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Inhuman and Degrading Treatment - A Non-Realist View by Jeremy Waldron

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									NYU Public Law Colloquium, April 23

Second draft

Note to Colloquium participants: This may be a longer paper than you expect. Different readers, however, will want to focus on different parts. Some will not be interested in the brief survey of US and ECtHR doctrine on pp. 5-10. The parts of the paper on which I would particularly welcome discussion are (i) the detailed discussion of the meanings of the terms “inhuman” and “degrading” on pp. 14-24, and (ii) the jurisprudential discussion of interpretation—realist (pp. 5 & 8), plain meaning (pp. 10-13), originalist vs. various forms of Dworkinian moral reading (pp. 24-9)

Inhuman and Degrading Treatment: A Non-Realist View Jeremy Waldron1 1. Introduction Some of you will know that a year or two ago I worked for a while on the issue of torture.2 I did not say very much at that time about a set of accompanying prohibitions that we find in the same human rights conventions that outlaw torture: I mean the prohibitions on cruel, inhuman and degrading treatment and punishment. That is what I would like to talk about today. The Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights (ICCPR) both provide that “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”3 A great many national and regional Bills and Charters of Rights provide for something similar, including the European Convention on Human Rights (ECHR),4 the South African Constitution,5


University Professor, NYU Law School. I am grateful to Annmarie Zell for her assistance with sources. An early version of this paper was presented as the Annual Law and Philosophy Lecture at Columbia Law School in March 2008; thanks to Jose Alvarez, Richard Briffault, Sarah Cleveland, Michael Dorf, Suzanne Goldberg, Jeff Gordon, Kent Greenawalt, Carol Sanger, and Kendall Thomas for their comments

See Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUMBIA L. REV. 1681 (2005), 1681-1750. http://www.columbialawreview.org/pdf/Waldron-Web.pdf . Also Jeremy Waldron, What Can Christian Teaching Add to the Debate about Torture? 63 THEOLOGY TODAY 330 (2006).
3 4


UDHR, Art. 5; ICCPR, Art. 7

ECHR, Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” South African Constitution, Art 12 (1) Everyone has the right to freedom and security of the person, which includes the right … not to be tortured in any way; and not to be treated or punished in a cruel, inhuman or degrading way.


and (I hasten to add) the New Zealand Bill of Rights Act.6 (The Canadian Charter uses the older language of “cruel and unusual” treatment or punishment, used also by the US Bill of Rights and most US State Constitutions including New York,7 and taken word-for-word from the English Bill of Rights of 1689.)8 The UN Convention against Torture (UN CAT) has a similar provision.9 10 And so does Common Article 3 of the Geneva Conventions,11 and actually this is of great importance for American law, for reasons I’ll explain in a moment. What do these clauses mean? For many people the most important thing about them is that they define a layer of treatment below the level of torture that counts as ill-treatment and is still frowned upon by the international community.12 They define a penumbra of prohibition surrounding the core prohibition on torture or (to vary the metaphor) a grey area just below the threshold of torture (wherever that is set) which operates to prevent us from pushing the edge of the torture. But knowing that cruel, inhuman and degrading treatment reaches down below the threshold of torture doesn’t tell us very much about how these standards work, or about

New Zealand Bill of Rights Act 1990, section 9: “Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.” Constitution of the State of New York, Art. 1, sect. 5. Canadian Charter, Art 12; US Constitution, Eighth Amendment; English Bill of Rights, December 16, 1689: “[T]he … lords spiritual and temporal, and commons ... do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare … 10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.” UNCAT, Art. 16 (1): “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined…, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

7 8


The Rome Statute of the International Criminal Court makes provision in similar terms; it treats “torture” as a crime against humanity (Article 7 (i) (f)) and also “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” (Article 7 (i) (k)); it also prohibits as war crimes “[t]orture or inhuman treatment,” (Art. 8 2 (a) (ii)) and “outrages upon personal dignity, in particular humiliating and degrading treatment” (Art. 8 2 b xxi) Geneva Conventions, Common Article III: “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely…. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; … (c) outrages upon personal dignity, in particular, humiliating and degrading treatment….” As former OLC official John Yoo wrote at the beginning of what has become notorious as the Bybee memo: “[C]ertain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within [the] proscription against torture.” Bybee memorandum, p. 1.
12 11



the extent of their reach. And it may be inappropriate to define the principles prohibiting inhuman and degrading treatment purely in terms of the function they serve, in building a fence around the torture prohibition. They are distinct standards and presumably have functions of their own to fulfill. It is often said that these standards are unclear. They use highly charged value-terms—terms that the authors of one treatise say, “tend to be over-used in ordinary speech.”13 And many officials (including the President of the United States) 14 have professed themselves bewildered by the vagueness of the language of “inhuman and degrading treatment” 15 and (in the Geneva Conventions) “outrages upon personal dignity.” 16 I understand that it was concerns about the vagueness of this language that led the United States to enter a serious reservation at the time of our ratification of the ICCPR and the UNCAT treaties. We said this: [T]he United States considers itself bound … only insofar as the term “cruel, inhuman or degrading treatment or punishment” means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.17

D.J. HARRIS, M. O’BOYLE, C. WARBRICK, LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 88 (1995): “The terms ‘inhuman’ and ‘degrading’ … have no clear legal meaning and tend to be over-used in ordinary speech.” President Bush said in 2006: “It's very vague. What does that mean, ‘outrages upon human dignity’? That's a statement that is wide open to interpretation. … the standards are so vague that our professionals won't be able to carry forward the program, because they don't want to be tried as war criminals. … These are decent, honorable citizens who are on the front line of protecting the American people, and they expect our government to give them clarity about what is right and what is wrong in the law.” Press Conference of the President, September 15, 2006: http://www.whitehouse.gov/news/releases/2006/09/20060915-2.html
15 16 14


See also http://www.fas.org/irp/news/2006/09/dni091306.pdf

Occasionally such professions of bewilderment elicit a skeptical response. The White House Press Corps has been known to make fun of Tony Snow’s protestations about vagueness. See e.g. White House Press briefing (September 14, 2006): MR. SNOW: Some of the language in … Common Article III .. is vague. In the case of Common Article III, of course, you have had some of -- the "prohibitions against cruel, inhumane or degrading treatment or punishment" -- that's important to figure out what that means. As you know, in -- Q: It's vague to you? MR. SNOW: Yes, it is. Q: [You m]ean, cruel, inhuman, degrading? MR. SNOW: Yes, because you have to specify exactly what you mean. Q: Keep smiling. (Laughter.) MR. SNOW: Please permit me to continue. And readers will remember the healthy and robust derision on Capitol Hill that was directed at AttorneyGeneral nominee Mukasey’s claim that he didn’t know whether waterboarding was torture.



Now we have to be careful how we understand this. Former AttorneyGeneral Alberto Gonzalez told the Senate in his confirmation hearings in 2005 that the effect of these reservations was to incorporate American geographic limitations on the application of constitutional rights into our obligations under the treaty.18 Aliens "interrogated by the U.S. outside the United States enjoy no substantive rights under the Fifth, Eighth and 14th Amendment," he said. And he concluded that there is therefore “no legal prohibition applying to us under the 'Convention Against Torture' on cruel, inhuman or degrading treatment with respect to aliens overseas."19 In my opinion this is a mistake. On its terms, the reservation is only about definitions, not jurisdiction. And I doubt very much whether a jurisdictional or geographic reservation would be valid.20 I said it was especially significant that something like the language of cruel, inhuman and degrading treatment—the wording is slightly different— is used in Common Article 3 of the Geneva Conventions. This is because our ratification of those Conventions was not accompanied by any reservation like the one I have just mentioned. So when the Supreme Court established in Hamdan21 that Common Article 3 applies to our treatment of alien detainees at Guantanamo Bay, it made the task of parsing and elaborating the language of inhuman and degrading treatment (and “outrages upon personal dignity”) quite urgent.22
This account of Gonzalez’s testimony is adapted from Craig Forcese, A New Geography of Abuse, 94 BERK. J. INT’L L. 908, 908-9 (200_). Ibid., 909, citing Confirmation Hearing on the Nomination of Alberto R. Gonzales To Be Attorney General of the United States: Hearings Before the S. Judiciary Comm., 109th Cong. 121 (2005). For a similar view Andrew McCarthy, The International-Law Trap: What Europe thinks is “cruel, inhuman, and degrading” doesn’t govern us. NATIONAL REVIEW, December 12, 2005: “For it is well established that the Constitution of the United States does not apply outside U.S. territory. The Constitution's Bill of Rights protections are unavailing for aliens who are outside our geographic jurisdiction.” http://www.nationalreview.com/script/printpage.p?ref=/mccarthy/mccarthy200512120837.asp Some countries denounced our reservation even as it stood. For example, Sweden said of the US position, “A reservation by which a State modifies or excludes the application of the most fundamental provisions of the Covenant, or limits its responsibilities under that treaty by invoking general principles of national law, may cast doubts upon the commitment of the reserving State to the object and purpose of the Covenant.” That is arguable, I guess. But the reservation certainly would have been invalid had it amounted to a determination not to apply the relevant provision at all in our dealings with aliens overseas. This is a human rights treaty and you cannot ratify a human rights treaty while at the same time excluding a class of humans altogether from its application so far as actions by agents of our government are concerned. Forcese, op. cit., makes a more elaborate argument, but I think he comes up with the same conclusion.
21 22 20 19 18

