Thursday, April 23, 2009

Christianity: A Select Bibliography


Our next bibliography in the Directed Reading series covers Christianity. As with our other lists, this one in no way aims to be comprehensive, let alone exhaustive, hence the adjective in the subtitle.

In deference to the fact that this is, after all, a law blog, I'd like to draw your attention to several titles in particular that well document the historical importance of Christian doctrines and ideas to the development of Anglo-American legal traditions. First, there's the two volumes of Harold J. Berman's magisterial study Law and Revolution: Vol. 1, Law and Revolution: The Formation of the Western Legal Legal Tradition (1983), and Vol. 2, Law and Revolution: The Impact of the Protestant Reformations on the Western Legal Tradition (2003). Far more modest in ambition and scope but by my lights no less significant are God's Just Vengeance: Crime, Violence and the Rhetoric of Salvation (1996) by Timothy Gorringe, and James Q. Whitman's The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2008). I'm especially fond of the former work, if only because it explains my visceral dislike of Anselm's
"satisfaction" theory of atonement. With Gorringe, it helps to recall that "In Anselm's day, at the end of the eleventh century, the life of a stag was worth more than that of a serf, but, although he was sensitive to the needs of 'Christ's poor,' Anselm nowhere adverts to the fact. [....] Bishops and archbishops [Anselm was the Archbishop of Cantebury] could hardly read Scripture except from the position of those who exercise power."

During the Middle Ages it was not unusual for the "Christ of doctrine [to be] far removed from the Galilean preacher, with his teachings about forgiveness, and who mingled with the poor, [as] ideas about the number of fallen angels took the place of concrete attention to the miseries and oppressions of the poor." Satisfaction atonement theory, what is otherwise and perhaps better known on this side of the Atlantic as
"substitution" theory, was both influenced by and influenced penal thinking in Europe: "satisfaction theory emerged, in the eleventh century, at exactly the same time as the criminal law took shape. The two reacted upon each other: theology drew on legal notions and legal discussion, as the history of satisfaction doctrine makes clear, and law turned to theology for metaphysical justification." To make a long story short and vivid, "passion theology" on the order of Mel Gibson's film, The Passion of the Christ (2004), fashioned a "rhetoric of redeeming blood [that] found concrete expression in the London hanged:"

The rites and symbols of Christianity have been the means by which Western culture has sought to master the intractable features of human existence. These intractable features have included, at their centre, wickedness, guilt and punishment. The practical business of punishing offenders 'takes place within a cultural space which is already laden with meanings and which lends itself easily to symbolic use.' Christianity was wheeled in to validate the legal process through the taking of oaths (on a book which absolutely forbids them, as Tolstoy caustically noted), through assize sermons, and through the ministrations of chaplains at the gallows. In the prison Tolstoy describes in Resurrection 'hung the customary appurtenance of all places of barbarity--a large image of Christ, as it were in mockery of his teaching.' The suffering Christ, an icon of the wickedness of judicial punishment, became the focus of its legality, and the the need for the offender to suffer as he did. An image of torture provided the central construal of the cultural space within which punishment took place.

Finally, Christianity has played a role in the recent widespread interest in
restorative theories of justice in both muncipal and international law contexts, much of it inspired by the seminal work of John Braithwaite, commencing with his book, Crime, Shame and Reintegration (1989). The transparent irony here is that this represents an understanding of Christian thought and praxis deeply at odds with the historical narrative sketched above. Lawrence W. Sherman has written a vigorous critique of the Christian ethics that inspires restorative justice theory: "Two Protestant Ethics and the Spirit of Restoration," in Heather Strang and John Braithwaite, eds., Restorative Justice and Civil Society (2001): 35-55. In the global society of states, restorative justice practices and mechanisms take place within broader phenomena that fall under the heading of transitional justice (see also here and here) and include, for example, the resort to "truth commissions" (see also here, here, here, and here) or, more controversially, reliance on systems of "local justice," like the gacaca courts in post-genocide Rwanda. (See too the bibliographies for 'Acknowledgement, Apology and Forgiveness,' 'Reconciliation and Transitional Justice,' 'Restorative Justice' and 'Christian Perspectives on Conflict Transformation, Nonviolence and Reconciliation,' edited by Catherine Morris for Canadian-based Peacemakers Trust. These are part of a larger bibliography on 'Conflict Transformation and Peacebuilding' 'intended as a starting place for...research on conflict resolution, alternative dispute resolution (ADR), peacebuilding or peace studies.')
Addendum: To further fill out our "Christianity and the law" theme, please see this post by Alfred Brophy at The Faculty Lounge discussing a response to Geoffrey Stone's 2008 Melville B. Nimmer Memorial lecture published in the UCLA Law Review: "The World of the Framers: A Christian Nation?" Brophy writes: "Heck, I'm tempted to join the fray with some talk of the nature of beliefs about Christianity in the antebellum era and at the time of the framing of the Confederate Constitution." I think we'll be forgiven if we pray he succumbs to temptation!

