Elizabeth Lira
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199291922
- eISBN:
- 9780191603716
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199291926.003.0003
- Subject:
- Political Science, International Relations and Politics
This paper describes the reparations programs implemented in Chile from 1990 to 2004. These programs target the victims of human rights violations committed during the military regime (1973-1990). ...
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This paper describes the reparations programs implemented in Chile from 1990 to 2004. These programs target the victims of human rights violations committed during the military regime (1973-1990). These include the relatives of the missing and executed persons; people who were dismissed from their jobs for political motives; peasants who participated in land reform and were expelled from the land for political reasons; and Chilean exiles returning to the country. Political prisoners and torture victims were considered only in 2003. The creation of the Commission for Political Imprisonment and Torture (2003-2005) was followed by a law which provides pensions to political prisoners and torture victims identified by the Commission. Created with different kinds of victims in mind, these programs were based on pensions, social services, educational benefits, and public recognition of the violations of the victims’ rights, monuments, sites of memory, and health assistance, mainly in the form of mental health services. The Program for Reparation and Integral Health Assistance for Victims of Human Rights Violations, created in 1991 and reinforced by a law at the end of 2004, has been the reparation measure for all kinds of victims of human rights violations, including third-generation relatives.Less
This paper describes the reparations programs implemented in Chile from 1990 to 2004. These programs target the victims of human rights violations committed during the military regime (1973-1990). These include the relatives of the missing and executed persons; people who were dismissed from their jobs for political motives; peasants who participated in land reform and were expelled from the land for political reasons; and Chilean exiles returning to the country. Political prisoners and torture victims were considered only in 2003. The creation of the Commission for Political Imprisonment and Torture (2003-2005) was followed by a law which provides pensions to political prisoners and torture victims identified by the Commission. Created with different kinds of victims in mind, these programs were based on pensions, social services, educational benefits, and public recognition of the violations of the victims’ rights, monuments, sites of memory, and health assistance, mainly in the form of mental health services. The Program for Reparation and Integral Health Assistance for Victims of Human Rights Violations, created in 1991 and reinforced by a law at the end of 2004, has been the reparation measure for all kinds of victims of human rights violations, including third-generation relatives.
Carl Wellman
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199744787
- eISBN:
- 9780199827138
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199744787.001.0001
- Subject:
- Philosophy, General
This book discusses all three species of human rights—moral, international, and national—at length, but it pays special attention to the moral reasons that are relevant to each species. The first ...
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This book discusses all three species of human rights—moral, international, and national—at length, but it pays special attention to the moral reasons that are relevant to each species. The first part develops an original view of the nature and grounds of moral human rights based on the author’s previous publications in the general theory of rights. If respected, they confer some sphere of dominion on the right-holder in some potential confrontation and are grounded on specifically moral reasons. The second part explains how moral human rights are relevant to both the justification and the interpretation of human rights in international law and identifies several other relevant moral considerations, such as peace and social justice. The third part argues that different kinds of moral and international human rights ought to be incorporated into national legal systems in four distinct ways: in a written constitution, judicial decisions, legislation, and human rights treaties. Finally it explains how the moral dimensions of human rights are relevant to the alleged use of torture in the interrogation of detainees in the Bush administration war on terrorism.Less
This book discusses all three species of human rights—moral, international, and national—at length, but it pays special attention to the moral reasons that are relevant to each species. The first part develops an original view of the nature and grounds of moral human rights based on the author’s previous publications in the general theory of rights. If respected, they confer some sphere of dominion on the right-holder in some potential confrontation and are grounded on specifically moral reasons. The second part explains how moral human rights are relevant to both the justification and the interpretation of human rights in international law and identifies several other relevant moral considerations, such as peace and social justice. The third part argues that different kinds of moral and international human rights ought to be incorporated into national legal systems in four distinct ways: in a written constitution, judicial decisions, legislation, and human rights treaties. Finally it explains how the moral dimensions of human rights are relevant to the alleged use of torture in the interrogation of detainees in the Bush administration war on terrorism.
Yuval Ginbar
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199540914
- eISBN:
- 9780191716256
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199540914.003.0016
- Subject:
- Law, Human Rights and Immigration
This chapter concludes Part III, which examines four models of legalized torture. Neither Israel nor the USA have succeeded in limiting torture to ticking bomb situations (or to high value ...
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This chapter concludes Part III, which examines four models of legalized torture. Neither Israel nor the USA have succeeded in limiting torture to ticking bomb situations (or to high value detainees), although both states have refined their models in an effort to do so. Both states claim, probably rightly in some specific cases, that torturing (not so named) has thwarted terrorist attacks and saved lives. Neither, however, has claimed to have thereby put an end to such attacks, and the counterclaim that torture has overall done more harm than good, including in terms of human lives, cannot easily be refuted. Other conclusions are to be drawn following the discussion of salient legal issues arising from the models, in Part IV.Less
This chapter concludes Part III, which examines four models of legalized torture. Neither Israel nor the USA have succeeded in limiting torture to ticking bomb situations (or to high value detainees), although both states have refined their models in an effort to do so. Both states claim, probably rightly in some specific cases, that torturing (not so named) has thwarted terrorist attacks and saved lives. Neither, however, has claimed to have thereby put an end to such attacks, and the counterclaim that torture has overall done more harm than good, including in terms of human lives, cannot easily be refuted. Other conclusions are to be drawn following the discussion of salient legal issues arising from the models, in Part IV.
