Torture and Dignity

An Essay on Moral Injury

J. M. Bernstein

• Publisher: University of Chicago Press
• Year: 2015
• Print ISBN: 9780226708874, 9780226266329
• eBook ISBN: 9780226266466
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

In this unflinching look at the experience of suffering and one of its greatest manifestations—torture—J. M. Bernstein critiques the repressions of traditional moral theory, showing that our morals are not immutable ideals but fragile constructions that depend on our experience of suffering itself. Morals, Bernstein argues, not only guide our conduct but also express the depth of mutual dependence that we share as vulnerable and injurable individuals.  
           
Beginning with the attempts to abolish torture in the eighteenth century, and then sensitively examining what is suffered in torture and related transgressions, such as rape, Bernstein elaborates a powerful new conception of moral injury. Crucially, he shows, moral injury always involves an injury to the status of an individual as a person—it is a violent assault against his or her dignity. Elaborating on this critical element of moral injury, he demonstrates that the mutual recognitions of trust form the invisible substance of our moral lives, that dignity is a fragile social possession, and that the perspective of ourselves as potential victims is an ineliminable feature of everyday moral experience. 

Part One

History, Phenomenology, and Moral Analysis

One

Abolishing Torture and the Uprising of the Rule of Law

I. Introduction

Our moral horror and unanimous moral disapproval of torture is a new—and perhaps still fragile—moral fact that arose only in the second half of the eighteenth century. Beginning with the installation of the Roman-canon legal system in the eleventh and twelfth centuries, torture had a central role in all European legal systems: first, as a pivotal element in the law of evidence; and second, as a dominating component of the penal system. In the Roman-canon legal system, crimes punishable by the death penalty, or by severe mutilation or maiming, required either the testimony of two eyewitnesses or a confession. This was a hard standard to satisfy—murderers tend not to commit their vile deeds before eyewitnesses, nor do they readily confess them; hence, torture was used as a supplement in order to produce new evidence or to “prompt” a confession. Without torture, the law of evidence would have been unusable for serious crimes. Yet, with breathtaking rapidity, torture was abolished throughout Europe in the second half of the eighteenth century. “So powerful was this revulsion against torture as a symbol of the enormities of the ancien régime,” argues Edward Peters, “that not even the moral passion of the Revolution [with its murderous Terror] and the reaction that followed it inspired a return to torture . . . [The] real influence of writers like Voltaire and Beccaria: their work simply made torture unthinkable.”1 So complete was torture’s abolition throughout Europe that in 1874 Victor Hugo could exclaim that “torture has ceased to exist.”2

Running parallel to these events is the reception of Cesare Beccaria’s On Crimes and Punishments. First published in 1764, it was almost immediately translated into twenty-two European languages; it went through twenty-eight Italian editions and nine French ones before 1800 (Voltaire produced a commentary that became a part of most editions); it was translated into English in 1767 (Jeremy Bentham becoming Beccaria’s “apostle”), with multiple editions in both Britain and the United States (Jefferson copied long passages into his notebooks). It played a direct role in law reforms initiated by Catherine II, Frederick the Great, the Virginia Commonwealth, and those carried out in France before and during the Revolution.

Beccaria was among the most influential philosophers of the eighteenth century; everyone read him. Today he is virtually unknown. How can we explain the massive influence, and the almost complete forgetting of his work? More precisely: what was the historical import of the abolition of torture, and what was Beccaria’s role in its abolition? In the nineteenth century, trumpeting an Enlightenment idea of historical progress, the argument went that it was the writings of Beccaria and Voltaire alone that had brought about the abolition of torture throughout Europe. This is a philosopher’s “fairy tale,”3 but not completely so: Beccaria’s little treatise did bring to moral, legal, and political fulfillment the eighteenth-century humanitarian revolution by giving it principled legal form. In so doing, the Beccaria-informed abolition of torture grounds modern political morality. Without Beccaria, the legal formation of moral modernity would not have come to be; in forgetting Beccaria we have forgotten a founding moment of political modernity.

