Human rights discourse has been likened to a global lingua franca, and in more ways than one, the analogy seems apt. Human rights discourse is a language that is used by all yet belongs uniquely to no particular place. It crosses not only the borders between nation-states, but also the divide between national law and international law: it appears in national constitutions and international treaties alike. But is it possible to conceive of human rights as a global language or lingua (...) franca not just in a figurative or metaphorical sense, but in a literal or linguistic sense as a legal dialect defined by distinctive patterns of word choice and usage? Does there exist a global language of human rights that transcends not only national borders, but also the divide between domestic and international law? Empirical analysis suggests that the answer is yes, but this global language comes in at least two variants or dialects. New techniques for performing automated content analysis enable us to analyze the bulk of all national constitutions over the last two centuries, together with the world’s leading regional and international human rights instruments, for patterns of linguistic similarity and to evaluate how much language, if any, they share in common. Specifically, we employ a technique known as topic modeling that disassembles texts into recurring verbal patterns. The results highlight the existence of two species or dialects of rights talk—the universalist dialect and the positive-rights dialect—both of which are global in reach and rising in popularity. The universalist dialect is generic in content and draws heavily on the type of language found in international and regional human rights instruments. It appears in particularly large doses in the constitutions of transitional states, developing states, and states that have been heavily exposed to the influence of the international community. The positive-rights dialect, by contrast, is characterized by its substantive emphasis on positive rights of a social or economic variety, and by its prevalence in lengthier constitutions and constitutions from outside the common law world, especially those of the Spanish-speaking world. Both dialects of rights talk are truly transnational, in the sense that they appear simultaneously in national, regional, and international legal instruments and transcend the distinction between domestic and international law. Their existence attests to the blurring of the boundary between constitutional law and international law. (shrink)

This article deals with the housing framework of laws, that is, constitutions. It distinguishes between constitution referring to the de jure, formal, written book of laws and codes that assume supreme authority within any structure, and constitution which defines a body of informal, conditional rules and laws that do not have supreme authority but are abided by, owing to various objective, subjective factors. Constitution reflects the gap between aspiration and actuality, and constitution attracts a higher degree of compliance and implementation. (...) Studies have indeed found a negative relationship between formal rights protection and actual rights observance. The article reveals that rights guarantees are more prone to failure than success as they depend substantially on environmental and institutional conditions. This article emphasizes a symbiosis between judicialization and constitutionalization while a policy question needs to be judicial in nature if the judiciary has to decide on it. (shrink)

mix of the concrete and the abstract (if we include universals, laws, propositions and the like), but whichever of these is the case, the world is not purely abstract, as a formal structure is. One might claim, however, that the world is a structure1 in the sense that it instantiates a structure and is nothing else. In other words, all there is to the..

We live in a liberal, pluralistic, largely secular society where, in theory, there is fundamental protection for freedom of conscience generally and freedom of religion in particular. There is, however, both in statute and common law, increasing pressure on religious believers and conscientious objectors to act in ways that violate their sincere, deeply held beliefs. This is particularly so in health care, where conscientious objection is coming under extreme pressure. I argue that freedom of religion and conscience need to be (...) put on a sounder footing both legislatively and by the courts, particularly in health care. I examine a number of important legal cases in the UK and US, where freedom of religion and conscience have come into conflict with government mandates or equality and anti-discrimination law. In these and other cases we find one of two results: either the conscientious objector loses out against competing rights, or the conscientious objector succeeds, but due to what I consider unsound judicial reasoning. In particular, cases involving cooperation in what the objector considers morally impermissible according to their beliefs have been wrongly understood by some American courts. I argue that a reasonable theory of cooperation incorporated into judicial thinking would enable more acceptable results that gave sufficient protection to conscientious objectors without risking a judicial backlash against objectors who wanted to take their freedoms too far. I also venture into broader, more controversial waters concerning what I call freedom of dissociation – the fundamental right to withdraw from associating with people, groups, and activities. It is no more than the converse of freedom of association, which all free societies recognise as a basic right. How far should freedom of dissociation go? What might society be like if freedom of dissociation were given more protection in law than it currently has? It would certainly give freedom of religion and conscience a substantial foundation, but it could also lead to discriminatory behaviour to which many people would object. I explore some of these issues, before going back to the narrower area of freedom of conscience and religion in health care, making some proposals about how the law could strengthen these basic pillars of a liberal, free society. (shrink)