Yuval Ginbar
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199540914
- eISBN:
- 9780191716256
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199540914.003.0017
- Subject:
- Law, Human Rights and Immigration
This chapter introduces Part IV, where three issues raised by the discussion of the models in Part III are to be examined. The question of whether or not the interrogation methods used in the US and ...
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This chapter introduces Part IV, where three issues raised by the discussion of the models in Part III are to be examined. The question of whether or not the interrogation methods used in the US and Israeli models constitute torture under international legal definitions or are even unlawful at all, for instance as ‘cruel, inhuman, or degrading treatment’ is discussed first, followed by an analysis of the ‘defence of necessity’ as a putative basis for exempting torturers in ticking bomb situations from criminal responsibility. This issue will be analysed both in the context of national and international criminal law. Thirdly, in concluding this Part, the applicability of that defence and other ex post mechanisms to the reality of states facing terrorism in the early 21st century will be discussed.Less
This chapter introduces Part IV, where three issues raised by the discussion of the models in Part III are to be examined. The question of whether or not the interrogation methods used in the US and Israeli models constitute torture under international legal definitions or are even unlawful at all, for instance as ‘cruel, inhuman, or degrading treatment’ is discussed first, followed by an analysis of the ‘defence of necessity’ as a putative basis for exempting torturers in ticking bomb situations from criminal responsibility. This issue will be analysed both in the context of national and international criminal law. Thirdly, in concluding this Part, the applicability of that defence and other ex post mechanisms to the reality of states facing terrorism in the early 21st century will be discussed.
Alexandra Barahona De Brito, Carmen Gonzalez Enriquez, and Paloma Aguilar (eds)
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240906
- eISBN:
- 9780191598869
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240906.001.0001
- Subject:
- Political Science, Democratization
The book explores how new democracies face an authoritarian past and past human rights violations, and the way in which policies of truth and justice shape the process of democratization. Eighteen ...
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The book explores how new democracies face an authoritarian past and past human rights violations, and the way in which policies of truth and justice shape the process of democratization. Eighteen countries in Central and South America, Central, Eastern and South Europe and South Africa are analysed in detail. The main variables affecting the implementation of truth and justice policies (purges, truth commissions and trials, among other policies) are: the balance between old and new regime forces; the availability of institutional, human and financial resources, the nature of the ideological preferences and commitments of the elites in question; the mobilization of social groups pressing in favour of these policies; and the importance of human rights in the international arena. The duration and degree of institutionalization of dictatorship is also important. A prolonged dictatorship makes it harder for a new democracy to implement truth and justice policies, particularly when repression occurred in the distant past and if repression gained social complicity. The magnitude and methods of repression used against opposition forces in the dictatorship also shape transitional truth and justice: torture, assassination, and disappearances and clandestine repression in general (as in Central and South America, South Africa) require a different response to official institutionalized ‘softer’ repression (as in Portugal, Spain and Eastern Europe). The findings indicate that, with hindsight, there appears to be no direct relation between the implementation of policies of backward-looking truth and justice and the quality of new democracies. Democracy is just as strong and deep in Spain, Hungary and Uruguay, where there was no punishment or truth telling, as it is in Portugal, the Czech Republic or Argentina, which experienced purges and trials. However, such policies are justified not merely on instrumental grounds, but also for ethical reasons, and they symbolize a break with a violent, undemocratic past.Less
The book explores how new democracies face an authoritarian past and past human rights violations, and the way in which policies of truth and justice shape the process of democratization. Eighteen countries in Central and South America, Central, Eastern and South Europe and South Africa are analysed in detail. The main variables affecting the implementation of truth and justice policies (purges, truth commissions and trials, among other policies) are: the balance between old and new regime forces; the availability of institutional, human and financial resources, the nature of the ideological preferences and commitments of the elites in question; the mobilization of social groups pressing in favour of these policies; and the importance of human rights in the international arena. The duration and degree of institutionalization of dictatorship is also important. A prolonged dictatorship makes it harder for a new democracy to implement truth and justice policies, particularly when repression occurred in the distant past and if repression gained social complicity. The magnitude and methods of repression used against opposition forces in the dictatorship also shape transitional truth and justice: torture, assassination, and disappearances and clandestine repression in general (as in Central and South America, South Africa) require a different response to official institutionalized ‘softer’ repression (as in Portugal, Spain and Eastern Europe). The findings indicate that, with hindsight, there appears to be no direct relation between the implementation of policies of backward-looking truth and justice and the quality of new democracies. Democracy is just as strong and deep in Spain, Hungary and Uruguay, where there was no punishment or truth telling, as it is in Portugal, the Czech Republic or Argentina, which experienced purges and trials. However, such policies are justified not merely on instrumental grounds, but also for ethical reasons, and they symbolize a break with a violent, undemocratic past.
