Friday, March 14, 2008

Jeremy Waldron at Columbia

Yesterday was the annual Law and Philosophy talk at Columbia University Law School. The guest speaker was NYU's Jeremy Waldron. The title of the lecture was: "Inhuman and Degrading Treatment: a Non-Realist View", which boiled down to observations on the meaning and a mapping of possible interpretations of the terms "inhuman" and "degrading"; key terms in most legal prohibitions on torture in national and international law. There was also a basic survey of interpretative theories of legal standards (objective, contextual and deliberative).

Waldron's is an atomistic reading of the rule - every term is read in isolation. If an action falls under one of the prohibiting terms ("inhuman" or "degrading") the conduct is prohibited.

I think that a holistic interpretive approach is warranted. The rule should not be read as a prohibition on 1) “inhuman" treatment or 2) "degrading" treatment, but rather as a single prohibition on "inhuman and degrading" treatment. Under the former reading each term stands alone, together forming two different and distinct prohibitions. Under the latter reading the values underlying each term interact to form a single prohibition.

As Waldron himself explains, there are other possible legal terms and catch phrases that do similar work as "inhuman” and “degrading", such as “cruel” or “Shocks the conscious” or “dehumanizing”. The exact terms that are used vary according to place, time and context. These general and somewhat vague standards are woven together in order to create a penumbra of meaning. Meaning that is hard to define, open for interpretation and is not captured by any single concept. Focusing on each term in isolation may cause one to miss the forest for the trees.

“Inhuman” and “degrading” bring different things to the interpretive pot. According to Waldron, “degrading” offers a concern for people’s dignity, honor and for treating people as ends in themselves. “Inhuman” offers a concern for basic human needs and a protection from unbearable treatment (such as the infliction of severe pain). When taken together, through an interpretive process, these concepts capture what is "inhuman and degrading". If taken apart, any conduct falling within the meaning of one prohibiting concept would always be prohibited, even if it happened to further the values underlying the other prohibiting concept. This might entail, at times, unintuitive interpretations.

Example. Jewish circumcision is essentially the physical mutilating of a male baby! It may very well qualify as “inhuman”. However, Jewish circumcision is also, according to some, a form of social initiation, of honoring, an acceptance of the child into the covenant of Abraham etc. - all good stuff of the sort the term “degrading” supposedly protects. According to the atomistic reading, circumcision is prohibited under the statute because it violates the prohibition on "inhuman” treatment. In contrast, circumcision is probably not prohibited by the prohibition on "inhuman and degrading" treatment. I contend that the latter interpretation is the correct one, which is better supported by a holistic reading of the prohibition of “inhuman and degrading" treatment.

Posted by Ori Herstein


Sobek said...

I take no issue with your rejection of the atomistic approach, especially because the language used is clearly subject to either interpretation.

I do take issue with your definition of "inhuman":

"'Inhuman' offers a concern for basic human needs and a protection from unbearable treatment (such as the infliction of severe pain)."

The word can refer either to the inhumanity of the actor or acted upon. You seem to interpret it as the latter -- inhuman is what a human should not be subjected to. I submit that the better reading is what a human should not do.

If you choose to strip down to your underwear, soak yourself in water, and then go outside in a freezing blizzard for three hours, the feeling (and, sooner or later, lack of feeling) will become unbearable and inflict severe pain, and yet no one can say you are being treated inhumanely, within any ordinary sense of that word.

Or a more practical example: if you stage a hunger strike, the pain may be unbearable, but it is all self-inflicted, and again the word "inhumane" seems inapplicable, in the ordinary usage.

Ori Herstein said...

Thanks for this,

I agree that the language can bear both interpretations. I guess the main question is which one is better?

I followed Waldron’s preferred interpretation of “inhuman” because I was criticizing him. I concede (and so does he) that it is a richer concept and you present a complimentary interpretation to it. However, I am not sure we share the same linguistic intuitions on the uses of the term “inhuman” in your examples. Why cannot one inflict inhuman treatment or suffering on oneself? Also, there are cases where the cause of the inhuman state of affairs or treatment is not clearly relatable to an agent, for example in the case of some cases of homelessness in western industrial societies.

Sobek said...

Let me try another example.

Perhaps we can both agree that we should not treat dogs in an "inhuman" fashion. If I treat my dog humanely, in the ordinary sense of that word, it does not mean I am treating the dog like I would a human, but rather that I am acting as a human being should, vis-a-vis dogs.

Carl said...

I wasn't present at Waldron's lecture so I can only speculate on his reasons for reading "and" as "or," but I'd have to imagine he sees "inhuman" and "degrading" not as two discrete concepts, but as two sides of the same coin. As you point out yourself, Waldron views "degrading" treatment as in some sense "dehumanizing." But if this is right, I fail to see any meaningful difference between degrading and inhuman treatment - they are both ways of treating people as less than human, or, to drive my point home, "inhuman."

This is not to say, of course, that the prohibition is somehow redundant. "Degrading" and "inhuman" may have subtle differences in sense or meaning even if they ultimately pick out the same class of activities.

If you are correct in claiming that circumcision is inhuman but not degrading, of course, that would obviously be a counter-example to this interpretation. If I'm reading you correctly, you are suggesting that whether some treatment is degrading depends in part on the attitudes of the agents carrying it out. If the agents believe that the treatment is appropriate or fitting for a human being, then it can't be degrading. On the other hand, you seem to be suggesting that there are objective criteria for determining whether some treatment is inhuman, regardless of the attitudes of the agents toward it.