The following excerpts from two books by John Cottingham will endeavor to serve as a sensitive and in some respects normative introduction to our
bibliography for Christianity:

In the history of philosophy, the epithet 'spiritual' is most commonly coupled not with the term 'beliefs' but with the term 'exercises.' Perhaps the most famous exemplar is the sixteenth-century Ejercicios espirituales ('Spiritual Exercises,' c. 1522-41) of St. Ignatius Loyola. As its name implies, this is not a doctrinal treatise, nor even a book of sermons, but a structured set of exercises or practices; it is a practical course of activities for the retreatant, to be followed in a prescribed order, carefully divided into days and weeks. [....] In Ignatius...we are dealing with a practical manual--a training manual--and the structured timings, the organized programmes of readings, contemplation, prayer, and reflection, interspersed with the daily rhythms of eating and sleeping, are absolutely central, indeed they are the essence of the thing. Ignatius himself opens the work by making an explicit parallel with physical training programmes: 'just as strolling, walking and running are exercises for the body, so 'spiritual exercises' is the name given to every way of preparing and disposing one's soul to rid itself of disordered attachments.' [....]

What holds good for any plausible account of the tradition of spiritual exercises also holds good more generally for any true understanding of the place of religion in human life: we have to acknowledge what might be called the primacy of praxis, the vital importance that is placed on the individual's embarking on a path of self-transformation, rather than (say) simply engaging in intellectual debate or philosophical analysis. [....] The philosopher Blaise Pascal was a striking advocate of this line of thought. His famous nuit de feu or 'night of fire' on November 23 1654--the intense religious experience that led to a radical change in his life--generated in him what he describes as feelings of 'heartfelt certainty, peace and joy' [cf. the Sanskrit formula, saccidananda in orthodox Indian philosophy and comparable descriptions of the Buddhist's nibbana.] But the God who is the source of these feelings is 'the God of Abraham, Isaac and Jacob,' not the God of 'philosophers and scholars.' Commentators have discussed the exact import of these words, but the general point is clear enough: faith, for Pascal, must arise in the context of a living tradition of practical religious observance, rather than from debate and analysis in the seminar room. This is consistent with Pascal's general philosophical stance on the epistemic status of religious claims, which may be described as proto-Kantian; questions about the nature and existence of God are beyond the reach of discursive reason. 'If there is a God,' says Pascal, 'he is infinitely beyond our comprehension...and hence we are incapable of knowing either what he is or whether he is.' And since reason cannot settle the matter, we have to make a practical choice, a choice on which our ultimate happiness depends. [....]

...[O]n any plausible understanding of the goodness of God, He cannot be supposed to bribe or threaten human beings with happiness or damnation. Standard Christian doctrine makes it clear, instead, that salvation is offered as the 'free gift of God' (in St. Paul's phrase); and that in any case, properly understood, it involves no mere affirmation or placing of a bet [a la Pascal's 'wager'], but a radical moral transformation--or, in the image of St. John's gospel, a new birth. Yet Pascal's position is in fact much more subtle than may at first appear. In the first place, though his wager discussion is often called 'the pragmatic argument,' he is emphatically not offering an argument for the existence of God.... In the second place, and very importantly, he is not offering an argument designed to produce immediate assent or faith in the claims of religion; in this sense, the image of placing a bet, an instantaneous act of putting down the chips, is misleading. Rather, he envisages faith as the destination--one to be reached by a long road of religious praxis; considerations about happiness are simply introduced as a motive for embarking on that journey. And thirdly and finally, the rewards invoked are not simply those of the next world (though that is, of course, how the wager is initially presented), but instead emerge by the end of his discussion as signal benefits related to the present life.
Pascal once famously observed: le coeur a ses raisons que la raison ne connait point--the heart has its reasons, which reason does not know at all. [In her 1988 paper, 'Love's Knowledge,' Martha Nussbaum has suggested] a persuasive variation on this enigmatic theme: there are certain kinds of truth such that to try to grasp them purely intellectually is to avoid them. What I am proposing (and what seems to me to underlie the Pascalian position on faith and praxis) is that religious truth should be seen as falling into just this category. [....]