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

It was in response to this difficulty that the Detainee Treatment Act of 2005 (part of the Department of Defense Appropriations Act of 2006 (Title X, H.R. 2863)) sought to supplant the Geneva protections with a version of cruel, inhuman and degrading treatment that was explicitly equated by statute with the language


2. The legal realist approach I said in the title of this essay that the approach I shall take will be a nonrealist approach. What do I mean by that? It is a reference to legal realism, rather than moral or philosophical realism (or for that matter, political realism). Legal realists do not believe that the precise vocabulary of a legal enactment offers much in the way of guidance or prediction as to how the courts will interpret it. The text of an enactment or a treaty is not law, they will say; at best it is a source of law. We are better off, accoridng to the realists, looking at what the courts have done with a provision, than trying to parse it out ourselves on a purely textualist basis. After all, what our clients most want to know is how the courts will respond to what they do, not what the dictionary definition of some provision is. So, if we were to take a realist approach, what would we look at? (a) US Case Law There actually is some interesting US case law dealing with the difficulty of defining “cruel, inhuman, and degrading treatment.” It arises mostly under the Alien Tort Claims Statute (ATCS).23 Some of the ATCS jurisprudence is skeptical, dismissing claims on the ground that “[p]laintiffs' submissions fail to establish that there is anything even remotely approaching universal consensus as to what constitutes ‘cruel, inhuman or degrading treatment.’”24 In other more recent cases, however, federal judges
used in our reservations to the other conventions. (Whether that will be acceptable (a) to our courts and (b) to the international authorities, remains to be seen.) § 1003 (a) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. 1003 (d) In this section, the term `cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.
23 24

Though see also Knight v. Florida 528 U.S. 990 (Mem.) U.S.,1999: cert. denied, dissent by Breyer J.

Forti v. Suarez-Mason 672 F.Supp. 1531 N.D.Cal. (1987). Reinforced in Forti II—i.e., Forti v. SuarezMason 694 F.Supp. 707 N.D.Cal., (1988): “To be actionable under the Alien Tort Statute the proposed tort must be characterized by universal consensus in the international community … Plaintiffs' submissions fail to establish that there is anything even remotely approaching universal consensus as to what constitutes ‘cruel, inhuman or degrading treatment.’ In particular, the judge mentioned the cultural relativity of the humiliation involved in “degrading treatment.” He said: “[C]onduct … which is … grossly humiliating in one cultural context is of no moment in another. An international tort which appears and disappears as one travels around the world is clearly lacking in that level of common understanding necessary to create universal consensus.” The scope for such skepticism has been reinforced since 2004 by the requirement that any new claim for a violation of an individual's human rights under the ATS must “rest on a norm of


have shown themselves willing to work with these standards even if they do remain ragged around the edges.25 In 2002 Judge Victor Marrero in the Southern District of New York made the point that in an area of law “where uncertainty persists by dearth of precedent, declining to render decision that otherwise may help clarify or enlarge international practice … creates a selffulfilling prophecy and retards the growth of customary international law.”26 (b) ECtHR case law The best developed body of case law on inhuman and degrading treatment is from the European Court of Human Rights (ECtHR) administering Article 3 of the ECHR: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”27 The ECtHR has established a set of precedents and benchmarks28 on various issues, and on the circumstances in which detention might count as inhuman and degrading. Here is one preliminary point that is worth remembering. For United States, the issue of inhuman and degrading treatment comes up mainly in relation to the treatment of detainees in something like a war situation (the war of terror); but much ECtHR jurisprudence concerns regular law enforcement. Article 3 of the European Convention has been used a lot to try and correct and moderate law enforcement brutality in Turkey, Eastern Europe, and the former Soviet Union.29 In any case, it is a good and usable jurisprudence. Maybe there are one or two cases where we would feel the Europeans have been overinternational character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigm” of the law of nations. Alvarez-Machain v Sosa, 542 U.S. 725.

A district court judge in Massachusetts has said that “[i]t is not necessary that every aspect of … ‘cruel, inhuman or degrading treatment’ be fully defined and universally agreed upon before a given action meriting the label is clearly proscribed under international law, any more than it is necessary to define all acts that may constitute “torture” … in order to recognize certain conduct as actionable misconduct under that rubric.” Xuncax v. Gramajo, 886 F.Supp. 162, 186 (D. Mass. 1995) Another observed in 2004 that “the fact that there [is] doubt at the margins—a fact that inheres in any definition—does not negate the essence and application of that definition in clear cases.” Doe v. Qi, 349 F.Supp.2d 1258 (N.D.Cal.2004). Tachiona v. Mugabe 234 F.Supp.2d 401 S.D.N.Y.,2002. at 437. [There has been some interesting interaction with our case law. They used our work in Rochin; we use their work in Xuncax v. Gramajo, 886 F.Supp. 162, 186 (D. Mass. 1995) e.g. in refusing to recognize constructive expulsion from Guatemala as inhuman and degrading treatment.] !text? For the idea of “benchmarks” here, see Rudolf Schmuck, The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (CPT)—Fundamentals, Structure, Objectives, Potentialities, Limits, 1 JIJIS 69 2002 at p. 79.

26 27


[Though there is a war on terror dimension in Turkey and Chechnya and, in the past, in the United Kingdom as well.] !text?



fastidious. The Reagan administration’s concern about this language is said to have arisen out of its knowledge of a European case in which prison authorities’ failure to recognize a sex change was determined to be inhuman and degrading treatment.30 There was also a claim that subjecting a child to trial by jury would be inhuman.31 And in one claim—not accepted by the Court—the complaint was that flight paths into Heathrow Airport imposed inhuman treatment on those who had to live under them.32 Mostly the ECtHR has held firm to its principle that Article 3 should not be cheapened by overuse. It has refused to apply it to a woman’s distress at the prospect of repatriation, to shackling or solitary confinement as such,33 to force-feeding to avoid death by hunger strike,34 and most notably to the death penalty per se (though aspects of its administration in US are regarded as inhuman and degrading—the “death row phenomenon).35 However, for all the sophistication of these benchmarks and principles, there is one thing one misses in the ECtHR case law and in the text-books that summarize it. No one spends much time reflecting on the meaning of the predicates that are supposed to operate here—I mean the words “inhuman” and “degrading”—and explaining how exactly the Court is guided by these words in generating its benchmarks. The Court simply announces its finding that certain practices are inhuman or degrading while others are not. As far as I can see, that amounts—at best—to definition by ostension: this is inhuman; that is degrading.36 The findings of one case are then cited in every case thereafter, and then they are all simply listed in the

Bybee memo p. 17: citing X v. Fed. Rep. Germany (1977) (cite?). Some have worried that it would forbid even standard US police interrogation techniques. (James Ho memo – check this.) There was also a case in which shaving a prisoner’s head in retaliation for comments he had written about his warders was held to be degrading treatment. Yankov v. Bulgaria (2005) 40 E.H.R.R. 36 ECHR. Also: repeated strip-searching as a humiliation device. Lorsi v Netherlands 2003 38 EHRR and Van der Ven 38 EHRR 2004 46.
31 32 33

SC v UK (2005) 40 EHRR 10. Hatton v UK 2003 37 EHRR 28.