In the next section, I shall track the changed conception of body and pain presupposed by the abolition of torture. In section III, I reconstruct Beccaria’s treatise as espousing the rule of law as the determinate negation of the conception of law implied by the practices of judicial and penal torture. I am tempted to say that the “dignified” modern bodily autonomous subject is a construction out of or emerges from the demands of substantive rule of law. Section IV tracks the development of what I call the “Beccaria thesis”—namely that the force of law is constituted by its unconditional eschewal of brute force as exemplified by torture, in the contemporary jurisprudential thought of Jeremy Waldron. In the final section, I argue that neither Beccaria’s nor Waldron’s defense of the rule of law as the determinate negation of the sovereign law of torture has generated a corresponding moral philosophy. Hence, the moral meaning of the abolition of torture remains unthought.

II. Abolishing Torture: The Dignity of Tormentable Bodies

In the opening pages of Discipline and Punish, Michael Foucault powerfully summarizes the scope of the humanitarian revolution with his memorable contrast between the 1757 execution by torture of the would-be regicide Damiens, and the terse list of rules that make up the daily timetable for a prison for young offenders in Paris in 1838. Damiens was to be placed on a scaffold, where “the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulfur . . . and then his body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes and his ashes thrown to the winds.”4 This gruesome image, that, with a hint of relish, Foucault continues quoting accounts of for another three pages, contrasts utterly with the numbing routine of the prison: “At the first drum-roll, the prisoners must rise and dress in silence, as the supervisor opens the cell doors. At the second drum-roll, they must be dressed and make their beds. At the third, they must line up and proceed to the chapel for morning prayer.”5 There then follows a precise structuring of the day: meals, work, schooling, more work until the boys are led back to their cells, undress in silence, and return to their beds for the night. To explain and understand the meaning of the abolition of torture cannot involve anything less than grasping the seismic shift in penal practices marked by the contrast between Damiens being torn to pieces by four horses and the boys in a workshop listening to a passage from an uplifting text read to them by their supervisor. Something of the moral meaning of modernity is lodged in this contrast.

The central motif here is Foucault’s articulation of the transfigured role of the human body in the shift from torture to imprisonment, how the body disappears as a target of penal repression, and how thereby the theatrical representation of pain becomes excluded.6

One no longer touched the body, or at least as little as possible, and then only to reach something other than the body itself . . . The body now serves as an instrument or intermediary: if one intervenes upon it to imprison it, or to make it work, it is in order to deprive the individual of a liberty that is regarded both as a right and as property. The body, according to this penality, is caught up in a system of constraints and privations, obligations and prohibitions. Physical pain, the pain of the body itself, is no longer the constituent element of the penalty. From being an art of unbearable sensations punishment has become an economy of suspended rights. If it is still necessary for the law to reach and manipulate the body of the convict, it will be at a distance, in the proper way, according to strict rules, and with a much “higher” aim . . . When the moment of execution approaches, the patients are injected with tranquillizers. A utopia of judicial reticence: take away life, but prevent the patient from feeling it; deprive the prisoner of all rights, but do not inflict pain; impose penalties free of all pain. 7

Although at the conclusion of this passage Foucault is leaping from the end of the eighteenth century into our own time, he is assuming that with respect to the new placement of the body in the penal system, our methods of execution are fully continuous with the introduction of the guillotine and the drop method of hanging: “an execution that affects life rather than the body.”8

Consider the italicized sentence in the passage above as offering, in a nutshell, the meaning and essence of the humanitarian revolution. Two issues are prominent here: the body of individuals coming to have a new status, a new meaning, requiring a new regard; and, as cause or consequence of this new standing, the body’s entering into a changed relation to the state. Let us consider the latter issue first. As opposed to the private and secretive character of judicial proceedings, penal torture and execution were great public spectacles. In a world in which there was as yet no police and no routine mechanisms of law enforcement, punitive public executions were certainly meant to terrify and deter. But these characteristics had a specific contour in monarchies in which the authority of the law and the authority of the sovereign person were united. In breaking the law, the criminal was attacking the very person of the sovereign, attacking his (or her) authority. Public executions thus had the juridical-political function of reconstituting the momentarily injured sovereignty; they “restore sovereignty by manifesting it as it most spectacular . . . Its aim is not so much to re-establish a balance as to bring into play, at its extreme point, the dissymmetry between the subject who has dared to violate the law and the all-powerful sovereign who displays his strength.”9 What the tortured body spectacularly demonstrates is the power of the sovereign, by which I mean the authority, validity, and legitimacy of the sovereign’s laws, as well as the force of those laws. If it were only force that had been at stake, then there would have been no connection between the judicial proceedings and the penal finale, no truth in punishment, only vengeance; if tortured executions had just been occasions for terrifying the people, then they could not have been festive occasions. Sovereign power was an expression of the unity of the people with the sovereign and hence the unity of the people with themselves.