[N]othing in the idea of the primacy of practice necessarily involves a permanent abandonment of critical rationality. [....]

The "peace envisaged" in Dante's maxim that "in his will is our peace," is not mere tranquillisation or externally engineered submission to a higher power, but is the peace of an autonomous being whose reason has recognised the truth of the ancient religious idea: to serve goodness is the most perfect freedom. [....]

[I]f there is an infinite, self-subsistent being behind the phenomenal world, one might well expect it to be beyond the grasp of our normal literal and scientific language, and thus reasonably suppose that it can be glimpsed, if at all, only via intimations, or symbolic or other figurative modes of discourse. [....]

...Kant famously said that he went 'beyond knowledge in order to make room for faith.' Science, on the Kantian view, is confined to describing the phenomenal world; and what lies beyond the horizon of science cannot therefore be proved--but neither can it be disproved. It follows from this that what is 'impossible,' in the sense of not being a possible object of human knowledge, can nevertheless be a proper object of faith. According to Kant, I cannot prove (or disprove) God; yet because it would be humanly impossible to devote my life to the good if I thought I was striving after 'a conception which at bottom was empty and had no object,' it is appropriate for 'the righteous man to say "I will that there be a God...I firmly abide by this and will not let this faith be taken from me."' [....] Like Descartes and Pascal before him, who thought our human reason could not comprehend infinite being, Kant allowed for a transcedent reality outside the phenomenal world, one that we cannot reach by demonstrative inquiry, but one it makes sense to believe in, and for which (Kant went on to insist) our human existence has a profound need. [....]

God's existence may not be the conclusion of a valid argument, or a plausible empirical hypothesis; affirming a transcendent being is thus in this sense a leap into the unknown--a leap beyond the boundaries of discursive knowledge. But for all that, for the believer it is more than a blind leap, more than a mere act of will, since the belief resonates in a striking way with occasional but powerful intimations, enduring traces that are manifest in the moral and spiritual fabric of our lives. [....]

The Christian understanding of the Incarnation involves "the idea that the 'inaccessible light' of the divinity (1 Timothy 6:16) becomes visible in the person of one human being who is the 'icon of the invisible God' (Colossians 1:15). [....]

The Freudian diagnosis has been highly influential, and can often be seen as informing the idea, voiced by many contemporary atheists, that God is merely a projection formed in response to our human insecurities. But there are at least two problems with this way of dismissing the religious impulse. First, though the abject helplessness of the infant is an apt image of the fragility of the human plight, that fragility, as Freud's own analysis affirms, is clearly not confined to infancy. Our vulnerability, and that of our loved ones, to death, disease and accident is an inescapable part of the human condition; and this being so, to be appropriately aware of it seems precisely what a normal rational human ought to be (even granted that constantly dwelling on it may be a sign of neurosis). In the second place, talk of God as a projection does not in the end advance the debate between theists and atheists very much, since it cannot settle the question of whether the impulse to project our longings outwards to an external source does or does not have an objective counterpart. It is certainly plausible that frail and insecure humans would want to project their need for security onto a protective heavenly Father; but a religious believer can equally maintain that since our true destiny lies in union with our creator, we will naturally feel insecure and restless until we find Him. Indeed, precisely this latter theme turns out to be the refrain of many ancient writers on theistic spirituality: nata est anima ad percipiendum bonum infinitum, quod Deus est; ideo in eo solo debet quiescere et eo frui--'the soul is born to perceive the infinite good that is God, and accordingly it must find its rest and contentment in Him alone.' The result of the debate over projection is thus a stand-off: the fact that humans feel a powerful need for God's loving protection logically says nothing either way about whether that protection is a reality.