Iorgov v. Bulgaria (2005) 40 E.H.R.R. 7 ECHR §83 The Court notes that the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. Nevmerzhitsky v. Ukraine (2006) 43 E.H.R.R. 32 ECHR §94 “a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Court has not said that death penalty is inhuman and degrading: see Öcalan v. Turkey (2005) 41 E.H.R.R. 45 ECHR (Grand Chamber) 163. But see Soering for the “death row phenomenon.” Compare the “I know it when I see it” methodology of Justice Potter Stewart, “defining” hard core pornography in Jacobellis v Ohio 378 U.S. 184 (1964),
36 35 34


treatises, whose chapters consist of nothing but a succession of such citations, footnoted sentences, with precious little in the way of analysis.37 That’s what I mean by legal realism—a lack of interest in the words of the enactment and a focus instead on just listing the practices to which the words have been applied. Nothing, it seems, is to be learned from staring at or thinking about the terminology of Article 3. It is not of course skepticism about word meaning as such. It can’t afford to be. The Court and the treatise writers assume that when we have a precedent—for example, a precedent that says physical mistreatment is inhuman if it is “premeditated, applied for hours at a stretch and cause[s] actual bodily injury”—it assumes that we understand those words well enough to apply that formula to other cases. The ECtHR judges and treatise writers are not nominalists, unlike (say) an extreme early twentieth-century American legal realist such as Jerome Frank.38 Nevertheless the sense they convey is that words do not begin to control cases until we move away from value-terms like “inhuman” and “degrading” to more descriptive words and phrases like “premeditated,” “hours at a stretch,” and “physical injury.” And that’s the responsibility of the courts. 3. The quantitative distinction To the extent that there is any specific reflection on the terminology of Article 3 of the ECHR, it is mostly in terms of a rather simple quantitative paradigm—a distinction of levels marked by different degrees of intensity of suffering.39 The prevailing view is that there is a hierarchical progression between these three separate categories of ill-treatment—degrading, inhuman, and torture—and that the thresholds between them are based on the severity of suffering.40 So we begin with a minimum: ill-treatment has to attain a minimum level of severity in order to fall within Article 3. At the other end of the spectrum we have torture, and inhuman treatment in between. As The ECtHR famously said in the 1970s in Ireland v. United Kingdom, “[I]t appears . . . that it was the intention that the Convention, with its distinction
37 38 39

See e.g. HARRIS et al.., LAW OF THE EUROPEAN CONVENTION, op. cit.; get other cites. JEROME FRANK, LAW AND THE MODERN MIND, pincite for Frank’s nominalism.

Bernhard Schlink, The Problem with “Torture Lite __ CARDOZO L. REV. 86 (2007): “Whatever the wording, the distinction between torture and cruel, inhuman and degrading treatment is one of intensity.”




between ‘torture’ and ‘inhuman or degrading treatment,’ should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.”41 Torture is seen as an aggravated form of inhuman treatment.42 What about degrading treatment? I have seen a suggestion in some of the ECHR literature that degrading is supposed to mark a lower level of maltreatment below what we would categorize as inhuman treatment.43 It seems odd to me, since plainly there is a difference of qualitative meaning not just of quantitative suffering between treatment that is inhuman and treatment that is degrading. But that has not stopped the ECHR jurisprudence from pursuing a quantitative distinction between the two. The image is of a linear progression, or perhaps concentric circles: torture is inhuman and degrading; 44 inhuman treatment is also degrading; and then degrading treatment is treatment just above the minimum required to trigger an Article 3 violation. Of course a realist would note that any differentiation here is only moral and political; torture and inhuman treatment and degrading treatment are all subject to the same absolute non-derogable prohibition in the ECHR (as also in the ICCPR). The fact that there is a verbal distinction does not mark an effective normative distinction so far as the strength and immovability of these prohibitions are concerned.45 In my early thinking about torture, I sometimes had the impression— fostered by the concentric circles image—that the prohibition on inhuman and degrading treatment was intended to operate as a sort of “fence around the wall” to keep interrogators and security forces well away from the threshold of torture, to prevent them pushing up against the edge of that envelope, so to speak. That may be true.46 But there is already a sufficient
41 42 43 44

Ireland v. United Kingdom, ECHR, judgment of 18 January 1978, Series A no. 25 (1978). Cite for this formulation. Cite?

But consider the observation of William Twining, Torture and Philosophy, 52 PROC. ARIST. SOC. (SUPP.) 143 (1978): “[T]he European Commission has suggested that torture in Article 3 is an aggravated form of inhuman or degrading treatment. If this is correct, it might be argued that torture is analytically superfluous in Article 3—because all cases of torture will be caught by the absolute prohibition on inhuman or degrading treatment. Why then include the term?” See Waldron, Torture and Positive Law, op. cit., 1706. It is worth noting, however, that some scholars have suggested that the lesser intensity of CID should change that: “policy considerations might support the proposition that the absolute bar against torture should not necessarily carry over to less severe forms of cruel, inhuman, or degrading punishment and treatment prohibited by international law.” Yuval Shany, The Prohibition against Torture and Cruel, Inhuman, and Degrading Treatment and Punishment: Can the Absolute be Relativized under Existing International Law? 56 CATH. UNIV. L. REV. 837 (2007).
46 45

Cf. the discussion above on pp. 2-3.


chilling function performed by the relative imprecision of the world “torture,” and that makes the addition of accompanying standards redundant in this regard.47 It seems better to think of them as doing work of their own, rather than just reinforcing and protecting the norm against torture. Early on in the ECHR jurisprudence an attempt was made at more qualitative distinctions. It was said, for example, that the distinction between torture and inhuman treatment was the specifically purposive element in torture.48 Special stigma would be explained on that account Maybe it is thought that the special stigma has to do with the special instrumentalization of the person in torture cases, even when the level of suffering inflicted is the same. But that is no longer emphasized. There are still some scholars who are unhappy with the purely quantitative distinction,49 but few have explored the other options in any detail except to insist on purposiveness as a non-quantitative distinguishing feature of torture. 4. A non-realist approach I want to take a qualitative, textualist approach.50 I am not particularly concerned in this paper with the bottom line. Though bottom-line questions are very important, it is not my intention to argue for the application or nonapplication of these standards to the many appalling practices officially recorded as having taken place at Guantanamo Bay, for example: waterboarding, sleep deprivation, temperature extremes, religious abuse, and sexual misconduct.51 Instead, I want to focus on the terminology. I am well aware that words do many things in law besides conveying their dictionary definitions.
Waldron, Torture and Positive Law, op. cit., 1701 See also Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 CAL. L. REV. 509 at ___ (1994).
48 49 47

Greek Case, 1969 Y.B. Eur. Conv. on H.R. 12, p. 186.

See Christian M. De Vos, Mind the Gap: Purpose, Pain and the Difference between Torture and Inhuman Treatment, http://www.wcl.american.edu/hrbrief/14/2devos.pdf?rd=1 at p. 7, for a view of the ECtHR which continues to emphasize the purposive distinction. See also EVANS & MORGAN, op. cit., p. 78. Evans and Morgan want to argue that severity of suffering should not be the key, nor the only source of opprobrium. On a slightly different tack, Jamie Mayerfeld has said “One might even argue that there are circumstances in which cruel, inhuman, or degrading treatment not rising to the level of torture is worse than torture. Some forms of torture, such as waterboarding, last only for seconds. When ill treatment less severe than torture is extended for months and years, one could argue that such treatment is worse than very brief torture.” Jamie Meyerfield, Playing by our own Rules: How U.S. Marginalization of International Human Rights Law Led to Torture 20 HARVARD HUMAN RIGHTS JOURNAL 89 (2007), at 93.

But for reasons I shall explain in section 7, my approach will eschew the connection that is sometimes made between textualism and originalism.


Cite to Official DOD Report.


Attention to word-meaning cannot be the be-all or end-all. But still I think it can be illuminating. I recall what J.L. Austin said in his defense of ordinary language analysis: “[O]rdinary language is not the last word,”52 but it can still be a good place to begin, and I worry a little that in our rush to the bottom line we miss some of the nuance and illumination that ordinary language approach can provide in helping us appreciate the standards that are being invoked here. I think this is particularly important in the US context, where we are unlikely to see the emergence of a sophisticated body of authoritative case law in the foreseeable future on detailed applications of “inhuman and degrading treatment” to water-boarding, lap-dancing, Koran-flushing and so on. We are not going to get an American equivalent of the sort of detailed realist case-law analysis that the ECtHR has been able to establish. The best we will get is a general abstract precedent or two out of Boumediene etc.,53 plus whatever can be gleaned from low level decisions by federal district court judges in ATCS claims. If these standards are to work, they are going to have to work mostly by self-application in the interrogation room, in things like the armed forces’ Field Manuals, and through military and intelligence chains of command. Their use will also be affected by political considerations, and one thing we know is that the politicians and the public do tend to be fixated on enacted words. So let us ask ourselves, if someone was fixated on the texts and the terminology, what would they come up with? Some preliminary points. I am going to assume that these provisions embody quite particular evaluative meanings, not all-purpose evaluations. I follow ECtHR judge Gerald Fitzmaurice in saying that “[t]he fact that a certain practice is felt to be distasteful, undesirable or morally wrong … is not sufficient ground in itself for holding it to [inhuman or degrading].”54

John Austin, A Plea for Excuses, PROCEEDINGS OF THE ARISTOTELIAN SOCIETY, 1956-7: “[O]ur common stock of words embodies all the distinctions men have found worth drawing, and the connections they have found worth marking, in the lifetimes of many generations: these surely are likely to be more numerous, more sound, since they have stood up to the long test of the survival of the fittest, and more subtle, at least in all ordinary and reasonably practical matters, than any that you or I are likely to think up in our arm-chairs of an afternoon -- the most favoured alternative method. … Certainly, then, ordinary language is not the last word: in principle it can everywhere be supplemented and improved upon and superseded. Only remember, it is the first word.”
53 54



From Tyrer v UK, (judicially ordered corporal punishment; birching in Isle of Man) 25 April 1978, sep. opinion, para. 14. (quoted by EVANS & MORGAN, op. cit., p. 89).


