Liberal Faith: Essays in Honor of Philip Quinn

7. Torture, Justification, and Human Rights: Toward an Absolute Proscription

176 Seven Torture, Justification, and Human Rights Toward an Absolute Proscription Sumner B. Twiss I recently published an article entitled “History, Human Rights, and Globalization” that attempted to gauge changes since 1948—attributable in part to globalization processes—in the content of human rights, the major abusers and guarantors of human rights, and the justification of human rights.1 It is the last measure—justification—that is revisited in this essay, prompted both by certain probative criticisms of a close colleague and human rights advocate, David Little, and by a recent reading of a 1996 essay by Philip Quinn, “Relativism about Torture: Religious and Secular Responses,” which is dedicated to Amnesty International and its supporters.2 Given the ongoing revelations about the mistreatment of prisoners in Afghanistan, Guantanamo Bay, and Iraq (not to mention the U.S. renditions of detainees to other torture-prone jurisdictions), the convergence of Quinn’s topic and mine appears WeithProof.indb 176 WeithProof.indb 176 6/30/08 11:53:19 AM 6/30/08 11:53:19 AM Torture, Justification, and Human Rights 177 quite timely. In what follows I want to read his arguments about proscribing all torture in light of my typology of alternative forms of human rights justification and then highlight one United Nations approach to justifying in particular an absolute prohibition of torture (or alternatively the cogency of a nonderogative right not to be tortured) that both he and I overlooked or at least downplayed.3 Background In my 2004 article, I argued that the Third Committee, which drafted and debated the Universal Declaration of Human Rights (UDHR) before sending it to the General Assembly for ratification in December 1948, reached a pragmatic consensus on a set of essential human rights norms protective of human dignity and welfare that was deemed sufficient unto itself without the use of contestable metaphysical or theoretical language or appeals. The article also pointed out that the view of Jacques Maritain about emphasizing these practical norms apart from justification and theory was explicitly cited during the Third Committee debate. This view was propounded by Maritain in his introduction to a concurrent 1948 UNESCO symposium on the philosophical bases of human rights: “[B]ecause . . . the goal . . . is a practical goal, agreement between minds can be reached spontaneously, not on the basis of common speculative ideas, but on common practical ideas, not on the affirmation of one and the same conception of the world, of man and of knowledge, but upon the affirmation of a single body of beliefs for guidance in action.”4 The position apparently taken by the Third Committee, then, laid the groundwork for one common understanding in the international human rights community that the pragmatic consensus on human rights is a largely self-sufficient compact among nations that needs no further justification, philosophical or otherwise. Only the practical normative consensus and compact count; anything more is deemed superfluous. The Third Committee’s position will be returned to (and revised) later in this essay. The article went on to argue that globalization processes have so facilitated cross-cultural contact, awareness, and exchanges about worldviews, moral, political, and religious systems, and diverse patterns of reasoning and justification throughout the world that the WeithProof.indb 177 WeithProof.indb 177 6/30/08 11:53:19 AM 6/30/08 11:53:19 AM 178 Sumner B. Twiss human rights community has been compelled to acknowledge that human rights norms and their recognition are culturally embedded, interpreted , and justified in diverse ways. This acknowledgment, in turn, has led to the emergence of alternative efforts to justify human rights in the international arena, three of which appear particularly influential. The first is a continuation of the view that the pragmatic international consensus on human rights is largely self-sufficient (and now legally binding), needing no further justification but now buttressed by metareasons (for want of a better term) for accepting its self-sufficiency: for example, the invocation of skepticism about comprehensive schemes, frameworks, or doctrines of any sort that claim to provide grounds for human rights norms by appealing to essentialist understandings of human nature or human moral capacity. Such understandings are regarded as no more than quasi-mythical creations of outmoded currents of thought driven by unwarranted anxieties over the possible nihilistic and/or relativistic implications...