We live in a liberal, pluralistic, largely secular society where, in theory, there is fundamental protection for freedom of conscience generally and freedom of religion in particular. There is, however, both in statute and common law, increasing pressure on religious believers and conscientious objectors (outside wartime) to act in ways that violate their sincere, deeply held beliefs. This is particularly so in health care, where conscientious objection is coming under extreme pressure. I argue that freedom of religion and conscience need (...) to be put on a sounder footing both legislatively and by the courts, particularly in health care. I examine a number of important legal cases in the UK and US, where freedom of religion and conscience have come into conflict with government mandates or equality and anti-discrimination law. In these and other cases we find one of two results: either the conscientious objector loses out against competing rights, or the conscientious objector succeeds, but due to what I consider unsound judicial reasoning. In particular, cases involving cooperation in what the objector considers morally impermissible according to their beliefs have been wrongly understood by some American courts. I argue that a reasonable theory of cooperation incorporated into judicial thinking would enable more acceptable results that gave sufficient protection to conscientious objectors without risking a judicial backlash against objectors who wanted to take their freedoms too far. -/- I also venture into broader, more controversial waters concerning what I call freedom of dissociation – the fundamental right to withdraw from associating with people, groups, and activities. It is no more than the converse of freedom of association, which all free societies recognise as a basic right. How far should freedom of dissociation go? What might society be like if freedom of dissociation were given more protection in law than it currently has? It would certainly give freedom of religion and conscience a substantial foundation, but it could also lead to discriminatory behaviour to which many people would object. I explore some of these issues, before going back to the narrower area of freedom of conscience and religion in health care, making some proposals about how the law could strengthen these basic pillars of a liberal, free society. (shrink)

Radical Philosophy of Law represents a cross section of contemporary critiques of the legal establishment—its theoretical foundations and its institutions and processes. Recognizing that proposals for alternatives to mainstream legal theory and practice do not belong to any single discipline, Caudill and Gold select essays by scholars in philosophy, sociology, criminology, and political theory, in addition to law professors and practitioners. Recognizing, as well, that no single perspective dominates radical legal theory, the essays exemplify the approaches associated with Marxian and (...) neo-Marxian analyses, American Critical Legal Studies and Critical Race Theory, radical feminism, semiotics, liberal theology, and psychoanalytic theory and criticism. (shrink)

(1999). Critical hermeneutics and American legal interpretation:A search for the meaning of new york times v. sullivan. Angelaki: Vol. 4, Judging the law, pp. 173-188.

Clarke proposes a conception of philosophy that provides an alternative to the reductions of materialism and the search for normative principles. Philosophy's proper role is to describe similarities and differences among differing levels of language, specifically the familiar level of discourse within an ordinary language shared by all and the specialized discourses of social institutions such as science, law, and the arts. By constructing a logical framework in which these comparisons and contrasts can be made, philosophy performs the indispensable role (...) of promoting the integration of disparate elements of our culture. (shrink)