...[I]t is logically impossible for a perfect being to create something other than itself that is wholly perfect (for a wholly perfect being would just be identical with God). So if he is to create anything at all, God must necessarily create something less perfect than himself; creation necessarily operates, as a long tradition going back to Augustine has it, by what we may think of as a subtraction or diminution from the perfect divine essence.
---John Cottingham

References and Further Reading:

  • Cottingham, John. On the Meaning of Life. London: Routledge, 2003.
  • Cottingham, John. The Spiritual Dimension: Religion, Philosophy and Human Value. Cambridge, UK: Cambridge University Press, 2005.
  • Haught, John F. Is Nature Enough? Meaning and Truth in the Age of Science. Cambridge, UK: Cambridge University Press, 2006.
  • Kellenberger, James. The Cognitivity of Religion: Three Perspectives. Berkeley, CA: University of California Press, 1985.
  • Smart, J.J.C. and J.J. Haldane. Atheism & Theism. Malden, MA: Blackwell, 2nd ed., 2003.
  • Smart, Ninian (Donald Wiebe, ed.). Concept and Empathy: Essays in the Study of Religion. Washington Square, NY: New York University Press, 1986.
  • van Inwagen, Peter, ed. Christian Faith and the Problem of Evil. Grand Rapids, MI: William B. Eerdmans, 2004.
  • Wierzbicka, Anna. What Did Jesus Mean? New York: Oxford University Press, 2001.







Wednesday, April 22, 2009

Torture: Moral, Legal & Political Dimensions--A Select Bibliography (or requisite reading)