Our evaluations work in several different dimensions; there is not just a onedimensional idea of “doing bad things to people.” 55 I assume also that, inasmuch as they embody particular predicates, these norms are not supposed to work on the basis of an all-thingsconsidered judgment of the practices under consideration. They prohibit treatment or punishment which is inhuman or degrading, whatever else it is. So, for example, if someone thinks that water-boarding is necessary in certain circumstances to prevent terrorist attacks, that does not affect the question of whether it is inhuman. If it is inhuman it is prohibited by the provisions, whether it is necessary for defense against terrorism or not. Sometimes it is thought that a prohibition on (say) cruel punishment is going to work differently in a society which believes that God mandates amputation for theft and stoning for adultery.56 I do not want to underestimate the cultural variability of standards, but that particular point need not be true. For it is perfectly consistent to say of a punishment that it is cruel and that God ordains it: God may be cruel;57 God may even ordain things which are properly judged inhuman. The question of whether something is cruel or inhuman is one aspect of its overall evaluation; the question of whether God ordains it is another. The position of the ICCPR is that cruel punishment is prohibited absolutely whether God is thought to have ordained it or not. Of course anyone who thinks that God has ordained cruel punishment is likely to be reluctant to apply the ICCPR prohibition. But that’s like saying that someone who thinks that a democratic legislature has ordained cruel punishment will be reluctant to apply the ICCPR prohibition.58 Human rights are demanding and this is a measure of how demanding they are. The provisions we are considering focus on particular evaluative predicates. We should bear in mind that there are other standards for evaluating treatment and punishment that might have been mentioned but weren’t: unjust treatment or punishment, unfair treatment or punishment,
“Inhuman or degrading treatment” is not, as one scholar puts it, a “catch-all concept that encapsulates almost every conceivable manifestation of unbecoming conduct.” Johan D. van der Vyver, Torture as a Crime Under International Law, 67 ALB. L. REV. 427 (2003). 448
56 57 55

See e.g. the discussion in _____.

Cf. Jeremiah 30: 14 (KJV): “I have wounded thee with the wound of an enemy, with the chastisement of a cruel one, for the multitude of thine iniquity; because thy sins were increased.” I am grateful to Tami Meisels for some discussion of this point.

I don’t mean to equate vox populi with vox dei, but simply to illustrate that the issue of who ordained the treatment or punishment that is in question (and the significance of that) is separate from the significance that the human rights conventions attribute to the cruelty of the treatment or punishment that is in question.


insensitive treatment or punishment, inefficient treatment or punishment, and so on. That these other predicates were excluded helps us focus on the specific meanings of the predicates that were not excluded. I say this because I think the language here indicates that we made a selection from among a variety of different standards. The other thing I am going to assume is that the inclusion of several terms is supposed to mark different meanings. Not all jurists accept this point. The UN HRC says that it does not consider it necessary “to establish sharp distinctions between the different kinds of punishment or treatment.”59 60 Some lawyers follow this lead by just referring to CID (cruel, inhuman and degrading) treatment, as though this were a single predicate indicating a single standard.61 That will not be my approach. Unless they are obviously synonyms—which “inhuman” and “degrading” are not—two words indicate two meanings.62 5. The words themselves Ok: finally, after all this throat clearing, we may turn to particular predicates. (5a) cruel63 As my title suggests, I am going to focus mainly on “inhuman” and “degrading”: today this is for reasons of time / space. But it is also because the meaning of “cruel” is more familiar to us from our own Eighth Amendment jurisprudence. But I would like to recommend to you a little book recently published by the Poston Review, by Colin Dayan, called The Story of Cruel and Unusual.64

59 60

HRC, General Comment No 20/44 (2 April 1992), cited by EVANS & MORGAN, op. cit., p. 76.

Arai-Yokoi, Grading Scale of Degradation: Identifying the Threshold of Degrading Treatment or Punishment Under Article 3 ECHR, 21 NETH. Q. HUM. RTS. 385 (2003): ECtHR has “capitalised on the graduating scale of degrading treatment so as to diversify the protective scope of Article 3, in a continued search for progressive European public order,” in effect supplying “to individual victims a horizon of possible arguments.” what’s this note doing here?
61 62 63

See e.g. Forcese, op. cit. But acknowledge Kendall Thomas’s point about intertextuality and the interplay of the two terms.

OED “1. Of persons (also transf. and fig. of things): Disposed to inflict suffering; indifferent to or taking pleasure in another's pain or distress; destitute of kindness or compassion; merciless, pitiless, hard-hearted. 1c. Of actions, etc.: Proceeding from or showing indifference to or pleasure in another's distress. 4. Of conditions, circumstances, etc.: Causing or characterized by great suffering; extremely painful or distressing; colloq. = severe, hard.”



(5b) inhuman The first thing to note about “inhuman” is that it does not mean the same as “inhumane.” The confusion is very common, especially in the press—even in newspapers that ought to know better. So, for example, on February 17 of this year, a fine op-ed. piece by an Air Force Colonel and former Guantanamo prosecutor on the use of waterboarding was subbed by the New York Times with the internal headline “Waterboarding is Inhumane”—which is not what the author said in his article. He said it was inhuman.65 66 According to the OED, “inhumane” in its modern use is “a word of milder meaning than inhuman.”67 It covers a greater area of conduct than inhuman does, and so it can make these clauses look more demanding than they are and the absolute prohibition look as though it’s less plausible, harder to defend, just by this trick of mispronunciation. On the other hand, we should be aware that Common Article III of the Geneva Conventions does not use “inhuman.” Instead it does say that protected persons “shall … be treated humanely,” before going on to specifically prohibit “cruel treatment,” “outrages upon personal dignity,” etc. But let’s focus on “inhuman,” the term used in the great human rights conventions. According to the OED, “inhuman,” as applied to persons, means “[n]ot having the qualities proper or natural to a human being; esp. destitute of natural kindness or pity; brutal, unfeeling, cruel.” And as applied to actions or conduct, it means “[b]rutal, savage, barbarous, cruel.” Notice that these definitions, particularly the first, seem to apply the predicate to the person meting out the treatment.68 It is the person meting out
65 66

Morris Davis, Unforgiveable Behavior, Inadmissible Evidence, NYT, Feb 17, 2008, op-ed., p. 12.

In the same issue of the New York Times, a news story on John McCain said that legislation that he helped sponsor in 2005 “already prohibits the C.I.A. from ‘cruel, inhumane or degrading treatment.’” It’s simply not clear whether the quotation marks here are supposed to indicate what McCain said or whether it just reflects the reporter’s ignorance that the relevant legislation prohibits inhuman treatment not inhumane treatment. Michael Cooper, McCain Draws Criticism on Torture Bill, NYT, Sunday, Feb 17, p. A27. Both the New York Times and the Wall Street Journal said that McCain’s legislation prohibited inhumane treatment when it was passed into law. David Rogers, Bush Accepts McCain's Torture-Ban Amendment, WSJ, December 16, 2005, p. A6. Elisabeth Bumiller, For President, Final Say on a Bill Sometimes Comes After the Signing, NYT, January 16, 2006, p. A1. Also the “inhumane” version is used over and over again in Richard W. Stevenson and Joel Brinkley, More Questions As Rice Asserts Detainee Policy, NYT, December 8, 2005 Thursday, p. A1. According to the OED there was a time when the two expressions meant the same thing and were used interchangeably, but it notes that by the nineteenth century, “inhumane” had become an obsolete variant of inhuman. And the dictionary says that “inhumane in current use has been formed afresh on humane, in order to provide an exact negative to the latter, and [is] thus a word of milder meaning than inhuman.” The dictionary defines “inhumane” as “destitute of compassion for misery or suffering in men or animals.”
68 67