As part of the South Carolina Law Review's symposium on the Roberts Court and Equal Protection, this essay looks at Justice Kennedy's sex discrimination jurisprudence. With the new Court, it's natural to be concerned with how the two new Justices might vote in upcoming sex discrimination cases. However, in this essay, I assume what has been the case so far from Chief Justice Roberts and Justice Alito - that they are reliable votes joining Justices Scalia and Thomas on the Court's (...) more conservative wing. The Justice most people should focus on now is Justice Kennedy, the new median Justice now that Justice O'Connor has retired. This essay seeks to analyze Justice Kennedy's sex discrimination jurisprudence and draw conclusions about his thoughts on sex and gender. First, it reviews the cases involving sex discrimination that Justice Kennedy has participated in while on the Court and shows that he has been a fairly consistent vote against sex discrimination claims. Second, it analyzes Justice Kennedy's votes and opinions in sex discrimination cases and attempt to summarize his views. Finally, the essay evaluates Justice Kennedy's conceptions of gender in his opinions and votes. The essay concludes that Justice Kennedy's new role as median Justice is troubling for sex equality jurisprudence generally and constitutional sex discrimination cases specifically, as Justice Kennedy has shown a tendency, in the many cases arising in the parent/child context, to adhere to traditional and paternalistic gender roles. (shrink)

In Gebser v. Lago Vista Independent School District, the Supreme Court set an exacting standard for establishing institutional liability under Title IX for a teacher sexually harassing a student. That standard, rejecting the simple application of agency principles and instead requiring a student to notify the school of the harassment and then the school to be deliberately indifferent to the student's complaints, has been inconsistently applied by lower courts faced with other, non-harassment forms of sex discrimination under Title IX. In (...) other areas of the law, the Supreme Court has regularly applied well-established federal common-law agency principles to statutes when determining liability issues. This Article argues that, when faced with Title IX non-harassment claims, courts should do the same because the policy reasons that offer the only reasonable explanation of the result in Gebser are not present in cases of non-harassment sex discrimination in schools and because non-harassment sex discrimination lies at the heart of Title IX's prohibition of sex discrimination in federally funded educational institutions. (shrink)

The relationship between Title IX and the Equal Protection Clause is relevant to many areas of sex discrimination law. However, most courts that have addressed cases raising both provisions as well as scholars analyzing them have not developed or understood the relationship between the two. This Article does just that and develops the theory that Title IX has broader protections from sex discrimination than the Equal Protection Clause. To reach the conclusion that Title IX offers more protection, this Article proceeds (...) in the following way. In Part II, the Article surveys court decisions and commentary that have explicitly touched on the relationship between Title IX and the Equal Protection Clause. In Part III, the Article then develops its own analysis of the relationship between Title IX and the Equal Protection Clause, using the text and history of Title IX, the jurisprudential differences between Title IX and the Equal Protection Clause, and the theoretical differences between Title IX and constitutional sex discrimination law. Finally, in Part IV, the Article looks at some of the legal issues affected by an analysis of Title IX's relationship to the Equal Protection Clause and posits solutions based on the doctrinal and theoretical conclusions reached in Part III. (shrink)

In late 2006, the Department of Education changed the Title IX regulations to broaden the permissibility of single-sex education in primary and secondary schools. The changes took place in the context of a growing concern over the performance and well-being of boys in American schools. This article describes, dissects, and critically analyzes the narrative about boys, masculinity, and single-sex education that surrounded these changes. The public narrative about the need for single-sex education focused, in substantial part, on what I call (...) the essentialist myth of masculinity. This article catalogs the important components of this myth: heteronormativity, aggression, activity, sports-obsession, competitiveness, stoicism, and not being girls. The article then shows, using education and gender theory, that this conception of masculinity is harmful to both girls and boys. Instead of pushing this form of masculinity, the law and schools should make room for multiple and varied masculinities for boys (and girls). The article argues that the Title IX regulatory change that allows for the expansion of single-sex schooling can actually work to further empower and entrench the essentialist myth of masculinity, thus violating its own prohibition on sex stereotyping. By adopting strong interpretations of already-existing jurisprudence about gender stereotyping from both constitutional law and Title IX, the article shows how de-essentializing masculinity is possible and preferable in the law. The article concludes that schools that implement single-sex education must do so for reasons other than promoting an essentialized notion of masculinity and that the law must be vigilant in ensuring that schools' implementation not further reify dominant conceptions of what it means to be a boy. (shrink)

Narrating the Christian life -- Practicing the Christian life -- Living the Christian life.