  • Allhoff, Fritz. “A Defense of Torture: Separation of Cases, Moral Methodology, and Ticking Time-Bombs,” International Journal of Applied Philosophy 19, no. 2 (2005): 243-264.
  • Bagaric, Mirko and Julie Clarke. Torture: When the Unthinkable is Morally Permissible. Albany, NY: State University of New York Press, 2007.
  • Bassiouni. M. Cherif. “The Institutionalization of Torture under the Bush Administration,” Case Western Reserve Journal of International Law, Vo. 37, Nos. 2-3 (2006): 389-425.
  • Bennoune, Karima. “Terror/Torture,” Berkeley Journal of International Law, Vol. 26, No. 1 (2008): 1-61. Available: http://ssrn.com/abstract=1148284
  • Brecher, Bob. Torture and the Ticking Bomb. Malden, MA: Blackwell, 2007. [See too C.A.J. Coady’s review for Notre Dame Philosophical Reviews, 2009.02.09. Available: http://ndpr.nd.edu/review.cfm?id=15385]
  • Bruff, Harold H. Bad Advice: Bush's Lawyers in the War on Terror. Lawrence, KS: University Press of Kansas, 2009.
  • B’Tselem (The Israeli Information Center for Human Rights in the Occupied Territories) and HaMoked—Center for the Defence of the Individual, “Absolute Prohibition: The Torture and Ill-Treatment of Palestinian Detainees,” (May 2007). Available: http://www.btselem.org/Download/200705_Utterly_Forbidden_eng.pdf
  • Bufacchi, Vittorio and Jean Maria Arrigo. “Torture, Terrorism and the State: a Refutation of the Ticking-Bomb Argument,” Journal of Applied Philosophy, Vol. 23, No. 3 (2006): 355-373.
  • Cassese, Antonio, ed. The Oxford Companion to International Criminal Justice. New York: Oxford University Press, 2009.
  • Cohn, Marjorie, ed. The United States and Torture: Interrogation, Incarceration, and Abuse. New York: New York University Press, 2011.
  • Cole, David, ed. The Torture Memos: Rationalizing the Unthinkable. New York: The New Press, 2009.
  • Conroy, John. Unspeakable Acts, Ordinary People: The Dynamics of Torture. Berkeley, CA: University of California Press, 2001.
  • Crocker, Thomas P. “Overcoming Necessity: Torture and the State of Constitutional Culture,” SMU Law Review, Vol. 61, No. 2 (2008): 221-279. Available: http://ssrn.com/abstract=1116680
  • Crocker, Thomas P. “Torture, with Apologies,” Texas Law Review, Vol. 86, No. 3 (2008): 569-613. Available: http://ssrn.com/abstract=1102495
  • Cryer, Robert, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst. An Introduction to International Criminal Law and Procedure. Cambridge, UK: Cambridge University Press, 2007.
  • Danner, Mark. Torture and Truth: America, Abu Ghraib, and the War on Terror. New York: New York Review of Books, 2004.
  • Danner, Mark. “U.S. Torture: Voices from the Black Sites,” The New York Review of Books, Vol. LVI, No. 6 (April 9, 2009): 69-77. Available: http://www.nybooks.com/articles/22530
  • Danner, Mark. “The Red Cross Torture Report: What It Means,” The New York Review of Books, Vol. LVI, No. 7 (April 30, 2009): 48-56. Available:
    http://www.nybooks.com/articles/22614
  • Dayan, Colin. The Story of Cruel and Unusual. Cambridge, MA: MIT Press (A Boston Review Book), 2007.
  • Ferzan, Kimberly Kessler. “Torture, Necessity, and the Union of Law & Philosophy,” Rutgers Law Journal, Vol. 36, No. 1, 2004. Available: http://ssrn.com/abstract=1116696
  • Fleck, Dieter, ed. The Handbook of International Humanitarian Law. New York: Oxford University Press, 2nd ed., 2008.
  • Gaeta, Paola. “May Necessity Be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?” Journal of International Criminal Justice, Vol. 2, No. 3 (2004): 785-794.
  • Ginbar, Yuval. Why Not Torture Terrorists? Moral, Practical and Legal Aspects of the ‘Ticking Bomb’ Justification of Torture. New York: Oxford University Press, 2009.
  • Goldsmith, Jack. The Terror Presidency: Law and Judgment Inside the Bush Administration. New York: W.W. Norton, 2007.
  • Greenberg, Karen, ed. The Torture Debate in America. Cambridge, UK: Cambridge University Press, 2006.
  • Greenberg, Karen and Joshua L. Dratel, eds. The Torture Papers: The Road to Abu Ghraib. Cambridge, UK: Cambridge University Press, 2005.
  • Guiora, Amos N. and Erin M. Page. “The Unholy Trinity: Intelligence, Interrogation and Torture,” Case Western Reserve Journal of International Law, Vol. 37, Nos. 2-3 (2006): 427-447.
  • Hajjar, Lisa. Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. Berkeley, CA: University of California Press, 2005: 49-75 and 185-207.
  • Haque, Adil Ahmad. “Torture, Terror, and the Inversion of Moral Principle,” New Criminal Law Review, Vol. 10, No. 4 (2007): 613-657.
