Larkins, Jeremy

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York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 49, Number 2 (Fall 2011) Article 15Book Notes: Torture, Terror, and Trade-offs:Philosophy for the White House, by JeremyWaldronJeremy LarkinsFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook NoteThis Book Note is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in OsgoodeHall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationLarkins, Jeremy. "Book Notes: Torture, Terror, and Trade-offs: Philosophy for the White House, by Jeremy Waldron." Osgoode HallLaw Journal 49.2 (2011) : 405-406.http://digitalcommons.osgoode.yorku.ca/ohlj/vol49/iss2/15405Book NoteTORTURE, TERROR, AND TRADE-OFFS: PHILOSOPHY FORTHE WHITE HOUSE, by Jeremy Waidron 1JEREMY LARKINSMUCH INK HAS BEEN SPILLED ON THE SUBJECTS of torture and terrorism in thedecade since the September 11, 2001 terrorist attacks. The eruption of public dis-course in the United States and elsewhere has challenged lawyers, governments, andcitizens to reevaluate their attitudes towards liberty and security, and to reflect on thelimits of permissible government action in dealing with terrorist threats. ProfessorJeremy Waldron has been a prolific contributor to this discourse, and his latest bookstrives to provide clarity to concepts that are often distorted for political expediency.Torture, Terror, and Trade-Offi gathers a collection of Waldron's essays writtenmostly from 2002 to 2007, many of which were published previously in prominentscholarly journals. As such, each chapter can be read as a stand-alone piece. However,it is only by reading the collection as a whole that one begins to understand thecurrents of thought that comprise Waldron's entire approach to jurisprudence.In many respects, Waldron offers a unique voice in modern debates aroundtorture. Among his colleagues in moral philosophy and jurisprudence, Waldronregards his beliefs about the absolute prohibition on torture as a minorityviewpoint, especially when juxtaposed to those who begin by conceding theappropriateness of torture in a "ticking bomb" situation.2 In general, Waldroncharacterizes the condemnation of torture in modern political discourse as "half-hearted" and "heavily qualified,"3 something he finds a shameful and regrettablestate of affairs. Of course, Waldron is not the only public intellectual to opposethe use of torture, but his position stems not just from a belief about the inherentwickedness of torture or the inviolability of persons. In chapter seven, the longest1. (New York: Oxford University Press, 2010) 357 pages.2. [bid at 5-6.3. Ibid at 6.406 12011) 49 OSGOODE HALL LAW JOURNALof the book, Waldron analyzes the relationship between torture and positive law,arguing that torture is incompatible with the spirit of the American legal system.Law, for all its forceful and coercive qualities, respects the dignity and agency ofthose who are its subjects, and does not operate by brutalizing them or trying tobreak their will. The prohibition on torture serves as "archetype" of this policy, touse Waldron's words, and to abandon it would weaken the foundations of otherareas of law that embody this policy.4Several of the essays in the book set out to explore concepts that remainunderdeveloped despite their prevalent use in public discourse. Chapter threeexplores the definition of terrorism in an attempt to understand what featuresdistinguish it from other morally abhorrent acts that occur in the context ofwarfare or ordinary domestic crime. Chapter five discusses the meaning ofsecurity, a concept Waldron sees as neglected by political philosophy comparedto the attention given to its common counterpart, liberty. The chapter exploreswhether security can be reduced to pure safety and questions whether we canspeak meaningfully of a trade-off between liberty and security when the libertyof one group is traded for the security of another. Chapter nine contemplateswhether a prohibition on cruel, inhuman, and degrading treatment is meantto be a "broad catch-all dignitarian restraint"5 on conduct (as it is sometimesemployed), or whether each word has a distinct meaning that is legally significant(Waldron concludes the latter).These efforts are not undertaken simply to achieve analytical clarity. The finalchapter implores new lawyers to reflect upon the Rule of Law and its connectionto good lawyering, particularly in government service. The book's subtitle, Philosophyfor the White House, indicates that its contents can be a guide to governmentaldecision making. Sometimes this is strictly definitional: if legislators seek todistinguish terrorist crimes from other crimes like murder or arson, a clear defini-tion is needed to ascertain whether legislation is over- or under-inclusive.4 Moreoften, Waldron speaks to something deeper about the dignity and honour of theenterprise of law. Waldron is concerned that products like the infamous torturememos of John Yoo and Jay Bybee are made possible when we lose sight of theanimating spirit of the law. As long as it remains necessary to have a discoursein the legal profession and wider society about the proper responses to terrorism,contributions like Torture, Terror, and Trade-Offi will have a valuable place.4. Ibid at 232-233.5. Ibidat 291.6. Ibid at 49.7. Ibid at 188, 207.

Book Notes: Torture, Terror, and Trade-offs: Philosophy for the White House, by Jeremy Waldron

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Book Notes: Torture, Terror, and Trade-offs: Philosophy for the White House, by Jeremy Waldron

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York University, Osgoode Hall Law School