“Cruel” too seems to be a vice term and to be applied to the suffering mainly by metonymy.


the treatment who is inhuman, who is brutal and unfeeling, who does not have “the qualities proper or natural to a human being.” The term picks out what David Hume called “the vice of inhumanity.”69 Contrast this with an approach that focuses on the suffering itself—a victim-centered rather than an agent-centered approach. Milton used the phrase “inhuman suffering” in the last book of Paradise Lost.70 Suffering would be described as inhuman if it were thought that no human could or should have to put up with it, rather than inhuman because, in some normative sense, no human could or should be able to inflict it.71 The agent-centered approach might include inhuman treatment of an animal. Recall Cordelia’s expostulation in King Lear when she hears of the storm her father was exposed to by her sisters: Mine enemy's dog, /Though he had bit me, should have stood that night / Against my fire.72 The idea would be that, in the circumstances, no human could treat a dog in this way—maybe on account of what Rousseau called our “innate repugnance at seeing a fellow-creature suffer.”73 But it would be odd to describe the dog’s suffering as, in itself, inhuman. Which sense is involved in the torture convention, the European Convention, or in the ICCPR? Maybe both. Judge Fitzmaurice in his separate opinion in the European Court on British maltreatment of detainees in Northern Ireland in the 1970s said that the concept of “inhuman treatment” should be confined to kinds of treatment that … no member of the human species ought to inflict on

69 70


“Can thus / Th' Image of God in man created once / So goodly and erect, though faultie since, / To such unsightly sufferings be debas't / Under inhuman pains?” (PARADISE LOST, x, 507-11) Twining, op. cit., thinks it is obvious that the terms are victim-centered: “words like inhuman and degrading, and, more important, the kinds of concern that lie behind them, refer directly to the situation, and the rights, of the victim rather than to the blameworthiness of the behaviour of the agent.” -- he thinks too that this has implications for the issue of whether specific intention is required.
72 73 71

KING LEAR, Act 4, sc 7.

Rousseau described this “force of natural compassion” as a “pure emotion of nature, prior to all kinds of reflection.” JEAN-JACQUES ROUSSEAU, DISCOURSE ON INEQUALITY, Part One.


another, or could so inflict without doing grave violence to the human, as opposed to animal, element in his or her make-up.74 That’s an agent-centered emphasis—treatment that would do “grave violence to the human, as opposed to animal, element in [the agent’s] makeup,” but it is also relational in the sense of referring to treatment that no member of the human species ought to inflict on another member of the human species, as opposed to treatment that Cordelia would not even apply to her enemy’s dog. The relationality might be explained by sympathy. David Hume observed that “[a]ll human creatures are related to us by resemblance. Their persons, therefore, their interests, their passions, their pains and pleasures must strike upon us in a lively manner, and produce an emotion similar to the original one.”75 The idea would be that the suffering of another human resonates with us—we know what it is like to be a human in pain—and it might be thought that there is an extent of human suffering whose resonance in the person inflicting it would normally excite such sympathetic anguish as would lead him to pity his victim and desist. Now this certainly won’t work as a psychological hypothesis. There are sadists, who enjoy the infliction of suffering which those who talk of “inhumanity” say no human could tolerate inflicting—and these sadists are and remain members of the human species. There are torturers who, even if they don’t derive pleasure from inflicting such suffering, are nevertheless willing to do so for what they regard as good purposes—and they too remain members of our species. Humans can be brutal, savage, cruel, and pitiless in the suffering they are prepared to inflict. We may want to label them inhuman, yet they remain human beings. The inhuman, as Levinas put it, comes to us through the human.76 The term “inhuman” is evidently a normative, not a descriptive one; but it is not simply a term of condemnation. The substance of the claim is that persons who behave in this way are being in some sense untrue to their undoubted humanity. Maybe we can resolve this with talk of pathology: we begin with a sense of normal human moral development that places limits on what one can bear in the way of this fellow feeling, and then we can understand a pathology defined by contrast with that pattern of normal
Sep. opinion in Ireland v UK, para 26, quoted by EVANS & MORGAN who observe that this view has not prevailed.
75 76 74

HUME, op. cit., Bk. II, on compassion: Emmanuel Levinas, Sur l’esprit de Genève in LES IMPRÉVUS DE L’HISTOIRE (1994), 159-65 at 164.


development. So someone’s ability to inflict this suffering leads us to classify him as a monster, a pervert, or as sick or damaged.77 But we have to conjoin this with an acknowledgement that many people of whom we say this remain unconcerned and cheerfully steadfast in their brutality. If we do shift the focus exclusively to the victim, then “inhuman” may mean something like “treatment that no human can endure” or perhaps “treatment that no human should reasonably be expected to endure.” We sometimes talk about a task being inhumanly demanding.78 The idea behind this is not that the demands literally cannot be fulfilled, but that the price of fulfilling them would not be a life that was recognizably human (in autonomy, creativity, enjoyment etc.) This seems a much more demanding requirement than the one’s we are concerned with. I think that inhuman might best be interpreted as involving something approaching a literal sense of “unendurable.” But there is much more to be said about this. When does something become literally unendurable?—when someone dies as a result of it, or loses consciousness, or falls down, or falls apart mentally, or what? These are not intended to be skeptical questions, but to elicit various thoughts that may be important here. Notice the context of these predicates: inhuman what? inhuman punishment, is one of the things that is regulated here. We may want to discuss the implicit requirement that any punishment inflicted should be bearable—should be something that a person can endure, not literally unbearable One ought to be able to do one’s time, take one’s licks. Even going to one’s execution is something that a human can do and do with some dignity–though whether the “death row syndrome” is bearable in this way remains a mater of debate. Apart from punishment, we have “inhuman treatment”–treatment that a human cannot bear. That certain forms of treatment cannot be endured by humans is no doubt of immense interest to torturers. They think they have reason for inflicting treatment of exactly that kind. But of course the
Maybe we should go with Judge Fitzmaurice in hypothesizing that such people by inflicting this suffering also inflict and themselves suffer psychological damage As far as I can tell, the only time when moral philosophers dwell on the term “inhuman” is when they worry that utilitarianism or some other ethic of impartiality might be inhuman in the moral demands that it imposes on us. E.g. F. A. M. Spencer, Ethical Principle and Human Relationships, 36 INTERNATIONAL JOURNAL OF ETHICS, 285 (1926), p. 285: “I have never yet heard of anyone who attempted to share alike with the multitudes dying of hunger in the famine areas of Russia, so that he reduced his own family to partial starvation in order to rescue ten times as many from complete starvation. To demand such a thoroughgoing application of the doctrine of ethical impartiality, however logical, would be felt to be unnatural and inhuman. In Aristotle’s phrase, …it is beyond the powers of human nature." Also The idea of inhuman values, Isaiah Berlin (?), discussed by Vinit Haksar, Aristotle and the Punishment of Psychopaths, 39 PHILOSOPHY 323 (1964).
78 77


prohibition on inhuman treatment is supposed to operate in an environment where their specific interest in torture is already forbidden. Is inhuman treatment just about the infliction of suffering? The sympathetic psychology of David Hume perhaps works best for. But there might be a version of it for other aspects of human experience as well. Treatment may be described as inhuman if it fails in sensitivity to the most basic needs and rhythms of a human life:79 the need to sleep, to defecate or urinate, the need for daylight and exercise, and perhaps even the need for human company. We can imagine what it is like not to be allowed to use a toilet; we can imagine what it is like to be deprived of sleep. This commonality of human experience seems to be what is being appealed to in some shape or form with this standard. Again, remember the context. These standards are supposed to operate in regard to situations like detention, incarceration, captivity: situations of more or less comprehensive vulnerability of a person; and total control by others of a person's living situation. I think the provisions we are considering require those in total control of another’s living situation to think about the conditions that are being imposed, and whether they are conditions minimally fit for a human, with characteristic human needs, life-rhythms etc. I hope that nothing in my account has sounded skeptical about the “inhuman treatment” standard; I have been exploring a couple of lines of argument that try to get at the point we are making when we say that some treatment is “inhuman.” But I have not reached any conclusions and I have no confidence that I have gotten anywhere near the bottom of this issue. I think that the use of this term is either supposed to elicit some shared sense of a normal human response to others’ needs and others’ experiences, or it is supposed to elicit some shared sensitivity to the exigencies and needs of human life and the limits of human endurance. Perhaps both. Both meanings involve a sense of normality associated with our humanity that is used normatively when “inhuman” is deployed in contexts like these. But beyond that, I am not sure. (5c) degrading “Degrading” is usually an impact term, though theoretically I guess it could have the same duality as we noticed with inhuman: treatment that