  • Harbury, Jennifer K. Truth, Torture, and the American Way: The History and Consequences of U.S. Involvement in Torture. Boston, MA: Beacon Press, 2005.
  • Hilde, Thomas C., ed. On Torture. Baltimore, MD: Johns Hopkins University Press, 2008.
  • Horton, Scott. “Justice after Bush: Prosecuting an Outlaw Administration,” Harper’s Magazine, December 2008. Available: http://www.harpers.org/archive/2008/12/0082303
  • Hunsinger, George, ed. Torture is a Moral Issue: Christians, Jews, Muslims and People of Conscience Speak Out. Grand Rapids, MI: Wm. B. Eerdmans Publ., 2008.
  • Ip, John. “Two Narratives of Torture” (April 10, 2009) Northwestern University Journal of International Human Rights, Vol. 7, No. 1, p. 35, 2009. Available at SSRN: http://ssrn.com/abstract=1292585
  • Kerrigan, Michael. The Instruments of Torture. Guilford, CT: The Lyons Press, revised ed., 2007
  • Lazreg, Marnia. Torture and the Twilight of Empire: From Algiers to Baghdad. Princeton, NJ: Princeton University Press, 2008.
  • Lee, Patrick. “Interrogational Torture,” American Journal of Jurisprudence, Vol. 51 (2006): 131-147.
  • Levi, William Ranney. “Interrogation's Law” Yale Law Journal (April 17, 2009), Forthcoming. Available: http://ssrn.com/abstract=1389511
  • Levinson, Sanford, ed. Torture: a Collection. New York: Oxford University Press, 2004.
  • Linnartz, Isaac A. “The Siren Song of Interrogational Torture: Evaluating the U.S. Implementation of the U.N. Convention against Torture,” Duke Law Journal, Vol. 57, 5 (2008): 1465-1516.
  • Luban, David. “Liberalism, Torture and the Ticking Time Bomb,” 91 Virginia Law Review (2005): 1425-1461. Available: http://www.virginialawreview.org/content/pdfs/91/1425.pdf
  • Luban, David. “The torture lawyers of Washington,” in Legal Ethics and Human Dignity. Cambridge, UK: Cambridge University Press, 2007: 162-225.
  • Luban, David. “Unthinking the Ticking Bomb,” Georgetown Public Law Research Paper, No. 1154202. Available: http://ssrn.com/abstract=1154202
  • Mannix, Daniel P. The History of Torture. Gloucestershire, England: The History Press, 2003.
  • Marks, Jonathan H. “Doctors as Pawns? Law and Medical Ethics at Guantánamo Bay,” Seton Hall Law Review, Vol. 37 (2007): 711-731. Available: http://ssrn.com/abstract-983815
  • May, Larry. Crimes Against Humanity: A Normative Account. Cambridge, UK: Cambridge University Press, 2005.
  • May, Larry. War Crimes and Just War. Cambridge, UK: Cambridge University Press, 2007.
  • Mayer, Jane. The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals. New York: Doubleday, 2008.
  • Mayerfield, Jamie. “Playing by Our Own Rules: How U.S. Marginalization of Human Rights Law Led to Torture,” Harvard Human Rights Journal, Vol. 20 (2007): 89-140.
  • Mayerfield, Jamie. “In Defense of the Absolute Prohibition of Torture,” Public Affairs Quarterly, Vol. 22, No. 2 (April 2008): 109-128.
  • McCoy, Alfred W. A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror. New York: Owl Books/Henry Holt, 2006.
  • McMahan, Jeff. “Torture, Morality, and Law,” Case Western Reserve Journal of International Law, Vol. 37, Nos. 2 and 3 (2006): 241-248. Available: http://philosophy.rutgers.edu/FACSTAFF/BIOS/mcmahan.html
  • Meisels, Tamar. “Torture and the Problem of Dirty Hands,” The Canadian Journal of Law and Jurisprudence, Vol. 21, 1 (2008): 149-173.
  • Miles, Steven H. Oath Betrayed: Torture, Medical Complicity and the War on Terror. New York: Random House, 2006.
  • Miller, Seumas. “Is Torture Ever Morally Justified?” International Journal of Applied Philosophy, Vol. 19, No. 2 (2005): 179-192.
  • Miller, Seumas, “Torture,” The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2008/entries/torture/.
  • Nowak, Manfred and Elizabeth McArthur. The United Nations Convention Against Torture. New York: Oxford University Press, 2008.
  • Ohlin, Jens David. “The Torture Lawyers” (September 10, 2009). Harvard International Law Journal, Forthcoming. Available: http://ssrn.com/abstract=1471398
  • Osiel, Mark. The End of Reciprocity: Terror, Torture, and the Law of War. Cambridge, UK: Cambridge University Press, 2009.
  • Otterman, Michael. American Torture: From the Cold War to Abu Ghraib and Beyond. Carlton, Victoria: Melbourne University Press, 2007.
  • Paglen, Trevor and A.C. Thompson. Torture Taxi: On the Trail of the CIA’s Rendition Flights. Brooklyn, NY: Melville House, 2006.
  • Parry, John T. “The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees,” Melbourne Journal of International Law, Vol. 6, 2 (2005): 516-533.
  • Parry, John T. “Torture Nation, Torture Law,” The Georgetown Law Journal, Vol. 97, 4 (April 2009): 1001-1056. Available: http://www.georgetownlawjournal.org/issues/pdf/97-4/Parry.PDF