Natural law theory says that humans can only live well if they recognise the goods that are natural for humans, and understand how those goods generate the system of practical guidance that we call morality. Natural law is a long-established and flourishing ethical tradition, with roots in Aristotle and Aquinas, which is increasingly recognised as a worthy competitor to Kantianism, utilitarianism and virtue ethics. The new essays in this collection represent the latest thinking - both constructive and critical - of (...) some of the most important thinkers in the field. And they reflect the growing influence, sophistication, and importance of natural law theory within contemporary ethical debate. (shrink)

What is the cultural value of illegal works that violate the copyrights of popular fiction? Why do they persist despite clear and stringent intellectual property laws? Drawing on the disciplines of new media, law, and literary studies, Illegal Literature suggests that extralegal works such as fan fiction are critical to a system that spurs the evolution of culture. Reconsidering voices relegated to the cultural periphery, David S. Roh shows how infrastructure--in the form of legal policy and network distribution--slows or (...) accelerates the rate of change. He analyzes the relationship between intellectual property rights and American literature in two recent copyright disputes. And, in comparing American fan fiction and Japanese dojinshi, he illustrates how infrastructure and legal climates detract from or encourage fledgling creativity. Illegal Literature fills a crucial gap between the scholarly and the popular by closely examining several modes of marginalized cultural production. Roh makes the case for protecting an environment conducive to literary heresy, the articulation of an accretive rather than solitary authorial genius, and the idea that letting go rather than holding on is important to a generative creative process. In a media ecology inundated by unauthorized materials, Illegal Literature argues that the proliferation of unsanctioned texts may actually benefit literary and cultural development. (shrink)

Although there are many studies on John Calvin’s teaching on natural law, the relation between natural law and Roman law has received relatively less attention. This essay examines the relation between natural law and Roman law in Calvin’s exegetical writing on the Mosaic law. I argue that Calvin regarded Roman law as an exemplary, albeit imperfect, witness to the natural law, and he used Roman law to aid in his interpretation of the Mosaic law. Since he assumed that Roman law (...) embodies principles of natural law, Calvin drew on Roman law as an aid in order to distinguish natural from positive law within the Mosaic law. He also broadened the scope of commandments in the second table of the Decalogue by comparison with natural and Roman law. Yet although Calvin drew many continuities between Mosaic and Roman laws, he remained critical of the Roman system due to various failings in comparison with Scripture and principles of natural law. (shrink)

In anticipation of extraterritorial application of antiabortion laws, many states have enacted laws that attempt to shield abortion providers, helpers, and patients from civil, professional, or criminal liability associated with legal abortion care. This essay analyzes and compares the statutory schemes of the seven early adopting shield states: California, Connecticut, Delaware, Illinois, Massachusetts, New Jersey, and New York. After describing what the laws do and how they operate, we offer reflections on coming disputes, areas of legal uncertainty, and ways to (...) improve future shield laws. (shrink)

An empirical law or evidence which supports a theory tends to have the greatest scientific value when it seemed improbable before it was investigated. Evidence which falsifies a theory tends to have the greatest value when it seemed probable that the investigation would confirm the theory. A scientist who wishes to optimize his contribution to knowledge probably will investigate most frequently hypotheses which seem neither very probable nor very improbable of being confirmed. This strategy leads neither to a maximum number (...) of confirmations of a theory, nor to a set of tests which are maximally severe. (shrink)

Gilbertson, Savulescu, Oakley and Wilkinson propose extending the availability of terminal sedation (TS) to patients with intractable pain and/or suffering who are expected to live more than 2 weeks (hence the designation of extended TS (ETS)) and to patients whose values are known but who do not have decision-making capacity.1 Their plan is worthy of serious consideration: it is, after all, based on the fundamental and well-recognised medical ethical values of patient autonomy and beneficence. But, even when restricted to jurisdictions (...) that allow assisted dying, the ETS proposal raises three important issues. When the authors speak of ‘assisted dying’ and of ‘Voluntary Assisted Dying (VAS)’, they refer specifically to the laws in Australia and similar ones in New Zealand, the Netherlands, Belgium, Luxembourg, Switzerland, Spain and Canada that permit clinicians either to provide patients with lethal medications for self-administration (formerly called physician-assisted suicide) or to administer lethal medications themselves (voluntary euthanasia). First, the authors distinguish—as do many patients and the public—between sedation to unconsciousness and death. Indeed, as the authors point out, the difference seems obvious: unconsciousness can be reversed, death cannot. Yet in the case of TS, this may be …. (shrink)