Giving expression to this unity was accomplished through the spectacle of torture: “Under the traditional understanding, the pains of the body did not belong entirely to the individual condemned person. Those pains had the higher religious and political purposes of redemption and reparation of the community . . . Public executions brought thousands of people together to celebrate the community’s recovery from the crime’s injury.”10 What was seen as the bodies of the convicted were ripped asunder was the awesomeness of sovereign power. But to so experience the power of the sovereign was what it was to experience the force of law; the lawfulness of law was inseparable from sovereign power, where sovereign power was, again, finally inseparable from its expression in the tortured body of the condemned.

Sometime during the eighteenth century this ended; perhaps not the terror, but its awesomeness, its ceremonial authority, its capacity to authorize the law, its power of uniting and renewing community. The carnival was over. Suddenly, instead of seeing sovereign authority in the tortured body, the people began to see vengeance and brutality; instead of gathering community, public executions, came to feel like an attack on community, a dismembering of it, as if the dismembered body of the individual now stood for what was happening to the community through legal violence; even criminals became objects of sympathy. Torture thus became an occasion for solidarity with the victim rather than with the sovereign, as if the sovereign was now the primary threat to the community. Lynn Hunt—whose argument is the basis for the one being offered here—states that in the new state of affairs “cruel punishment exacted in a public setting constituted an assault on society rather than a reaffirmation of it. Pain brutalized the individual—and by identification, the spectators—rather than opening the door to salvation through repentance.”11

Underlying the changed public reaction to the spectacle of torture was a changed understanding of the locus and meaning of pain. Sometime in the second half of the eighteenth century pain slowly stopped being metaphysically meaningful; incrementally but emphatically pain stopped having sacramental meanings that could be parlayed into political and epistemological-juridical meaning and became, for all intents and purposes, meaningless, a blunt experience of what should not be, of what should not be borne or suffered. Pain was no longer a sign to be translated or a means of ennoblement.

Evidence for the disenchantment of the meaning of pain can be found in the records of surgeons, those on the frontline in the treatment of pain. In the sixteenth century, relieving even intolerable pains was considered a side issue; because pain was the sign of a deeper cause, silencing pain could be dangerous with respect to locating the cause. Pain inspired neither sympathy nor pity; it was still then a part of the Godly ordained natural course of things that needed to be borne until the cause itself could be removed. By the end of the eighteenth century this had changed; pain itself was an issue, both for the sufferer, for companions and onlookers, and for the surgeon. Pierre Dionis, in his A Course of Surgical Operations (translated from the second French edition, 1733), writes: “There are surgeons who are offended at the cries of their patients, and who scold and chide them, as though they ought to be insensible to the tortures which they make them endure: these ways of acting are too cruel; a surgeon must have humanity, and exhort those under his hands to patience: he must share their pain; which, though he cannot help putting them to, he must, at least, leave them the liberty of crying and complaining.”12 Pain’s sheer aversiveness has now become the primary fact about pain. Pain no longer circulates through the community as part of a divine political economy. Pain now belongs unequivocally to the sufferer. Because pain is an attack on the individual, the very thing that should not be, then to perceive another suffering in pain is to experience them as being attacked, destroyed, undone. To so see them is to see what should not be. We now cannot look on at another’s pain without suffering with them. Dionis again: “We separate from [surgery] whatever is rough and barbarous, we retrench those burning irons and horrible instruments, which not only the patients, but the bystanders, could not see without trembling.”13 We tremble at the instruments that will cause the patient pain; in trembling we identify with the sufferer. Hume will use this very example of trembling at surgical instruments that will pain the patient in his account of sympathy.