Yuval Ginbar
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199540914
- eISBN:
- 9780191716256
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199540914.003.0006
- Subject:
- Law, Human Rights and Immigration
This chapter concludes the discussion of the ticking bomb question as a one of pure individual morality. For the purpose of defending an absolute prohibition on torture a minimal absolutist position, ...
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This chapter concludes the discussion of the ticking bomb question as a one of pure individual morality. For the purpose of defending an absolute prohibition on torture a minimal absolutist position, rather than a wider moral theory, is sufficient. The overwhelming strength of the ‘numbers’ in the torture-justifying argument is also its moral downfall, among other things because it must allow the torture of the innocent, making each of us, potentially, a victim of torture — as well as a torturer. The qualities of character needed for one person to inflict unimaginable cruelty upon another cannot sit easily with our concept of a good character. A torture-justifier would indeed commit atrocities, where necessary, to save us, but only if we belong to a large enough number of potential victims. The minimal absolutist, in contrast, would always do anything humanly possible to save innocent lives.Less
This chapter concludes the discussion of the ticking bomb question as a one of pure individual morality. For the purpose of defending an absolute prohibition on torture a minimal absolutist position, rather than a wider moral theory, is sufficient. The overwhelming strength of the ‘numbers’ in the torture-justifying argument is also its moral downfall, among other things because it must allow the torture of the innocent, making each of us, potentially, a victim of torture — as well as a torturer. The qualities of character needed for one person to inflict unimaginable cruelty upon another cannot sit easily with our concept of a good character. A torture-justifier would indeed commit atrocities, where necessary, to save us, but only if we belong to a large enough number of potential victims. The minimal absolutist, in contrast, would always do anything humanly possible to save innocent lives.
Yuval Ginbar
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199540914
- eISBN:
- 9780191716256
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199540914.003.0007
- Subject:
- Law, Human Rights and Immigration
This chapter introduces Part II, examining the ticking bomb question as one of public, practical, morality in the real world, namely whether it is morally justifiable for democratic states facing ...
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This chapter introduces Part II, examining the ticking bomb question as one of public, practical, morality in the real world, namely whether it is morally justifiable for democratic states facing terrorism to torture in order to save many innocent lives. It outlines the parameters for discussing the question. Part II is to first address the question of whether transferring the ‘torture in a ticking bomb situation’ (TBS) moral dilemma from the private to the public sphere in itself entails a different moral solution. Secondly, the question is to be addressed of whether — accepting arguendo that torture in this situation is morally justified — states can torture in TBSs while limiting both torture and its direct and indirect harm to a morally acceptable level, or else must slide down an inevitable, and intolerable ‘slippery slope’. ‘Slippery surface’ dangers unique to the public sphere are also discussed.Less
This chapter introduces Part II, examining the ticking bomb question as one of public, practical, morality in the real world, namely whether it is morally justifiable for democratic states facing terrorism to torture in order to save many innocent lives. It outlines the parameters for discussing the question. Part II is to first address the question of whether transferring the ‘torture in a ticking bomb situation’ (TBS) moral dilemma from the private to the public sphere in itself entails a different moral solution. Secondly, the question is to be addressed of whether — accepting arguendo that torture in this situation is morally justified — states can torture in TBSs while limiting both torture and its direct and indirect harm to a morally acceptable level, or else must slide down an inevitable, and intolerable ‘slippery slope’. ‘Slippery surface’ dangers unique to the public sphere are also discussed.
Colin Dayan
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691070919
- eISBN:
- 9781400838592
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691070919.001.0001
- Subject:
- Literature, Criticism/Theory
Abused dogs, prisoners tortured in Guantánamo and supermax facilities, or slaves killed by the state—all are deprived of personhood through legal acts. Such deprivations have recurred throughout ...