Our society has long sanctioned, at least tacitly, a degree of conflict of interest in medical practice and clinical research as an unavoidable consequence of the different interests of the physician or clinical investigator, the patient or clinical research subject, third party payers or research sponsors, the government, and society as a whole, to name a few. In the past, resolution of these conflicts has been left to the conscience of the individual physician or clinical investigator and to professional organizations. (...) The public is no longer willing to allow health care providers to wholly govern their own conflicts of interest for several reasons. These include: new forms of health care financing and delivery that provide innovative and lucrative opportunities for physician or insurer enrichment at patient expense; the increased importance of commercial research support as peer-reviewed governmental research support has decreased; evidence that physicians and clinical investigators too frequently resolve conflicts of interest in their own favor; and a general societal mistrust of authority. This volume represents a multidisciplinary effort, drawing from philosophy, medicine, law, economics and public policy to identify and categorize conflicts of interest in medical practice and clinical research, and, where possible, to offer a mechanism for resolving them. Part I addresses conflicts of interest from a theoretical perspective, offering basic concepts and analytical frameworks. The second part discusses two topics prominent in current health care policy debates--self-referral and financial incentives to limit care. Part III examines conflicts of interest generated by pharmaceutical industry involvement in clinical practice and research. The final section deals with conflicts of interest in clinical research in several contexts, including institutional reviews boards, clinical trials, Cooperative Research and Development Agreements between government and private researchers, brokerage of research subjects by Contract Research Organizations, and cost-effectiveness studies. (shrink)

The semiotic investigation of the divine or transcendent authoriality of religious law involves, in the context of discussions concerning the propriety or impropriety of the influence of religion in “secular” political and legal systems, preliminary boundary work to discern the meanings of “religion”, “secular”, and “belief.” Jeremy Waldron’s account of the propriety of religion in “secular” politics, mirroring but reversing John Rawls’ account of religion’s impropriety in that context, can be contrasted with neo-Calvinist (and other) conceptions of pluralism and the (...) inevitability of fundamental “beliefs” in all political and legal thought. In the latter perspectives, religious believers are neither unique in their appeal to transcendent values, nor relegated to advancing theocracy (because pluralism is conceived as a religious value rather than religion’s opposite). A workable alternative to the conventional discourse of religious influence in politics and law is therefore evident. (shrink)

‘The Debauched Commons: A Dark Parable’ summarizes issues regarding intellectual property rights and immaterial culture through a nuanced reading of how First Nations Peoples worldwide have been forced by forms of neoliberal-capitalist exploitation of the knowledge commons to ring-fence and/or commodify their lived traditions, in many cases dating back 100,000 years and clearly predating any and all Western (First World) concepts of ownership. The intention of the structuralist-inspired reading of this enforced defensive position is to emphasize and clarify issues concerning (...) prior art and moral rights, two of the most ambiguous and gamed elements of copyright and patent law. Drawing upon the international context of the _Declaration on the Rights of Indigenous Peoples_ (2007) and the _Convention for Safeguarding Intangible Heritage_ (2003), this essay will focus, in part, on the travails of Aboriginals in Australia as representative of First Peoples worldwide and their long-exploited and long-expropriated traditions, inclusive of land, but foremost _lived knowledge_, but also their often compromised position _vis-à-vis_ various Australian state and Commonwealth legislation concerning recognition of their copyright, moral rights, and intellectual property rights. In this complex dance between tradition, heritage, and law, the so-called public domain often also becomes a de facto warehouse for the eventual conversion of intangible rights to collectively held and stored cultural property, which is then leveraged and/or converted to cultural capital by both public institutions and private companies. The primary premise of the analytic to be applied is that commodification of knowledge is more or less co-equal to the digitization of culture and the regimes of expropriation and/or outright theft associated with platform cultures. Platform culture, in turn, implicates otherwise benign, or apparently benign institutions (for example, academia and the art world) claiming to advance understanding and resolution of the twin nemeses of post-contemporary cultural politics—diversity and justice. The subtle machinations of what has come to be called the art-academic industrial complex will thus be analyzed for implicit and explicit practices that are reducible to the appropriation of native rites and rights, and laws and lores, for self-serving reasons inclusive of radical-chic posturing and politically correct tokenism. (shrink)