Pain thus undergoes a double movement: on the one hand, pain becomes more emphatically and unconditionally what happens to the body of the sufferer; pain is possessed by the sufferer, belonging solely to him or her undergoing it. Pain individualizes and isolates; my body is mine in being the locus of my pains, pains that if not alleviated are my destruction. The self now draws in, becoming at one with the bounded body, the body that can be harmed and suffer pains. On the other hand, precisely because pain now portends the destruction of an individual without any broader significance, without any redeeming features, then pain becomes communicable in a new way: to see the other as another like oneself is to see that their sufferings should not be. The pain of others now calls for identification; the pained bodies of others call for sympathy and pity. Suddenly, to be unmoved by the pain of another would itself be a sign of immorality, of not knowing or understanding what being human was.14

In the course of the eighteenth century, bodily pains became no longer exchangeable, no longer part of a divine economy in which they might serve as payment or acknowledgment or communal resource. When each pain and each suffering is interpreted as impiety or punishment, as debt owed or sacred abandonment—“My God, my God, O why hast thou forsaken me?”—the body and pains of each cannot be fully her own, not irreducibly her flourishing or foundering, but are signs of innocence or guilt, purity or pollution, of being divinely loved or despised. All that eventually disappears with, let us say, the rise of modern individualism, with the modern thought that pains, whether accidentally incurred or intentionally produced, are properly suffered solely by the bodily being in which they take place, and they matter because they are a (sign of) harm to that bodily being. From hence forward, in my body being intentionally harmed by another, I am harmed in my very standing as a self or subject or person; with this is introduced the very idea of moral injury. The idea of moral injury so understood represents the utter secularization of the moral.

If moral injury is an acceptable way of recording the new contouring of body and pain, then we might say something like the notion of moral injury must have been experientially operative in the changed understanding of torture: from communal celebration to attack on the very underpinning of our being a community at all. This is not to claim that it was moral arguments that were essential to the abolition of torture; John H. Langbein and Foucault are right that those arguments occur at the conclusion of what was in reality an extended process (indeed far more extended than Foucault’s ideal type presentation makes apparent). The claim is rather that the transfigured character of body and pain gave to suffering a new social meaning; if the words of the surgeons are an accurate capturing of what was occurring, then we must say that seeing others in pain became an intrinsically moral experience, perhaps for us moderns the paradigm of a moral experience. By “moral experience” is meant simply the thought that others being in pain was no longer viewed from a distance as what is fated or ordained or deserved; a sympathetic response to the pain and suffering of others, all others, even strangers, was coming to be identified as a primitive moral fact demanding direct response in the present and preventive response toward a foreseeable future: “For supposing I saw a person perfectly unknown to me, who, while asleep in the fields, was in danger of being trod under foot by a horse,” Hume imagines, then “I shou’d immediately run to his assistance; and in this I shou’d be actuated by the same principle of sympathy, which makes me concern’d for the present sorrows of a stranger.”15 That sympathy should of a sudden become the fundament of a series of theories of morals—in Francis Hutcheson, Hume, Adam Smith, Rousseau, and later Schopenhauer—should in the first instance be considered as a component of a cultural transformation in which pain and suffering have been emphatically positioned in the body of the individual without further recourse. It is because the experience of others’ suffering left the symbol-laden precincts of law, politics, and religion, and became a primarily “natural” (physical, causal) phenomenon and, thereby, experientially a moral phenomenon that the debate about torture could become available to moral argument. Moral argument tracks the moralization of the experience of the body. I shall return to the philosophical tracking of moral experience below.

What finally made the abolition of torture necessary, to the extent it retrospectively seemed so, is that the political-legal-theological regime in which its practice was embedded lost its authority, the torture spectacle becoming a force for political disintegration rather than integration. An essential feature of this collapse, I am arguing, is a transformed understanding of the social location of the human body and its pains, the latter adhering to the former in...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Part I: History, Phenomenology, and Moral Analysis
• Part II: Constructing Moral Dignity
• Concluding Remarks On Moral Alienation
• Notes
• Index