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Abused dogs, prisoners tortured in Guantánamo and supermax facilities, or slaves killed by the state—all are deprived of personhood through legal acts. Such deprivations have recurred throughout history, and the law sustains these terrors and banishments even as it upholds the civil order. Examining such troubling cases, this book tackles key societal questions: How does the law construct our identities? How do its rules and sanctions make or unmake persons? And how do the supposedly rational claims of the law define marginal entities, both natural and supernatural, including ghosts, dogs, slaves, terrorist suspects, and felons? The book looks at how the law disfigures individuals and animals, and how slavery, punishment, and torture create unforeseen effects in our daily lives. Moving seamlessly across genres and disciplines, the book considers legal practices and spiritual beliefs from medieval England, the North American colonies, and the Caribbean that have survived in our legal discourse, and it explores the civil deaths of felons and slaves through lawful repression. Tracing the legacy of slavery in the United States in the structures of the contemporary American prison system and in the administrative detention of ghostly supermax facilities, the book also demonstrates how contemporary jurisprudence regarding cruel and unusual punishment prepared the way for abuses in Abu Ghraib and Guantánamo. Using conventional historical and legal sources to answer unconventional questions, the book illuminates stark truths about civil society's ability to marginalize, exclude, and dehumanize.Less
Abused dogs, prisoners tortured in Guantánamo and supermax facilities, or slaves killed by the state—all are deprived of personhood through legal acts. Such deprivations have recurred throughout history, and the law sustains these terrors and banishments even as it upholds the civil order. Examining such troubling cases, this book tackles key societal questions: How does the law construct our identities? How do its rules and sanctions make or unmake persons? And how do the supposedly rational claims of the law define marginal entities, both natural and supernatural, including ghosts, dogs, slaves, terrorist suspects, and felons? The book looks at how the law disfigures individuals and animals, and how slavery, punishment, and torture create unforeseen effects in our daily lives. Moving seamlessly across genres and disciplines, the book considers legal practices and spiritual beliefs from medieval England, the North American colonies, and the Caribbean that have survived in our legal discourse, and it explores the civil deaths of felons and slaves through lawful repression. Tracing the legacy of slavery in the United States in the structures of the contemporary American prison system and in the administrative detention of ghostly supermax facilities, the book also demonstrates how contemporary jurisprudence regarding cruel and unusual punishment prepared the way for abuses in Abu Ghraib and Guantánamo. Using conventional historical and legal sources to answer unconventional questions, the book illuminates stark truths about civil society's ability to marginalize, exclude, and dehumanize.
Scott A. Anderson and Martha C. Nussbaum (eds)
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780226529387
- eISBN:
- 9780226529554
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226529554.001.0001
- Subject:
- Law, Human Rights and Immigration
This book gathers fourteen essays on torture, addressing its complexities from the perspectives of psychology, history, philosophy, law, and cultural commentary. It appears in the wake of the ...
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This book gathers fourteen essays on torture, addressing its complexities from the perspectives of psychology, history, philosophy, law, and cultural commentary. It appears in the wake of the American “War on Terror,” and the apparent evaporation of a broad consensus in international law, the U.S. legal community, and public thinking that torture is never an acceptable act, even in war. The chapters of the book seek to understand the historical and cultural roots of torture; to assess its impacts on survivors, their societies, and those who engage in it or with its victims; to consider philosophical arguments about its justification; and to consider how law and lawyers should confront the problem of torture. While there is no single message or thesis running throughout the book, all of the chapters seek to bring out the complexity of torture as a social, psychological, legal and ethical problem. The introductory chapter, by torture survivor Albie Sachs, who went on to become a justice on the Constitutional Court of South Africa, demonstrates many of the challenges that torture creates for a society, and for conceiving justice in the wake of torture. Many of the subsequent chapters address the possibilities and difficulties for law and social institutions to respond effectively to torture by creating legal frameworks and structural barriers to guard against the temptations that torture offers. While none of the chapters defend using torture, many grapple with the difficulties of explaining convincingly why ethics absolutely prohibits torture.Less
This book gathers fourteen essays on torture, addressing its complexities from the perspectives of psychology, history, philosophy, law, and cultural commentary. It appears in the wake of the American “War on Terror,” and the apparent evaporation of a broad consensus in international law, the U.S. legal community, and public thinking that torture is never an acceptable act, even in war. The chapters of the book seek to understand the historical and cultural roots of torture; to assess its impacts on survivors, their societies, and those who engage in it or with its victims; to consider philosophical arguments about its justification; and to consider how law and lawyers should confront the problem of torture. While there is no single message or thesis running throughout the book, all of the chapters seek to bring out the complexity of torture as a social, psychological, legal and ethical problem. The introductory chapter, by torture survivor Albie Sachs, who went on to become a justice on the Constitutional Court of South Africa, demonstrates many of the challenges that torture creates for a society, and for conceiving justice in the wake of torture. Many of the subsequent chapters address the possibilities and difficulties for law and social institutions to respond effectively to torture by creating legal frameworks and structural barriers to guard against the temptations that torture offers. While none of the chapters defend using torture, many grapple with the difficulties of explaining convincingly why ethics absolutely prohibits torture.
Jennifer A. Glancy
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195328158
- eISBN:
- 9780199777143
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328158.003.0005
- Subject:
- Religion, Church History, Early Christian Studies
In daily practice the embodied interactions and embodied self-understandings of Christians were subject to the status-conscious corporal pedagogy of the Roman Empire. Socially located experiences ...