The orientation and leadership of the revolutionary “renewal of the German mind,” whose witnesses and participants we are, point in two directions. On, after seizing power, would like to talk the mind into helping out with internal development and promises it a golden age if it joins up; indeed it even offers it the prospect of a certain voice in decision making. The other direction, on the contrary, attests its mistrust of the intellect by declaring that the revolutionary process will (...) continue indefinitely, and has room for the mind in its task; or it might also assure the intellect that it is not needed at all because a new mind has already turned up, and that the old one might as well jump into the fire and either burn to ashes or purify itself into its elements. What has happened up to the moment these words are being written leaves no doubt that the second direction is on the march, the first its musical accompaniment. Nor can it be otherwise than that a Movement [National Socialism] that has manifested itself so powerfully demands above all that the intellect complete assimilate and subordinate itself to the Movement. But then again, it is possible that the intellect cannot do this without renouncing itself. Surely there must be some sort of boundary here, since nothing happens that is not contingent; so it is a good test for the intellect that today it has everywhere been saddled with a kind of kangaroo-court mentality that judges it not according to its own laws, but according to the law of the Movement. Robert Musil made a decisive contribution to twentieth-century European literature. Among his works available in English are Young Törless, Posthumous Papers of a Living Author, and The Man Without Qualities. Burton Pike is professor of comparative literature at the Graduate School of the City University of New York. With Sophie Wilkins, he has edited and translated a new edition of Musil’s novel The Man without Qualities, available in 199. He is the author of Robert Musil: An Introduction to His Work and The Image of the City in Modern Literature . David S. Luft teaches modern European intellectual history at the University of California, San Diego. He is the author of Robert Musil and the Crisis of European Culture, 1880-1912. (shrink)

An in-depth study of Kierkegaard's thinking on Christology, emphasising the radical nature of his approach to the incarnation, with an emphasis on the call of the Christian believer to a life of 'kenotic' (self-emptying) discipleship in imitation of Christ.

David Law's new book deals with Kierkegaard's `apophaticism' - or those elements of Kierkegaard's thought which emphasize the incapacity of human reason and the hiddenness of God.

The theological energies released by Martin Luther in 1517 created a set of theological insights and problems that eventually led to the development of kenotic Christology. This article traces how kenotic Christology originated in the Eucharistic Controversy between Luther and Zwingli, before receiving its first extensive treatment in the debate between the Lutheran theologians of Tübingen and Giessen in,the early seventeenth century. Attention then turns to the nine-teenth century, when doctrinal tensions resulting from the enforced union of the Prussian Lutheran (...) and Reformed churches created the conditions for a new flowering of kenotic Christology in the theologies of Ernst Sartorius and, subsequently, Gottfried Thomasius. Kenotic Christology ultimately originates with Luther, however, for it owes its existence to the creative theological energies he unleashed and which remain his lasting legacy. (shrink)

