Slavery and the phenomenology of torture

Social Research, Spring, 2007 by Sanford Levinson

THE YEAR 2007 WILL BE THE SESQUICENTENNIAL OF THE DRED SCOTT case, perhaps the most reviled case in American constitutional history because of its endorsement of slavery as constitutionally protected. (1) Slavery might have been evil, but this did not prevent its full integration into the warp and woof of American constitutional law, not least because the presumed overarching good of creating and then maintaining a union took precedence over alleviating the plight of slaves. Even if most people believed that a society without slavery would certainly be better than a society with it, they also believed that eliminating slavery was not worth the risk of dissolution of the union and the presumed costs attached to that dire possibility. In this context, one might recall that Lincoln, in his first inaugural address, went out of his way to reassure the slave states not only that he meant no harm to their entrenched practices, but also that that he would support a proposed constitutional amendment that would in effect guarantee the maintenance of slavery in perpetuity, at least in the absence of a voluntary decision by the affected states to cease the practice. And it is worth recalling as well that the Emancipation Proclamation was notorious for failing to free a single slave in the four "union states" where slavery remained fully legal--Missouri, Maryland, Kentucky, and Delaware--not least because of fear of switches in loyalty especially by unionist Missouri and Kentucky slaveholders.

For many, torture is at least as evil as slavery. Yet we have learned, over the past five years especially, that for many Americans the presumed overarching good of maintaining our national security takes precedence over the plight of those subjected to highly coercive, even tortuous, means of interrogation. As with slavery, exceedingly problematic modes of interrogation are being integrated into the warp and woof of our present legal order. And, as with slavery, the possibility of terminating the practice is viewed by many Americans, when all is said and done, as potentially more harmful than maintaining it, with all of its acknowledged costs.

I believe, though, that the most direct reason to look at torture through the prism provided by a 150-year-old case involving chattel slavery is that the most fundamental legal and moral issues raised by slavery and torture are astonishingly similar. Both ultimately raise issues of "sovereignty"--that is, the possession of absolute and unconstrained power--and, therefore, the challenge to "sovereignty" that is implicit in any liberal notion of limited government. Both Dred Scott and those who defend torture today ask us if we believe that there are indeed categories of persons who quite literally have "no rights" that the rest of us are "bound to respect."

This article is divided into three sections: The first discusses why, as both a political theorist of sorts and as a lawyer, I find the issue of torture both compelling and yet intellectually and morally perplexing. The second section is built around my belief that the word "torture" tends basically to be a placeholder, which means that it needs to be filled in with concrete definitions and exemplars that are often lacking. Any serious discussion of the subject--including, obviously, its ethical dimensions--therefore has to confront the reality that there is almost certainly far less agreement than we might hope as to what even counts as torture, let alone if there are any circumstances that might justify its infliction.

This means, among other things, that any real progress with regard to establishing acceptable social policies--as distinguished from engaging in polemical argument--requires that we engage in an altogether unpleasant and grim task of offering fairly precise notions of what counts as torture. This carries with it the ineluctable consequence that to define x, y, and z as "torture" may be to suggest that a through w, however open to criticism and perhaps description as quite awful--perhaps even "cruel, inhuman, and degrading"--is still different from "torture" and thus not subject to the almost unique condemnation connected to the term "torture" and "torturer." One might, of course, say somewhat similar things with regard to "slavery" and "not-slavery," also oft unanalyzed notions.

The last section will take a considerably different tack, and it may be in tension with the thrust of the second section and its emphasis on specificity and concrete acts. I want to raise the possibility that "torture," in a profound sense, is less about concrete acts than about the creation of a phenomenological reality of total control. Indeed, if this effort is successful, it may become quite unnecessary to engage in the acts themselves. As David Sussman has suggested, one might have to consider the possibility that something accurately described as torture "need not involve touching the victim's body, so long as his physical environment is appropriately controlled" (Sussman, 2005: 27). This is no small point, for it suggests that we might be mistaken in concentrating almost exclusively on the extent to which torture necessarily entails what Elaine Scarry so memorably labeled "the body in pain" (Scarry, 1987). The essence of a totalistic system of political control, after all, is that it might not be necessary to inflict pain all that often so long as what Justice Holmes might have called the "sovereign prerogative of the choice to inflict pain" is ever-present. Defending the creation of such phenomenological realities should raise especially profound difficulties for anyone committed to any version of political theory that emphasizes the status of persons as rights-bearing individuals. It is at this point that I will return to the Dred Scott case and focus more extensively on contemporary implications of Chief Justice Taney's horrific sentence describing blacks as "having no rights that whites were bound to respect."