  • Parry, John T. Understanding Torture: Law, Violence, and Political Identity. Ann Arbor, MI: University of Michigan Press, 2010.
  • Paust, Jordan J. “The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions,” Valparaiso University Law Review, Vol. 43 (2009). University of Houston Law Center, No. 2009-A-7. Available: http://ssrn.com/abstract=133159
  • Peirce, Gareth. Dispatches from the Dark Side: On Torture and the Death of Justice. London: Verso, 2011.
  • Perry John. Torture: Religious Ethics and National Security. Maryknoll, NY: Orbis Books, 2005.
  • Public Committee Against Torture in Israel. “‘Ticking Bombs:’ Testimonies of Torture Victims in Israel,” May 2007: http://www.stoptorture.org.il/files/140[1].pdf
  • Public Committee Against Torture in Israel. “No Defense: Soldier Violence Against Palestinian Detainees,” Periodic Report: June 2008: http://www.stoptorture.org.il/files/No_Defense_Eng.pdf
  • Public Committee Against Torture in Israel. “‘Family Matters:’ Using Family Members to Pressure Detainees Under GSS Interrogation," April 2008: http://www.stoptorture.org.il/files/Fmily%20Matters%20full%20report%20eng.pdf
  • Public Committee Against Torture in Israel v. State of Israel and Others (HC 5100/94...) Supreme Court of Israel, 7 BHRC 31, 6 September 1999.
  • Rejali, Darius. Torture and Democracy. Princeton, NJ: Princeton University Press, 2007.
  • Rhodes, Lorna. Total Confinement: Madness and Reason in the Maximum Security Prison. Berkeley, CA: University of California Press, 2004.
  • Riggs, Kate and Richard Blakeley. “Prolonged Mental Harm: The Tortuous Reasoning Behind a New Standard for Psychological Abuse,” Harvard Human Rights Journal, Vol. 20 (2007): 263-292.
  • Roth, Kenneth and Minky Worden, eds. Torture: A Human Rights Perspective. New York: The New Press, 2005.
  • Ruthven, Malise. Torture: The Grand Conspiracy. London: Weidenfeld and Nicolson, 1978.
  • Sadat, Leila Nadya. “Extraordinary Rendition, Torture and Other Nightmares from the War on Terror.” The George Washington Law Review, Vol. 75 (2007): 101-149. Available: http://ssrn.com/abstract=1008568
  • Sands, Philippe. Torture Team: Rumsfeld’s Memo and the Betrayal of American Values. New York: Palgrave Macmillan, 2008.
  • Sarrat, Austin and Nasser Hussain, eds. When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration. New York: New York University Press, 2010.
  • Schulz, William F., ed. The Phenomenon of Torture: Readings and Commentary. Philadelphia, PA: University of Pennsylvania Press, 2007.
  • Scott, Craig. Ed. Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation. Oxford, UK: Hart Publishing, 2001.
  • Sharrock, Justine. Tortured…. Hoboken, NJ: John Wiley & Sons, 2010.
  • Shue, Henry. “Torture,” Philosophy and Public Affairs, Vol. 7, No. 2 (1978): 124-143.
  • Shue, Henry. “Torture in Dreamland: Disposing of the Ticking Bomb,” Case Western Journal of International Law, Vol. 37 (2006): 231-239.
  • Strauss, Marcy. “Torture,” New York Law School Law Review, Vol. 48, Nos. 1-2 (2004): 201-274.
  • Sussman, David. “What’s Wrong with Torture?” Philosophy and Public Affairs, Vol. 33 (2005): 1-35.
  • Vischer, Robert K., “Tortured Ethics: Abu Ghraib and the Moral Lawyer” (October 5, 2004). St. John's Legal Studies Research Paper. Available: http://ssrn.com/abstract=601203
  • Waldron, Jeremy. “Cruel, Inhuman, and Degrading Treatment: The Words Themselves,” New York University School of Law, Public Law Research Paper No. 08-36 (November 2008): 1-47. Available: http://ssrn.com/abstract=1278604
  • Waldron, Jeremy. “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review, Vol. 105, No. 6 (2005): 1681-1750.
  • Wendel, W. Bradley. “Executive Branch Lawyers in a Time of Terror,” 2008 F.W. Wickwire Memorial Lecture. Available: http://ssrn.com/abstract=1372744
  • Wendel, W. Bradley. "The Torture Memos and the Demands of Legality" (June 19, 2009). Cornell Legal Studies Research Paper No. 09-019. Available: http://ssrn.com/abstract=1422603
  • Werle, Gerhard. Principles of International Criminal Law. The Hague: T.M.C. Asser Press, 2005.
  • Wisnewski, J. Jeremy. Understanding Torture. Edinburgh: Edinburgh University Press, 2010.
  • Wisnewski, J. Jeremy and R.D. Emerick. The Ethics of Torture. New York: Continuum, 2009.
  • Wolfendale, Jessica. Torture and the Military Profession. New York: Palgrave Macmillan, 2007.
  • Yoo, John. War by Other Means: An Insider's Account of the War on Terror. New York: Atlantic Monthly Press, 2006.