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In daily practice the embodied interactions and embodied self-understandings of Christians were subject to the status-conscious corporal pedagogy of the Roman Empire. Socially located experiences inform what a body knows. Nonetheless, corporal epistemology—what a body knows—exceeds inscription by social location. While social location is inevitably implicated in corporal knowing, what is known in the body is not exhausted by location in a social grid. In disturbing ways, the practice of torture relies on parallel logic, that is, on the conviction that truth can be beaten out of bodies and squeezed from flesh. In light of ongoing debates about torture, claims about corporal knowing are not anodyne claims. The epilogue nonetheless acknowledges the diverse phenomena of corporal knowing and the significance of those phenomena for a cultural history of Christian origins.Less
In daily practice the embodied interactions and embodied self-understandings of Christians were subject to the status-conscious corporal pedagogy of the Roman Empire. Socially located experiences inform what a body knows. Nonetheless, corporal epistemology—what a body knows—exceeds inscription by social location. While social location is inevitably implicated in corporal knowing, what is known in the body is not exhausted by location in a social grid. In disturbing ways, the practice of torture relies on parallel logic, that is, on the conviction that truth can be beaten out of bodies and squeezed from flesh. In light of ongoing debates about torture, claims about corporal knowing are not anodyne claims. The epilogue nonetheless acknowledges the diverse phenomena of corporal knowing and the significance of those phenomena for a cultural history of Christian origins.
James Griffin
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195325195
- eISBN:
- 9780199776412
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195325195.003.0001
- Subject:
- Philosophy, Moral Philosophy, General
This chapter attempts to clarify the claim that there should be an absolute prohibition against torture. To clarify the claim, it is important to have a clear understanding of what we mean by ...
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This chapter attempts to clarify the claim that there should be an absolute prohibition against torture. To clarify the claim, it is important to have a clear understanding of what we mean by torture. Treatment that destroys rational agency, and thereby undermines human dignity, defines the heart of human torture. George W. Bush's administration, in defining torture as prolonged physical or mental damage, offered a misleading and dangerous definition of torture. Given our acceptance of killing in self‐defense and of so‐called ticking‐bomb scenarios, we cannot in theory accept an absolute prohibition of torture. However, we still might believe it right to ban torture in practice. The limits of our motivation and of our understanding — our near‐invincible ignorance — might lead us to think it best to block, if we could, any policy that would allow torture. In this regard, it is important to see the weaknesses of Alan Dershowitz's and of Richard Posner's proposals for allowing a limited use of torture. Still, we cannot rule out that there could be exceptions that would allow for torture. But to act on these exceptions, we would need to know how to weigh the considerations for and against torture in particular exceptional situations. It is far from clear, however, that we know how to weigh the relevant considerations or even how to identify the exceptional situations. Given these limitations, it is perhaps best to enforce an absolute prohibition against torture, while hoping that anyone who, contrary to the ban, resorts to torture has correctly identified an exception. Much of moral importance is at stake; but we find ourselves in murky waters.Less
This chapter attempts to clarify the claim that there should be an absolute prohibition against torture. To clarify the claim, it is important to have a clear understanding of what we mean by torture. Treatment that destroys rational agency, and thereby undermines human dignity, defines the heart of human torture. George W. Bush's administration, in defining torture as prolonged physical or mental damage, offered a misleading and dangerous definition of torture. Given our acceptance of killing in self‐defense and of so‐called ticking‐bomb scenarios, we cannot in theory accept an absolute prohibition of torture. However, we still might believe it right to ban torture in practice. The limits of our motivation and of our understanding — our near‐invincible ignorance — might lead us to think it best to block, if we could, any policy that would allow torture. In this regard, it is important to see the weaknesses of Alan Dershowitz's and of Richard Posner's proposals for allowing a limited use of torture. Still, we cannot rule out that there could be exceptions that would allow for torture. But to act on these exceptions, we would need to know how to weigh the considerations for and against torture in particular exceptional situations. It is far from clear, however, that we know how to weigh the relevant considerations or even how to identify the exceptional situations. Given these limitations, it is perhaps best to enforce an absolute prohibition against torture, while hoping that anyone who, contrary to the ban, resorts to torture has correctly identified an exception. Much of moral importance is at stake; but we find ourselves in murky waters.
Andrei Marmor and Scott Soames (eds)
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199572380
- eISBN:
- 9780191728914
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572380.001.0001
- Subject:
- Law, Philosophy of Law
This book brings together the best contemporary philosophical work in the area of the intersection between philosophy of language and the law. Some of the contributors are philosophers of language ...