This may in fact capture the senses of the terms better than the interpretation I'm attributing to Waldron. I'm not sure, however, that you are correct in suggesting that treatment must be both inhuman and degrading to be torture. While I imagine most torturers are interested in degrading their victims and treating them as less than human, it wouldn't make their actions any less objectionable if they believed instead that their victims ought to be tortured because, for example, it is a means of purging them of their sins and making them presentable to Allah. But if this is right, then Waldron's sloppy use of language is perhaps excusable.

Ori Herstein said...

First, I find your dog example more convincing (although, would this not entail extending the protection against torture to animals, or even inanimate objects – one should not deface Michelangelo’s David just for kicks). Second, as I tried to explain, I think the agent-centered interpretation is an important supplement, but is not exhaustive. It does not cover cases where there is no clear agent, for example: “the penal system” can be inhuman without any specific person doing anything that, in and of itself, would count as inhuman. The same is true for my homelessness example.

Thanks for your comments.
I must have not been clear enough. I do not think that an action need be “inhuman” and “degrading” in order to be prohibited. Rather, I think that it must be “inhuman and degrading” in order to be prohibited. What is the difference? In the former case there is a standard conjunctive relation between the two concepts. In the latter case the relation is interpretive – each terms brings certain meanings, values and considerations to the interpretive process of determining whether certain treatment is “inhuman and degrading”.

Marty Lederman said...


Do you by chance have a transcript of Waldron's speech? I'd like to read it.

Personally, I think that in the area that matters most now -- the CIA -- most of the important work is being done not by the CID prohibition, but instead by the basic prohibition in Common Article 3 against "cruel treatment and torture."

But be that as it may, I found it extremely odd for you and your commentors to be expounding at such length on the interpretation of the "rule," without even citing the rule itself, let alone quoting it.

There are three principal "rules" in question:

1. Article 16 of the Convention Against Torture requires that "each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

2. The McCain Amendment, a statute, provides that "no individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment."

Both of these two prohibitions use "or," for what it's worth, thus tending to contradict your preferred "holistic" interpretation. Nonetheless, they have each been construed by our Senate/Congress to prohibit only that conduct that would violate the 5th, 8th or 14th Amendments, of which the prohibition in the Fifth Amendment against conduct that "shocks the conscience" is the norm doing most of the work. I'm not sure how your debate with Waldron bears on that question.

In light of the Senate/Congress's limiting constructions, the most important of the "rules" is:

3. Common Article 3, which provides that "the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [detained persons]:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

[and] * * * (c) outrages upon personal dignity, in particular humiliating and degrading treatment."

Notice that "inhuman" treatment, as such, is not mentioned here. I suppose we could argue about whether subsection (c) covers treatment that is humiliating or degrading but not both, although I think that would be a fairly academic exercise.

Jeremy said...

I agree with Lederman, that Herstein's observations are very strange given that the ICCPR, the UNCAT, the ECHR, and the US Detainees' Treatment Act all talk about "inhuman OR degrading treatment," not "inhuman and degrading treatment."

If Herstein was at the lecture, he would have heard me mention the approach of the UNHRC which IS to treat "cruel, inhuman, or degrading treatment" as a single predicate (CID); and he would have heard my reasons for dissenting from that approach. But of course it is a possible approach. Even if one were to take that approach, it might still be worth engaging in some reflection on the terms "inhuman" and "degrading."

The European Court of Human Rights has long separated the terms in its jurisprudence, and, given the "or" in the ECHR, it would be odd to say that they have made a mistake in doing that. The body of jurisprudence that that Court has produced on this basis of treating "inhuman" and "degrading" as separate terms has been very productive for them. (I do think, however, that it would be good for the ECtHR and similar courts to give more attention to the qualitative distinctions of meaning between "inhuman" and "degrading" as well as a quantitaive distinction undertsood in terms of intensity of suffering. Sometimes they do this with "degrading" on its own; in my view they don't do enough of it.)

I don't mind whether anyone calls that process of reflection "atomism." The question is simply whether reflection on the various terms is productive of deeper and better understanding.

Ori Herstein said...


Thank you for commenting.

My observations about the “rule” where generalized. The talk did not track any specific rule. It started with establishing that certain key terms are used in several positive rules and that therefore it was a worthwhile project to explore the meaning of those terms. Beyond the exposition, the talk was not positivistic in nature and therefore neither were my observations. Considering this background I hope you do no longer find my observations “strange”. I accept your judgment, without personal knowledge, that my post was mostly an academic excise (that it is after all the nature of the academic business).

There was no transcript of the talk and I did not make notes, sorry. However, seeing that the man himself has joined in the conversation, perhaps he could be of further assistance.


Thank you for commenting.

Reflecting about the meaning of the terms, even in isolation, is obviously “productive for gaining a deeper and better understanding”. I take it that is what interpretation is, and when done well, as it was done in the talk, it furthers knowledge and understanding. I do not dispute this. One thing I am less sure about is why is an approach “very strange”, when that approach is a “possible approach” that justifies reflection and criticism by the speaker. In any case, thank you for a very interesting talk.

Shlomi said...

I did not attend the lecture, so my comment is based on the post and the following comments. While I think both approaches are plausible, I think that the argument supporting one or the other should not be based on whether the ICCPR, the UNCAT, the ECHR separate the terms or not. The issue is what approach gives better protection (if any) to human rights violations, or which one better captures the kind of activities the rules referring to "inhuman" and/or "degrading" are aimed at preventing. Presumably, inhuman OR degrading provides broader protection, but I must admit I am not very convinced that US detainees enjoy that anyway.

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