Please Note: I've added a fair number of items since this was first posted (last update: December 6, 2010).


Sunday, April 12, 2009

Sunstein on the Federalist Papers

Check out Cass Sunstein's essay on federalism and republicanism in the March 26th issue of the New York Review of Books. Here's a sample.

To many modern readers, the Federalist Papers seem formal, musty, old, and a bit tired—a little like a national holiday that celebrates events long past but lacks any sense of struggle and excitement, or even a clear message. But under stringent time pressure, starting in October 1787, Alexander Hamilton, James Madison, and John Jay, writing under the name of "Publius," produced the best historical record, by far, of the uniquely American contribution to political thought and practice.

It is important to see that their arguments were a product of a concrete historical drama, involving the fate of an emerging nation that was having an exceedingly difficult time governing itself. But Publius's claims bear not only on American debates of the eighteenth century, but also on those of the nineteenth, twentieth, and twenty-first. They offer lessons for making war and making peace, and for domestic crises of many different kinds. Indeed, they provide guidance for constitutional democracies elsewhere, not least when peace and prosperity are endangered.

Publius's project was to reconceive republicanism—a body of thought with ancient origins in Aristotle and Cicero whose modern forms had been elaborated in different ways by Machiavelli, Rousseau, and Montesquieu. Emphasizing self-rule by the people, republicans insisted on the importance of civic virtue and generally believed that self-government works best in small, homogeneous republics. According to the argument of the Federalist Papers, however, such small republics tend to destroy themselves. The reason lay in the power of factions—well-organized private groups with passions or interests inconsistent with the good of the public as a whole. Publius believed that in a large republic, a heterogeneous public could counteract factional power and serve as a creative force, promoting circumspection and introducing safeguards against bias, error, confusion, and even oppression. (Footnotes omitted)

The entire essay can be found here.

I have my doubts that Sunstein's succeeds in establishing the compatibility, let alone the synthesis, of federalism and republicanism. Federalists were suspicious of the people. John Adams feared elections and Fisher Ames believed that "a republic which differs more widely from a democracy than a democracy from a despotism. The rigours of a despotism often oppress only a few, but it is the very essence and nature of a democracy, for a faction claiming to oppress a minority, and that minority the chief owners of the property and truest lovers of their country." This doesn't lend itself to interpetation as federalism embracing deliberative democracy. By contast Republicans feared government. The reconciliation between these two paradigms or attitudes has never been achieved. Moveover, contrary to Sunstein's claim that deliberative demotmpphpislr9j1.gifcracy preserves accountability, it's not clear that he takes accountability seriously at all. According to Sunstein, the federalist system of checks and balances is designed to promote the republican value of deliberative democracy. In such a system, judicial review is designed to ensure that We the People would remain superior to [their] rules." But this raises a problem endemic to all judicial constitutionalists. Both empirically and conceptually, the claim that the Court protects the people is dubious. In short, who protects We the People, their rulers, and the Constitution from incursions of ultra vires judicial decisions? Judicial constitutionalists rarely, if ever, provide plausible reasons in support of the Court's lack of accountability. Oh yes, judicial constitutionalists recite a litany of implausible reasons, such as, the Court's impartiality, its vital role in protection individual rights, and so forth. But none of these reasons succeed in explaining how the Court can work its will and at the same time be constrained by and accountable to the will of We the People. The design and application of American constitutionalism has created what is usefully called a "dead-end republicanism," a polity where public rhetoric valorizes self-rule, but whose reality creates various structures such as judicial supremacy, where self-rule is checked by an unchecked branch of government. No self-respecting republicanism can tolerate such a government so removed from self-rule