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This book brings together the best contemporary philosophical work in the area of the intersection between philosophy of language and the law. Some of the contributors are philosophers of language who are interested in applying advances in philosophy of language to legal issues, and some of the participants are philosophers of law who are interested in applying insights and theories from philosophy of language to their work on the nature of law and legal interpretation. By making this body of recent work available in a single volume, this book gives both a general overview of the various interactions between language and law, and also detailed analyses of particular areas in which this interaction is manifest. The contributions to this volume are grouped under three main general areas: The first area concerns a critical assessment, in light of recent advances in philosophy of language, of the foundational role of language in understanding the nature of law itself. The second main area concerns a number of ways in which an understanding of language can resolve some of the issues prevalent in legal interpretation, such as the various ways in which semantic content can differ from law's assertive content; the contribution of presuppositions and pragmatic implicatures in understanding what the law conveys; the role of vagueness in legal language, for example. The third general topic concerns the role of language in the context of particular legal doctrines and legal solutions to practical problems, such as the legal definitions of inchoate crimes, the legal definition of torture, or the contractual doctrines concerning default rules.Less
This book brings together the best contemporary philosophical work in the area of the intersection between philosophy of language and the law. Some of the contributors are philosophers of language who are interested in applying advances in philosophy of language to legal issues, and some of the participants are philosophers of law who are interested in applying insights and theories from philosophy of language to their work on the nature of law and legal interpretation. By making this body of recent work available in a single volume, this book gives both a general overview of the various interactions between language and law, and also detailed analyses of particular areas in which this interaction is manifest. The contributions to this volume are grouped under three main general areas: The first area concerns a critical assessment, in light of recent advances in philosophy of language, of the foundational role of language in understanding the nature of law itself. The second main area concerns a number of ways in which an understanding of language can resolve some of the issues prevalent in legal interpretation, such as the various ways in which semantic content can differ from law's assertive content; the contribution of presuppositions and pragmatic implicatures in understanding what the law conveys; the role of vagueness in legal language, for example. The third general topic concerns the role of language in the context of particular legal doctrines and legal solutions to practical problems, such as the legal definitions of inchoate crimes, the legal definition of torture, or the contractual doctrines concerning default rules.
F. M. Kamm
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199608782
- eISBN:
- 9780191729577
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199608782.001.0001
- Subject:
- Philosophy, Moral Philosophy, Political Philosophy
This is a book of three philosophical chapters on aspects of terrorism, torture, and war. It relates issues in ethical theory to practical ethics. The chapter on torture considers views about what ...
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This is a book of three philosophical chapters on aspects of terrorism, torture, and war. It relates issues in ethical theory to practical ethics. The chapter on torture considers views about what torture is and the various occasions on which it could occur in order to determine why it might be wrong to torture a wrongdoer held captive, even if this were necessary to save his victims. The discussion of terrorism examines whether it is the intention to harm civilians rather than harm to them being “collateral damage” that makes terrorism distinctively wrong, what else might make it wrong, and whether it is always wrong. The third chapter first discusses whether having a right reason, in the sense of a right intention, is necessary in order for starting war to be just. It then examines ways in which the harms of war can be proportional to the achievement of the just cause and other goods war can bring about, so as to make starting war permissible.Less
This is a book of three philosophical chapters on aspects of terrorism, torture, and war. It relates issues in ethical theory to practical ethics. The chapter on torture considers views about what torture is and the various occasions on which it could occur in order to determine why it might be wrong to torture a wrongdoer held captive, even if this were necessary to save his victims. The discussion of terrorism examines whether it is the intention to harm civilians rather than harm to them being “collateral damage” that makes terrorism distinctively wrong, what else might make it wrong, and whether it is always wrong. The third chapter first discusses whether having a right reason, in the sense of a right intention, is necessary in order for starting war to be just. It then examines ways in which the harms of war can be proportional to the achievement of the just cause and other goods war can bring about, so as to make starting war permissible.
Amos N. Guiora
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195340310
- eISBN:
- 9780199867226
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195340310.003.0007
- Subject:
- Law, Human Rights and Immigration, Constitutional and Administrative Law
Defining limits of coercive interrogation is put to the test when an interrogator is sitting across from someone who is not cooperating and the interrogator knows is in possession of information ...
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Defining limits of coercive interrogation is put to the test when an interrogator is sitting across from someone who is not cooperating and the interrogator knows is in possession of information purported to be urgent. It is exactly at that moment that the previously established lawful limits of interrogation must be implemented, no matter the circumstance. Otherwise, excess will be permitted, encouraged, and will inevitably occur. This chapter is divided into three subsections: 1) definitions of torture; 2) an analysis of interrogation methods based on an Israeli High Court of Justice holding, Ireland v. United Kingdom, and a 1984 Israeli Commission of Inquiry; and 3) an analysis of functional torture and sadistic torture.Less
Defining limits of coercive interrogation is put to the test when an interrogator is sitting across from someone who is not cooperating and the interrogator knows is in possession of information purported to be urgent. It is exactly at that moment that the previously established lawful limits of interrogation must be implemented, no matter the circumstance. Otherwise, excess will be permitted, encouraged, and will inevitably occur. This chapter is divided into three subsections: 1) definitions of torture; 2) an analysis of interrogation methods based on an Israeli High Court of Justice holding, Ireland v. United Kingdom, and a 1984 Israeli Commission of Inquiry; and 3) an analysis of functional torture and sadistic torture.
Magdalena Forowicz
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199592678
- eISBN:
- 9780191595646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592678.003.0006
- Subject:
- Law, Human Rights and Immigration
The case law of the Strasbourg bodies referring to the Convention Against Torture has followed an even, albeit curious development. This chapter analyses the Courts' and the Commission approach to ...