One of the meanings that the MERRIAM-WEBSTER DICTIONARY gives to “inhuman” is “not worthy of or conforming to the needs of human beings.”



degrades the treater as well as the victim. But I think it is clear that in the human rights context it is a victim-impact term. The OED defines “degrade” rather formalistically as meaning “[t]o reduce from a higher to a lower rank, to depose from … a position of honour or estimation.”80 The connection with rank is an important one. But it needs to be understood against the background of the way in which ideas about human dignity have evolved in our moral vocabulary. Rank is in the first instance a hierarchical idea, and the formal sense of degradation seems to involve taking someone down a notch or two in the hierarchy. Derived from this, we may say that that someone is degraded if he is treated in a way that corresponds to a lower rank than he actually has: treating a queen like a ordinary lady is degrading or treating a professor like a graduate student. This use of degrading can certainly be relevant to the treatment of detainees in time of war. Some of you will be familiar with the David Lean movie, The Bridge on the River Kwai81 will remember the long sequence in which Colonel Nicholson, played by Alec Guinness, insists to the Japanese commander of a prisoner-of-war camp that he and his officers are exempt by the laws of war from manual labor, even though the private soldiers under his command may legitimately be forced to work. Nicholson clearly believes that forcing the officers to work would be degrading, and he suffers a great deal as a result of the Japanese reaction to his refusal to accept this degrading treatment. Intriguing though this is, however, it is pretty clear that the reference to degrading treatment in the modern Geneva Conventions is not about insensitivity to military rank. It depends on an idea of dignity that is more equal than that. The word “dignity” has traditionally had a hierarchical reference: one talked, for example, about the dignity of a king or the dignity of a general. 82 I have argued elsewhere that the modern notion of human dignity doesn’t exactly cut loose from the idea of rank; instead it involves a democratization of rank, an upwards equalization, so that we now try to accord to every human being something of the dignity, rank, and expectation of respect that

The OED also notes that it has a specialized meaning referring to the formal deposition of a person “from his degree, rank, or position of honour as an act of punishment, [e.g.] as [in] degrad[ing] … a military officer, [or] a graduate of a university.”
81 82


Based on Pierre Boulle novel.

Consider this OED citation from the statute taking the crown away from Richard II—“1399 Rolls Parl. III. 424/1 Ye renounsed and cessed of the State of Kyng, and of Lordeshipp and of all the Dignite and Wirsshipp that longed therto.”


was formerly accorded to nobility.83 (I got this idea from Gregory Vlastos, and Jim Whitman has also pursued in his work the idea of “an extension of formerly high-status treatment to all sectors of the population.”)84 Vlastos’s idea is a constructive one: this is what we have decided to do. But there are also more ontological theories about the inherent dignity and high rank of every human person. One idea is that the human species has a rank that is much higher than any other natural species—higher than the animals, a little lower than the angels—by virtue of our reason and our moral powers: and we all partake in the rank of our species. Another connected idea is that each human has a high rank by virtue of being created in the image of God. Associated with both of these is an insistence that this ontological dignity is the birthright of every human, and that, for example, racial discrimination is to be condemned as degrading treatment precisely because it involves the denial of this notion of the dignity of human beings as such.85 I want to consider now four kinds or species of degradation: (i) bestialization; (ii) instrumentalization; (iii) infantilization; (iv) demonization. The account that I give is very similar to that found in Avishai Margalit’s book, The Decent Society though his is about humiliation; by the way, Margalit’s book is more or less the only work of modern moral philosophy I know of that addresses any of this.86 87 (i) Bestialization. The “higher than the animals” sense of human dignity gives us a natural sense of “degrading treatment”—it is treatment that is more fit for an animal than for a human, treatment of a person as
See Jeremy Waldron, Dignity and Rank, 48 ARCHIVES EUROPÉENNES DE SOCIOLOGIE 201 (2007). Gregory Vlastos, Justice and Equality in THEORIES OF RIGHTS (Jeremy Waldron ed., 1984) 41. James Whitman, Human Dignity in Europe and the United States, in EUROPE AND US CONSTITUTIONALISM (G. Nolte ed., 2005) 95, at 97, pursues this idea in the particular context of European constitutional Law, arguing that “[t]he core idea of ‘human dignity’ in Continental Europe is that old forms of low-status treatment are no longer acceptable. … ‘Human dignity,’ as we find it on the Continent today, has been formed by a pattern of leveling up, by an extension of formerly high-status treatment to all sectors of the population.” See generally ibid., 98-102. Whitman believes, however, that U.S. penal practices are definite outliers in this regard. As he notes (ibid., 101), the Thirteenth Amendment to the U.S. Constitution, which is devoted to the abolition and prohibition of slavery, makes a specific exception for those condemned to penal servitude. For a further discussion of the situation in the United States, see also DAYAN op. cit.
85 86 87 84 83

Degradation as mentioned in Scott v Sandford “the degraded condition of this unhappy race” AVISHAI MARGALIT, THE DECENT SOCIETY (199_).

Judith Shklar’s discussion of “cruelty” in ORDINARY VICES is greatly overrated and more or useless in this inquiry.


though he were an animal, as though he were reduced from the high equal status of human to mere animality. It can be treatment that is insufficiently sensitive to the differences between humans and animals, the differences in virtue of which humans are supposed to have special status. So for example a human is degraded by being bred like an animal, used as a beast of burden, beaten like an animal, herded like an animal, treated as though he did not have language, reason or understanding,88 or any power of self-control. A human is degraded if he is treated as though he did not have any religious life or sense of religious obligation, or as though the human (or this human) were one of those animals who are indifferent to separation from offspring or mate. Degradation in this sense might also include cases of post-mortem ill-treatment: eating human flesh, for example, or failing to properly bury a human, or dragging a corpse.89 On the other hand, it would be a mistake to exaggerate the animal/human contrast.90 Sometimes we complain of treatment accorded to a human being that “we wouldn’t treat a dog like that.”91 Sometimes what we object to is treatment that impacts precisely upon the animal aspects of human nature. These are all good points. But they may be more relevant to our understanding of cruelty and inhumanity than of degradation.


Cf. Jeremy Bentham, Truth versus Ashhurst (1792) in THE WORKS OF JEREMY BENTHAM (John Bowring, ed. 1846), Vol. V, 231: “It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do—they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it.” See also JEREMY BENTHAM, OF LAWS IN GENERAL __ (H.L.A. Hart ed. 19__). Cf. Tachiona v. Mugabe 234 F.Supp.2d 401 S.D.N.Y., 2002 (cited earlier, supra, text accompanying note 26): “[A] victim who has been tortured and dies from the assaults, and whose corpse is then dragged through the streets by the assailants, at that point is conceptually no longer himself personally a subject of torture or even cruelty. … But life's veneration of life does not end at the grave; death does not extinguish organized society's reverence for human dignity or the law's recognition of all aspects of life's experience; nor does it diminish protection against life's degradation. Throughout the ages, in almost every culture, civilization has embodied rites with emblems and taboos signaling that the dignity of the human body is worthy of safeguards against desecration even after death. … By any measure of decency, the public dragging of a lifeless body, especially in front of the victim's own home, for close kin and neighbors to behold the gruesome spectacle, would rank as a degradation and mean affront to human dignity. By the same token, the relatives necessarily made to bear witness to the torture and degradation of their kin, or the ransacking of their common property, are technically not themselves victims of torture. Few would quarrel, however, that the offenders' lawlessness would cause these individuals themselves to suffer the severe emotional pain and indignities associated with forms of cruelty and inhuman treatment.” I am grateful to Michael Dorf for pressing this point. Cf. the earlier discussion of Cordelia’s complaint about the treatment of her father in King Lear, supra, text accompanying note 72.


