A Legal, Moral, and Political Analysis: Alfred Rubin (Tufts University). Afterword. Further Reading. Part IV: The Aftermath of Collective Wrongdoing:. 9. Collective Responsibility, a Moral Luck,a and Reconciliation: David Cooper (University of Durham). 10. Collective Remorse: Margaret Gilbert (University of Connecticut, Storrs). 11. Reparations to Native Americans?: Angelo Corlett (San Diego State University). 12. Transitional Justice and International Civil Society: David Crocker (University of Maryland). Afterword. Further Reading. Index.

Military Necessity and the Cultures of Military Law

Military and humanitarian lawyers approach the laws of war in different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. The result is two interpretive communities that systematically disagree not only over the meaning of particular law-of-war norms, but also over the sources and methods of law that could be used to resolve the disagreements. That raises the question whether military lawyers’ advice should acknowledge any validity to the contrary views of the ‘humanitarian’ community. The article offers a systematic analysis of the concept of military necessity, showing that civilian interests must figure in assessing military necessity itself. Even on its own terms, the military version of the law of war should seek to accommodate the civilian perspectives featured in the humanitarian version.

The Rule of Law and Human Dignity: Re-examining Fuller’s Canons

Lon Fuller offered an analysis of the rule of law in the form of eight ‘canons’’ of lawmaking. He argued (1) that these canons constitute a ‘procedural natural law’, as distinct from traditional ‘substantive’’ natural law; but also (2) that lawmaking conforming to the canons will enhance human dignity — a ‘substantive’’ result. This paper argues the following points: first, that Fuller mischaracterized his eight canons, which are substantive rather than procedural; second, that there is an important sense in which they enhance human dignity; third, that they fail to enhance human dignity to the fullest extent because they understand it in an overly libertarian fashion; and fourth, that Fuller’s overall approach to jurisprudence, in which the standpoint of practicing lawyers (not judges, legislators, or citizens) predominates, offers important insights into achieving congruence between the law ‘in books’’ and law’s enforcement. However, to succeed such an account must emphasize the lawyer’s counseling role and access to legal services, which Fuller neglects.

Is There a Human Right to a Lawyer

In this brief paper I want to pose two questions. First, is there a human right to a lawyer? Second, what ethical responsibilities on the legal profession might follow from recognising such a right? The first is a question about human rights, while the second is a question about legal ethics. Let us begin with the first. Is there a human right to a lawyer? A cynic might answer: only in the wildest fantasies of the legal profession. Wouldn’t it be nice for lawyers if their employment opportunities were required by international human rights? Forget about clothing the naked or feeding the hungry. Instead, give them lawyers and—in the words of a well-known law review article— ‘let them eat due process’. I hope to show that the question is not as absurd as this. Seeing why will require us to examine the idea of international human rights and the roles that legal institutions and lawyers play in fulfilling them. But before doing so, let me simply sketch the main argument. It begins by observing that within complex modern societies, legal systems are central to protecting primary, or non-derivative, human rights—the familiar catalogue of human rights to security, subsistence and dignified treatment embodied in familiar human rights instruments like the Universal Declaration of Human Rights (UDHR). It follows—or so I shall argue—that we have a derivative human right to a legal system. By a derivative human right, I mean a right to institutions necessary to guarantee non-derivative basic rights against standard threats. Morally acceptable legal systems embody rule of law values; thus, one might add that there is a derivative human right to the rule of law. And the rule of law requires people to be able to know and understand their legal obligations and opportunities, and to be able to work the levers of legal institutions even if their personal abilities and educational attainment make that impossible. That is why access to justice is a human rights issue, and where the right to lawyers come in. It is worth noticing that the International Covenant on Civil and Political Rights already includes a right of anyone charged with a crime ‘to have legal assistance assigned to him ...

Lawyers as Upholders of Human Dignity (When They Aren't Busy Assaulting It)

David Luban argues in this lecture that the moral foundation of the lawyer’s profession lies in the defense of human dignity—and the chief moral danger facing the profession arises when lawyers assault human dignity rather than defend it. The concept of human dignity has a rich philosophical tradition, with some philosophers identifying human dignity as a metaphysical property of individuals—a property such as having a soul, or possessing autonomy. Luban argues instead that human dignity is a relational property of “the dignifier” and “the dignified,” emphasizing that assaulting human dignity humiliates the victim. Lawyers honor the human dignity of others by protecting them against humiliations, and defile that dignity by subjecting them to humiliations. The lecture develops these ideas through four traditional issues in legal ethics: the right of criminal defendants to an advocate, the duty of confidentiality, paternalism of attorneys toward their clients, and pro bono service.

Demystifying Political Violence: Some Bequests of ICTY and ICTR

As Sara Kendall and Sarah M. H. Nouwen rightly notice, “legacy” is a big word, and it may be too soon even to begin to evaluate the legacies of the international criminal tribunals. Legacies are whatever future generations take from the tribunals. That, obviously, is in their hands, not the hands of the tribunals. So the question of legacies is more properly a question of bequests, and the inquiry must be a modest one: how do we evaluate the successes and failures of the tribunals in the here and now rather than the further future? Failures matter as well as successes, and as in science, failures can be as instructive and useful as successes. For example, many observers concluded that the tribunals, operating in The Hague and Arusha without an initial ground game in former Yugoslavia or Rwanda, were too far removed from the peoples who experienced the crimes; that perception helped motivate the movement toward hybrid tribunals. If that is right, the hybrid model counts amongthe “legacies” oftheInternational Criminal Tribunal for the Former Yugoslavia (ICTY)and the International Criminal Tribunal for Rwanda (ICTR), if only in the negative way that they exposed a problem the hybrids tried to remedy. As another example, Kendall and Nouwen remarkthat the impunity of the RPF has also become part of ICTR’s legacy. That too would be an instructive failure—instructive, in this case, as a foretaste of how difficult it is to prosecute cases against an intransigent government in power, a lesson that the International Criminal Court’s (ICC)troubles in Sudan and Kenya confirm.

Unsatisfying Wars: Degrees of Risk and the Jus ex Bello

We suggest thinking about the beginning and ending of wars as an exercise in risk management. We argue that states, like individual citizens, must accept that some degree of security risk is inevitable when coexisting with others. We offer two principles for the just management of military risk. The first principle is Morally Justified Bearable Risk, which demands that parties at war temper their claims of justice with the realities of an anarchic and conflicted international system. The second principle, Minimum Consistency toward Risk, mandates that states generally not weigh security threats higher than risks from other sources.