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The case law of the Strasbourg bodies referring to the Convention Against Torture has followed an even, albeit curious development. This chapter analyses the Courts' and the Commission approach to the distinction between torture and other ill-treatment, a notion which remains unclear in international law. The Commission initially indicated that it would follow a purpose-oriented, whereas the Court opted for an approach based on the severity of pain requirement. In the recent times, the Court seems to have focused on a mixture of these approaches. The chapter further discusses the co-existence between the ECtHR and the Committee Against Torture. This aspect was largely unproblematic until now, in part, because it has been scarce and, in part, due to a coherent legislative set up. Finally, a survey of the case law reveals that, in spite of a lack of explicit references to the case of the Committee, there is an important convergence between their respective decisions.Less
The case law of the Strasbourg bodies referring to the Convention Against Torture has followed an even, albeit curious development. This chapter analyses the Courts' and the Commission approach to the distinction between torture and other ill-treatment, a notion which remains unclear in international law. The Commission initially indicated that it would follow a purpose-oriented, whereas the Court opted for an approach based on the severity of pain requirement. In the recent times, the Court seems to have focused on a mixture of these approaches. The chapter further discusses the co-existence between the ECtHR and the Committee Against Torture. This aspect was largely unproblematic until now, in part, because it has been scarce and, in part, due to a coherent legislative set up. Finally, a survey of the case law reveals that, in spite of a lack of explicit references to the case of the Committee, there is an important convergence between their respective decisions.
Elliott Antokoletz
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195365825
- eISBN:
- 9780199868865
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195365825.003.0009
- Subject:
- Music, Opera
This chapter explores the psycho-dramatic and musical bases of the opera, the structural framework as basis for development of psycho-dramatic polarity, power inequality, symbolic musical expression, ...
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This chapter explores the psycho-dramatic and musical bases of the opera, the structural framework as basis for development of psycho-dramatic polarity, power inequality, symbolic musical expression, gender, and power in the modernist conception. Prologue through Door I (Torture Chamber) discusses rhythmic structure and the Hungarian language, characterization, and the intrusion of fate, autobiographical significance and fate, and the emerging symbol of blood. Door I reveals the torture chamber.Less
This chapter explores the psycho-dramatic and musical bases of the opera, the structural framework as basis for development of psycho-dramatic polarity, power inequality, symbolic musical expression, gender, and power in the modernist conception. Prologue through Door I (Torture Chamber) discusses rhythmic structure and the Hungarian language, characterization, and the intrusion of fate, autobiographical significance and fate, and the emerging symbol of blood. Door I reveals the torture chamber.
Toni Erskine
- Published in print:
- 2008
- Published Online:
- January 2012
- ISBN:
- 9780197264379
- eISBN:
- 9780191734410
- Item type:
- book
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197264379.001.0001
- Subject:
- Political Science, International Relations and Politics
This book offers a challenging and original normative approach to some of the most pressing practical concerns in world politics —including the contested nature of the prohibitions against torture ...
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This book offers a challenging and original normative approach to some of the most pressing practical concerns in world politics —including the contested nature of the prohibitions against torture and the targeting of civilians in the war on terror. The author’s vision of ‘embedded cosmopolitanism’ responds to the charge that conventional cosmopolitan arguments neglect the profound importance of community and culture, particularity and passion. Bringing together insights from communitarian and feminist political thought, the author defends the idea that community membership is morally constitutive—while arguing that the communities that define us are not necessarily territorially bounded and that a moral perspective situated in them need not be parochial. The book employs this framework to explore some of the difficult moral dilemmas thrown up by contemporary warfare. Can universal principles of restraint demanded by conventional laws of war be robustly defended from a position that also acknowledges the moral force of particular ties and loyalties? By highlighting the links that exist even between warring communities, the author offers new reasons for giving a positive response—reasons that reconcile claims to local attachments and global obligations. The book provides an account of where we stand in relation to ‘strangers’ and ‘enemies’ in a diverse and divided world, and provides a theoretical framework for addressing the relationship between our moral starting point and the scope of our duties to others.Less
This book offers a challenging and original normative approach to some of the most pressing practical concerns in world politics —including the contested nature of the prohibitions against torture and the targeting of civilians in the war on terror. The author’s vision of ‘embedded cosmopolitanism’ responds to the charge that conventional cosmopolitan arguments neglect the profound importance of community and culture, particularity and passion. Bringing together insights from communitarian and feminist political thought, the author defends the idea that community membership is morally constitutive—while arguing that the communities that define us are not necessarily territorially bounded and that a moral perspective situated in them need not be parochial. The book employs this framework to explore some of the difficult moral dilemmas thrown up by contemporary warfare. Can universal principles of restraint demanded by conventional laws of war be robustly defended from a position that also acknowledges the moral force of particular ties and loyalties? By highlighting the links that exist even between warring communities, the author offers new reasons for giving a positive response—reasons that reconcile claims to local attachments and global obligations. The book provides an account of where we stand in relation to ‘strangers’ and ‘enemies’ in a diverse and divided world, and provides a theoretical framework for addressing the relationship between our moral starting point and the scope of our duties to others.
Isabel Moreira
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199736041
- eISBN:
- 9780199894628
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199736041.003.0002
- Subject:
- Religion, Early Christian Studies
This chapter examines the role of punishment in correction as discussed by early Christian authors and the Roman elite as a way of understanding how punishment became associated with both hell and ...