90 91


(ii) Instrumentalization. We exploit animals as though they were mere means, objects to be manipulated for our purposes. This can generate a broader sense of degrading treatment associated with the Kantian meaning of indignity—being used as a mere means, being used in a way that is not sufficiently respectful of humanity as an end in itself. This sense of degradation is, I think, particularly important with regard to sexual abuse.92 (iii) Infantilization. A third type of “degradation” has to do with the special dignity associated with human adulthood: an adult has achieved full human status and is capably of standing upright on his or her own account, in a way that (say) an infant is not. So it is degrading to treat an adult human as though he or she were an infant or in ways appropriate to treating an infant.93 This is particularly important with elementary issues about care of self, including taking care of urination and defecation. A number of the European cases have dealt with treatment that involves a person “being forced to relieve bodily functions in [one's] clothing.”94 And as we know to our shame, this has been an issue in some recent forms of American mistreatment as well.95 (iv) Demonization.96 The prohibition on inhuman and degrading treatment has particular importance obviously in the way we treat our enemies or terrorists or criminals, those we have reason to fear and despise. And obviously one of the functions of the “degrading treatment” standard is to limit the extent to which we can treat someone who is bad or hostile as though he were simply a vile embodiment of evil. There are specific prohibitions in the Geneva Conventions against putting prisoners on display. And we might also mention in this connection the ancient biblical injunction in Deuteronomy 25:2-3, on the number of stripes that may be used if

There is strong line of cases coming out of ITFY on sex crimes. rape (specific issue of degradation of women and sexual violence); see Cecilia M. Bailliet, Examining Sexual Violence In The Military Within The Context Of Eritrean Asylum Claims Presented In Norway 19 INTERNATIONAL JOURNAL OF REFUGEE LAW 471 (2007) “degradation of women, including sexual violence” (477). See also Mark Ellis, Breaking the Silence: Rape as an International Crime 38 CASE W. RES. J. INT'L L. 225 (20062007) on the decision of ITFY in Kunarac, Case No. IT-96-23/1-T 500-01.
93 94 95 96


Torture and regression. David Sussman’s article? Hurtado v. Switzerland Diapers in rendition. This term is from MARGALIT, op. cit., __.


someone is sentenced to be beaten: “Forty stripes may be given him, but not more, lest … your brother be degraded in your sight.”97 I have said that “degrading” is an impact word. How important is it that the degradation be experienced subjectively as humiliating? Some ECHR commentators suggest that the connection is definitional,98 but this is not so, at least not in my dictionary.99 However it is very common in the case law to emphasize the subjective element almost to the exclusion of everything else. Treatment is degrading, we are told, if it arouses in its victim “feelings of fear, anguish and inferiority capable of humiliating and debasing them.”100 (And it is worth bearing in mind that the Common Article 3 of the Geneva Conventions does also use the word “humiliating”.) Often when the European treatise writers consider a distinction between objective and subjective here, they have in mind a distinction between what the particular victim actually felt and what would be felt by a reasonable victim.101 But what I have been talking about with categories of bestial, instrumental, infantile, and demonic degradation focuses in the first instance on what objectively happens to the person in relation to some objective standard of dignity. If anyone’s conscious reaction is emphasized it would be that of the reasonable on-looker, not the victim. But of course we do need to add that human degradation, even in an objective sense, is usually accompanied by a serious decline in self-regard. A term that is sometimes used is “debasement.” Now we say that coinage
Deuteronomy 25:2-3 (ESV). See also Martin Luther’s observation that the purpose is “so that your brother and his humanity should not be made contemptible … in your presence.” LW 9:248 “Lectures on Deuteronomy”).
98 99 97

HARRIS et al., op. cit., 80

(Not in OED; also not in Webster: 1 a: to lower in grade, rank, or status : demote b: to strip of rank or honors c: to lower to an inferior or less effective level <degrade the image quality> d: to scale down in desirability or salability 2 a: to bring to low esteem or into disrepute.) Tysiaogonc v. Poland (2007) 45 E.H.R.R. 42 ECHR Paragraph 67, citing Ireland v United Kingdom ( A/25) (1979-80) 2 E.H.R.R. 25 at [167].] See also the decision of the International Criminal Tribunal for Rwanda defining degrading and humiliating treatment as “[s]ubjecting victims to treatment designed to subvert their self-regard.” [Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgment and Sentence, ¶ 285 (Jan. 27, 2000).] However, in some contexts it is left open; the ITFY defined this offense as requiring: “an act or an omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.” Prosecutor v. Kunarac, Kovac, & Vokovic,Case No. IT96-23 and IT-96-23/1 (Appeals Chamber), Judgment, 161 (June 12, 2002) Thomas F. Berndt Ghost Detainees: Does the Isolation and Interrogation of Detainees Violate Common Article 3 of the Geneva Conventions? 33 WILLIAM MITCHELL LAW REVIEW 1717 (2007): “In analyzing behavior under this standard, the ICTY looked to both a subjective factor--whether or not the victim had experienced an outrage on personal dignity--as well as an objective factor--whether humiliation was so intense that a reasonable person would be outraged. The humiliation must be real and serious.”
101 100


can be debased, but a silver dollar does not know that it is being debased when it is alloyed or clipped. Human dignity does have a conscious component, if only because our dignity is thought to be based on conscious aspects of our being such as reason, understanding, autonomy, free will and so on. And often too human dignity is associated with an element of normative self-regard. So, in the case of humans, debasement may not be possible without some conscious impact, though whether that is subjectively experienced as humiliation nor anguish is a further question. And again: remember the context. We are dealing with vulnerable people in total institutions, with very limited powers to control their own self-presentation. 9. Originalism and the moral reading Finally, I want to say something in the way of specifically legal philosophy, to address the general issue of interpretation. The norms we have been reflecting upon are standards, not rules—they use evaluative rather than descriptive predicates—and as such they pose particular problems which have elicited an array of particular theoretical responses in jurisprudence. One approach to standards is to view them as inchoate rules, formulated in half-baked fashion by the lawmaker, awaiting determinate elaboration and reconstruction by the courts.102 The sort of realist approach taken by the ECHR treatise-writers I mentioned earlier in the lecture takes that tack. As I have said, I prefer an approach which takes more seriously the specific normative significance of the evaluative terminology that is actually used. The evaluative terms are not just blanks to be filled in.103 But if my text-focused word-sensitive approach contrasts with legal realism, it also contrasts with certain versions of originalism, which try to manage the opportunities for subjective adjudication that standards present by tying them to what we know of the intentions of those who framed the provisions, particularly the intentions they had as to how the provisions they framed would be applied. We are familiar with this in America from Eighth Amendment jurisprudence, e.g. discussions of whether the death penalty can possibly be regarded as cruel given the fact that the Framers who gave us that word “cruel” are known to have approved of the death penalty.104 Intended-application originalism is like a version of legal realism—only,
102 103 104

Cite to Raz. But see also Waldron, Vagueness, op. cit.

I am not talking about the pure original meaning approach that some originalists, like Justice Scalia at least in a legislative context, like to distinguish form original intended application.


whereas realism looks forward to actual applications after the enactment, intended-application originalism looks back to anticipated applications previous to the enactment.105 My point is that neither approach takes the original language seriously. Original-application originalism doesn’t take the language seriously because it gives the same language different meanings depending on who counts as the particular class of framers: so, for example, the exact same phrase “cruel and unusual punishment” is going to mean one thing in the English Bill of Rights of 1689, another thing in the American Bill of Right of 1791, another thing in the Texas Constitution, another thing in the Canadian Charter and so on. For the sort of originalist I am considering, the framing-contexts are what matter and there will be important differences between them; the fact that the words are the same is neither here nor here. Of course we know that words change their meanings over time: what a word means in 1689 may not be the same as what it means in 2008. Looking at differences in how the word was applied may help us trace a difference of meaning. And if the word does have different meanings, the originalist can make a good case—based on the framer’s authority or the relation of ratification to legitimacy—to say that it is the meaning it had at that time which should be controlling. However, many originalists are quite disingenuous about this. Suppose it is true that the 1791 framers would not have applied the word “cruel” to capital punishment, whereas some of us would. That doesn’t mean that the word has changed its meaning; all it means is that we disagree about its application. (We disagree with the framers about its application just as we disagree among ourselves about its application.) Original-application originalism then is not really a respectable position. Once we acknowledge that there can be room for disagreement about the application of the same word with the same meaning to a particular phenomenon, it is quite unclear why a consensus among the framers as to it application should be controlling. Certainly none of the legitimacy arguments that support original meaning can be applied to defend originalapplication (once the two are separated). And there are strong originalist arguments the other way. The framers were educated men; they chose to use a word that they know would generate disagreements about application; they chose to do that rather than to lay down rules embodying (say) heir own particular views about capital punishment; if we defer to them at all, we should defer to this choice that they made.

Or sometimes contemporaneous or a few-years-later applications contemporaneous with the enactment: as in Miller v McQuerry. (explain).