This chapter provides a survey of Kierkegaard's views of systematic theology, doctrine, and dogmatics. It demonstrates that while Kierkegaard's view of theology is generally negative, for he regards it as a human enterprise created in order to avoid doing God's Word, his attitude to doctrine and dogmatics is nuanced and complex. Kierkegaard rejects doctrine insofar as it objectifies Christianity, but nevertheless generally accepts the classic doctrines of the Christian faith and sees no reason to reform them. This ambivalence toward doctrine (...) stems from his conviction that the task facing the believer is not to reflect on doctrine, but to appropriate and apply it existentially to his/her own individual existence. Similarly, although Kierkegaard rejects the efforts of contemporary dogmaticians, dogmatics itself is valid insofar as it reproduces the paradoxical character of Christianity and the decision between faith and offense with which Christian dogmas confront every human being. (shrink)

This chapter analyses Soren Kierkegaard's thought about the history of theology, discussing different notions of historical theology and evaluating how they apply to the way Kierkegaard engaged with history of theology. It explains the two key elements of the Kierkegaardian historical theology: tracking the process of decline from the Christianity of the New Testament to the enfeebled caricature that passed for Christianity in contemporary Denmark; and recovering the voices of the true Christians of the past who genuinely followed Christ in (...) suffering and martyrdom. (shrink)

This essay examines the theology of the nineteenth century Danish theologian and churchman Hans Lassen Martensen, focusing on the disputed question of the kenotic character of Martensen's Christology. A survey of the scholarship on this question is followed by discussions of Martensen's doctrine of God and his Christology, giving particular attention to his controversial notion of the double life of the Logos, i. e. the view that the Logos continued to enjoy an unlimited divine existence in the sphere of eternity (...) while simultaneously living a limited, earthly human existence for the duration of the incarnation. The essay concludes by arguing that Martensen has developed a form of Nestorianism and that his Christology can best be classified as ‘Nestorian kenoticism,’ i. e. an eccentric and problematic form of Christology which affirms the abandonment by the logos ensarkos of the divine attributes during the incarnation, while at the same time insisting that the logos asarkos remains unaffected and in full possession of his powers. (shrink)

This Article is a contribution to the torture debate. It argues that the abusive interrogation tactics used by the United States in what was then called the “global war on terrorism” are, unequivocally, torture under U.S. law. To some readers, this might sound like déjà vu all over again. Hasn’t this issue been picked over for nearly fifteen years? It has, but we think the legal analysis we offer has been mostly overlooked. We argue that the basic character of the (...) CIA’s interrogation of so-called “high-value detainees” has been misunderstood: both lawyers and commentators have placed far too much emphasis on the dozen or so “enhanced interrogation techniques” (EITs) short-listed in government “torture memos,” and far too little emphasis on other forms of physical violence, psychological stressors, environmental manipulations, and abusive conditions of confinement that are crucial to the question of whether the detainees were tortured. Furthermore, we dispute one of the standard narratives about the origins of the program: that it was the brainchild of civilian contractor psychologists because— in the CIA’s words—“[n]on-standard interrogation methodologies were not an area of expertise of CIA officers or of the US Government generally.” This narrative ignores the CIA’s role in devising these methods, in spite of the decades of prior CIA research and doctrine about forcing interrogation subjects into a state of extreme psychological debilitation, and about how to do so—by making them physically weak, intensely fearful and anxious, and helplessly dependent. By neglecting this history and focusing on the contractors and the EITs they devised, this narrative contributes to the misunderstanding that the torture debate is about EITs and nothing else. In effect, a “torture debate” about EITs and the torture memos neglects the purloined letter in front of our eyes: the abusive conditions the CIA inflicted on prisoners even when they were not subject to EITs, including abuses that the torture memos never bothered to discuss. Unpacking what this debate is really about turns out to be crucial to understanding that such interrogation methods are torture under existing U.S. law. The U.S. Torture Act includes a clause in its definition of mental torture that was intended to ban exactly the kind of interrogation methods the CIA had researched, out of concern that our Cold War adversaries were using them: mind-altering procedures “calculated to disrupt profoundly the senses or the personality.” That is precisely the “non-standard interrogation methodology” the CIA employed after 9/11. (shrink)