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This chapter examines the role of punishment in correction as discussed by early Christian authors and the Roman elite as a way of understanding how punishment became associated with both hell and purgatory. It examines metaphors of paternal power and slavery. It suggests that the idea that the elect, too, must suffer violence in the afterlife arose from discussions about original sin at a time when the Roman elite were increasingly anxious about the erosion of legal immunities that had traditionally protected them from judicial torture. It highlights the ongoing importance of the metaphor of slavery to the way corporeal punishment was described in the afterlife, particularly in the Vision of Paul, and it considers notions of retributive justice and the fear of hell.Less
This chapter examines the role of punishment in correction as discussed by early Christian authors and the Roman elite as a way of understanding how punishment became associated with both hell and purgatory. It examines metaphors of paternal power and slavery. It suggests that the idea that the elect, too, must suffer violence in the afterlife arose from discussions about original sin at a time when the Roman elite were increasingly anxious about the erosion of legal immunities that had traditionally protected them from judicial torture. It highlights the ongoing importance of the metaphor of slavery to the way corporeal punishment was described in the afterlife, particularly in the Vision of Paul, and it considers notions of retributive justice and the fear of hell.
Alia Brahimi
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199562961
- eISBN:
- 9780191595059
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562961.003.0004
- Subject:
- Political Science, Political Theory, International Relations and Politics
Examining questions of jus in bello, this chapter begins by applying the principles of proportionality and discrimination to the invasion of Iraq. The analysis then focuses on the Bush ...
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Examining questions of jus in bello, this chapter begins by applying the principles of proportionality and discrimination to the invasion of Iraq. The analysis then focuses on the Bush administration's justifications for the treatment of ‘non‐lawful combatants’ at Guantanamo Bay. Using the logic of ‘supreme emergency’, alleged terrorists were stripped of Geneva Convention protections because the defensive just cause was presented as unusually urgent and the stakes were said to be civilizational. First‐order principles such as the prohibition against torture were qualified by the emergency of the jus ad bellum, thus rendering supposedly absolute human rights contingent upon the state of the world. The Bush administration's ‘choice of evils’ strategy was critiqued by other lawyers, governments, and human rights groups worldwide, as well as by members of the Bush administration's Department of State.Less
Examining questions of jus in bello, this chapter begins by applying the principles of proportionality and discrimination to the invasion of Iraq. The analysis then focuses on the Bush administration's justifications for the treatment of ‘non‐lawful combatants’ at Guantanamo Bay. Using the logic of ‘supreme emergency’, alleged terrorists were stripped of Geneva Convention protections because the defensive just cause was presented as unusually urgent and the stakes were said to be civilizational. First‐order principles such as the prohibition against torture were qualified by the emergency of the jus ad bellum, thus rendering supposedly absolute human rights contingent upon the state of the world. The Bush administration's ‘choice of evils’ strategy was critiqued by other lawyers, governments, and human rights groups worldwide, as well as by members of the Bush administration's Department of State.
EYAL ZAMIR and BARAK MEDINA
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195372168
- eISBN:
- 9780199776078
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372168.003.06
- Subject:
- Law, Philosophy of Law
This chapter presents a constrained cost-benefit analysis of measures taken in the fight against terrorism. It begins by characterizing and criticizing existing normative economic analysis of the ...
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This chapter presents a constrained cost-benefit analysis of measures taken in the fight against terrorism. It begins by characterizing and criticizing existing normative economic analysis of the fight against terrorism as reflecting a simplified ad-hoc balancing. It then presents the central deontological constraints pertaining to the fight on terror. The chapter discusses threshold functions that should be employed in order to determine the permissibility of such measures as targeted killings and torture. It discusses the factors affecting the evaluation of the act's relevant net benefit, and those determining the amount of net benefit required to justify an infringement. It argues that standard economic analysis fails to take into account critical distinctions. These include the distinction between different goals of anti-terrorist measures; the difference between harms the state inflicts through antiterrorist measures, and those resulting from unthwarted terrorist attacks; and the distinction between intended and unintended harm. Deontologically-constrained CBA, which incorporates all of these distinctions, is shown to be methodically workable and normatively superior.Less
This chapter presents a constrained cost-benefit analysis of measures taken in the fight against terrorism. It begins by characterizing and criticizing existing normative economic analysis of the fight against terrorism as reflecting a simplified ad-hoc balancing. It then presents the central deontological constraints pertaining to the fight on terror. The chapter discusses threshold functions that should be employed in order to determine the permissibility of such measures as targeted killings and torture. It discusses the factors affecting the evaluation of the act's relevant net benefit, and those determining the amount of net benefit required to justify an infringement. It argues that standard economic analysis fails to take into account critical distinctions. These include the distinction between different goals of anti-terrorist measures; the difference between harms the state inflicts through antiterrorist measures, and those resulting from unthwarted terrorist attacks; and the distinction between intended and unintended harm. Deontologically-constrained CBA, which incorporates all of these distinctions, is shown to be methodically workable and normatively superior.
