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