I said that original-application originalism will be compelled to assign different meanings to “:cruel and unusual” depending on which ste of framers they are looking at. With “inhuman and degrading” we also find that similar language is used in different contexts: and again if we were originalapplication originalists, we would be referring to quite different sets of framers or ratifiers in each case. (There is also a further question about that significance an originalist should attribute to the deliberate choice to boilerplate text from one context to another. This happens of course all the time in human rights conventions and modern constitutions and bills of rights. And of course it has happened to “inhuman and degrading.” Does the originalist concede any importance to this? Or does he just focus on the elation between framer and language, without considering why the framer took the language from a particular source?) 106 In fact if we were to focus on originalism, we wouldn’t get very far with “inhuman and degrading.” No one knows very much about why these terms were chosen or what the people who chose them had in mind. It just seemed obvious to them that standards like these needed to be invoked.107 The jurisprudence that is usually opposed to originalism is an approach which Ronald Dworkin has called “the moral reading.”108 It is an approach which takes the evaluative character of these terms seriously, reading them as instructions to the norm-applier to make a value-judgment, i.e. to think about and try to the best of one’s ability to make the valuejudgment that is indicated by the terminology. True, the provision does dictate a particular value judgement by the norm-framer—namely, that if something is inhuman then it is utterly forbidden. That much is given to us in the norm as written; but it also instructs the norm-applier to determine what is inhuman, to make that value judgment, and then to apply it in the way the norm indicates. So Dworkin’s approach would suggest in our case that each adjudicator or other norm-applier should ask himself as honestly as he can and in as objective a spirit as he can muster: “What forms of treatment really are inhuman? What forms of treatment really are

By the way, I assume the Framers are not necessarily the drafters. Originalism makes no sense in a legal context unless the framers are taken to be those by whose choices the relevant provisions become law not those bureaucrats who happened to draft them. (Equally we shouldn’t base our constitutional originalist on what we happen to remember from our study in college of the Federalist Papers.) Plus a special problem with originalism with treaties: the very idea of a treaty is supposed to indicate some sort of consensus ad idem.

For example, omission of “cruel” in ECHR and addition of “degrading” to earlier drafts not seen as particularly significant. See EVANS & MORGAN, op. cit., , p. 72. – no particular debate in travaux préparatoires on significance of the particular terms.



degrading—or what really is an outrage on human dignity?” The normapplier is to ask these questions as moral questions, and to try to get to the objective right answer—that is, to the moral truth about inhuman and degrading. He will recognize of course that, as with all objective inquiries, what you get is the speaker’s best opinion, and opinions will differ. But the opinionating is supposed to be subject to the discipline of presenting the question and the answer in a thoroughly objective spirit. I am not entirely comfortable with this. On Dworkin’s account, the norm-applier engages his or her own critical views on what counts as inhuman and degrading (albeit under the rubric of objective judgment). But I think a better way to understand these provisions is that they purport to elicit some standard,109 some shared sense of positive morality, some code or “common conscience” we already share,110 some code that already exists or resonates among us. They are making an appeal to social facts, not just an appeal to individual moral judgement. The language of these provisions appeals to a more-or-less shared sense among us of how one person responds as a human to another human, a more-or-less shared sense of what humans can and should be expected to endure, a more or less shared sense of basic human dignity, a more-or-less shared sense of what it is to respond to elementary exigencies of human life. They remind us that we share such a sense (if we do) and they require us to apply it in these circumstances. We sometimes think of these standards as prohibiting conduct that “shocks the conscience.”111 Again, I prefer to think of that not as an appeal to the moral sensibility of the solitary individual, but to some sort of shared conscience, conscience in the literal sense (“knowing together”). Of course this is a massive act of faith in social morality, but it seems to me more satisfactory to view the provisions we are discussing in this social and positive light than to see them simply as invitations to make our own individual moral judgements. Maybe there is also a third way of pursuing the moral reading. Even if there is some sort of common conscience on these matters of elemental humanity and human dignity, people will inevitably have their own takes on the matter; people will disagree, even when they think of themselves as
109 110

Hart and Sacks passage on standards. (ROL reader.)

Sandy Levinson in an essay, In Quest Of A “Common Conscience”: Reflections On The Current Debate About Torture 1 JOURNAL OF NATIONAL SECURITY LAW & POLICY 231 (2005), p. 243: “[I]s there some meaningful test of conscience which rests, ultimately, on the belief (or hope) that there is what might be called a ‘common conscience’?”

See also use of this phrase in Eighth Amendment jurisprudence; get cite; e.g. Chavez v. Martinez 538 U.S. 760 (2003).


asking and answering the same question, even when they take themselves to be invoking standards that they think are shared.112 How should we regard the prospect of that disagreement?113 There is a mentality—I hesitate to call it a lawyer’s mentality, but I will—which sees disagreements of this kind as a wonderful opportunity, because it means you can make an argument any way you like to support any position you or your client need to have supported. You either see the thing as open to argument; or, if you think you are going to lose, you switch tack and complain that the term is ambiguous. Either way, you know you have the skill to muddy the waters when necessary.114 This mentality is often backed up with a sort of disingenuous obtuseness about the standards, where you act like you have no idea what “inhuman” and “degrading” could possibly mean, as though thse terms were utterly unfamiliar—never heard them before—as though all one could possibly know about them is that they are sites or locations for disagreement. This mentality—this studied moral obtuseness and disingenuous profession of unfamiliarity and bewilderment—was put to work in the Department of Justice in 2003-2005 on the meaning of “torture”; it was and is utterly cynical, utterly disingenuous; and the work that it produced is now being investigated—quite properly—in the Justice Department by the Office of Professional Responsibility.115 Another way of thinking about these matters, less cynical perhaps but no less corrosive, simply exhibits a low tolerance for and an anxiety about ambiguity and contestability. It tends to see things as spinning out of control when norms are deployed whose meanings people disagree about. This is a panic-stricken rather than a cynical way of thinking—a way of thinking that cannot see any difference between contestation, on the one hand, and, on the other hand, a situation in which there is no effective law in this area at all, just individuals and judges imposing their own views.


So we have to confront the specter of moral relativity—relativity over different times and relativity across cultures, which is particularly important for standards like these which are supposed to be (a) global in application and (b) capable of regulating behavior in the midst of war and animosity. Jalloh v. Germany (2007) 44 E.H.R.R. 32 ECHR: Rochin-like case on the use of emetic to get evidence in a drug case. From Concurring Opinion of Judge Zupanccic: “Most worrisome in all of this, however, is the already apparent change in the Zeitgeist and the consequent degradation of minimal standards. What in 1952 was patently "conduct that shocked the conscience" has in 2006 become an issue that must be extensively—and not just in this case—pondered, argued and debated.”
114 115 113

JW from Theology Today on frameworks. Cites.


But think of it, for a moment, from a framer’s point of view. What would motivate a set of framers or statesmen to enact such contestable standards?116 Well, I can imagine people saying that practices of punishment, incarceration and (say) coercive interrogation may be legally acceptable but only if that is pursuant to laws that also have the ability to occasion and facilitate a debate about cruelty or possible inhumanity or degradation involved in the techniques and practices that are going to be used. I can imagine citizens saying to each other: “We will not accept a system of harsh penal laws unless there is a guaranteed opportunity to debate whether particular punishments should be ruled out on account of their cruelty, inhumanity, or affront to human dignity.” And I can imagine them saying “We will not accept a system of coercive interrogation unless the law sponsors and helps focus a similar debate whether particular interrogation techniques should be ruled out on these grounds.” And if someone says to them: “Well there’s bund to be disagreement on these matters,” I can imagine the citizens saying back: “We don’t care. We know there’ll be disagreement among us in our judgments about what is cruel, what is degrading, what is inhuman. Still we would rather have laws that facilitate and focus such a debate than accept a penal system or a system of detention and interrogation that affords no such opportunity for us to air our disagreements about cruelty.” And so they would make this a condition of their acceptance of practices of this kind. Now, it seems clear to me that the application of standards of this kind, indeterminate though their outcomes might be, differs quite considerably from a system where there is no provision at all for substantive assessment of such practices and it differs too from a system which operates with more determinate rules in this regard (such as "No sleep deprivation” “No capital punishment") but does not sponsor any opportunity to debate these at a more abstract level. And that more abstract evaluative debate, focused by words like “inhuman” and “degrading” might be appreciated for its own sake. That’s how I can imagine someone presenting the case for these standards, and if that is what they are for, then I think we do have to be willing to spend time pondering and debating the meaning of the value-terms that are used, so we can participate intelligently in these debates—not like gangsters, not like control-freaks, but like real grown-up lawyers.

The following paragraph is adapted from Jeremy Waldron, Law, OXFORD HANDBOOK OF CONTEMPORARY ANALYTIC PHILOSOPHY 181 (Frank Jackson & Michael Smith eds., 2005).


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