tag:blogger.com,1999:blog-6789188.post8251872256709245506..comments2024-03-27T17:15:37.606-04:00Comments on Triablogue: "Torture"—a liberal Jewish perspectiveRyanhttp://www.blogger.com/profile/17809283662428917799noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-6789188.post-74708064348077885882007-11-18T10:12:00.000-05:002007-11-18T10:12:00.000-05:00You have a problem following the argument. I didn'...<I>You have a problem following the argument. I didn't refer to textual changes.</I><BR/><BR/>And you have a problem writing properly, since the construction of your sentence was unclear. Regardless, perhaps you should engage with the substantive point I was making, which is that the law is on the side of those against torture regardless.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6789188.post-24495192599675402852007-11-18T10:11:00.000-05:002007-11-18T10:11:00.000-05:00To continue with Posner, here’s an example of mode...To continue with Posner, here’s an example of modern jurisprudence in action:<BR/><BR/>The knowledge of concrete circumstances emphasized by pragmatists, Posner stresses, is critical when it comes to understanding the Constitution and the rights to which it gives rise. Constitutional rights, he argues, are not specified by the text of the Constitution, nor are they derivable from it by a single governing principle or a unique scientific or logical method. Rather, constitutional rights are created by justices interpreting the Constitution with a view to the moral and political consequences of their rulings.<BR/>Take the First Amendment. To be sure, it provides rights to freedom of speech, religion, press, and association. But it is the Supreme Court, over the centuries, that has determined the shape and scope of these rights…in hard cases, where traditional legal materials--constitutional text, history, structure, and the holdings of previous cases--fail to yield a single lawful answer, justices ought to craft legal rules that serve the nation's moral and political requirements.<BR/><BR/>Because the Supreme Court's legal conclusions about constitutional rights are, and ought to be, "heavily influenced by contemporary needs and conditions," they involve, in the final analysis, substantial policy judgments that result in the making of new law.<BR/><BR/>Of course, different justices will attach different weights to liberty and security, and come to different conclusions about the impact of specific measures on liberty and security. Posner does not deny or fear these difficulties. The purpose of his balancing test is not to eliminate but to refine the role of judgment in constitutional adjudication. It follows that, at the margins, constitutional rights will and should vary with the threat that the nation faces.<BR/><BR/>Consider his treatment of the detention and interrogation of enemy combatants. To determine the minimum protections, under the Constitution, to which terrorists are entitled, it is necessary to classify terrorists correctly. Because they are making war on the United States by threatening the nation's political sovereignty and territorial integrity, they are not criminals, and therefore they are not entitled to the procedural protections that the Constitution provides those accused of criminal wrongdoing.<BR/><BR/>However, because they violate the laws of war by fighting without a regular command structure, without uniforms, without carrying their weapons openly, and by targeting civilians, terrorists are not entitled to the procedural protections that cover prisoners of war, or lawful enemy combatants, under international law.<BR/><BR/>http://www.weeklystandard.com/Content/Public/Articles/000/000/012/667vwptz.asp?pg=2<BR/><BR/>Now, I, as a conservative, happen to disagree with Posner’s judicial philosophy. But, unfortunately, he is describing mainstream jurisprudence.<BR/><BR/>I agree with him that documents like the Constitution and the Geneva Accords are phrased in generic, timebound terms which do not anticipate or specify every future application.<BR/><BR/>Unlike him, I believe it’s the role of the legislative branch rather than the judicial branch to fill in the blanks.stevehttps://www.blogger.com/profile/16547070544928321788noreply@blogger.comtag:blogger.com,1999:blog-6789188.post-14145221917891195052007-11-18T09:54:00.000-05:002007-11-18T09:54:00.000-05:00merkur said:"Have you ever tried to get changes ma...merkur said:<BR/><BR/>"Have you ever tried to get changes made to an international convention? Trust me, it doesn't change from one year to the next; in fact, it's exceedingly uncommon for the wording of such a document to change in any way."<BR/><BR/>You have a problem following the argument. I didn't refer to textual changes. This is not about amending the wording a legal text. Rather, this is about the interpretation of a legal text.stevehttps://www.blogger.com/profile/16547070544928321788noreply@blogger.comtag:blogger.com,1999:blog-6789188.post-27415811371930655542007-11-18T09:49:00.000-05:002007-11-18T09:49:00.000-05:00boooooooooorrrriinnnngboooooooooorrrriinnnngAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-6789188.post-45711448339195172082007-11-18T09:27:00.000-05:002007-11-18T09:27:00.000-05:00You saidthe assumption is often made that opponent...You said<BR/><BR/><I>the assumption is often made that opponents of “torture” have the law on their side.</I><BR/><BR/>I pointed out that this is not an assumption; the law is on their side.<BR/><BR/>You now respond that the law has "no fixed meaning". This is completely irrelevant; the law is still on their side.<BR/><BR/><I>It means whatever the judiciary creatively imputes to the text—which can change from one year to the next.</I><BR/><BR/>Have you ever tried to get changes made to an international convention? Trust me, it doesn't change from one year to the next; in fact, it's exceedingly uncommon for the wording of such a document to change in any way.<BR/><BR/>So once again, this isn't really very relevant, unless you were discussing an alternative globally agreed definition of torture.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6789188.post-57908286140828178882007-11-18T09:13:00.000-05:002007-11-18T09:13:00.000-05:00"It's amusing that you think that Dershowitz and P..."It's amusing that you think that Dershowitz and Posner are "center-left" - in most parts of the world, they'd be considered firmly on the right."<BR/><BR/>You may think their *conclusions* are (sometimes) conservative, but their methodology isn't fundamentally different from Larry Tribe's.stevehttps://www.blogger.com/profile/16547070544928321788noreply@blogger.comtag:blogger.com,1999:blog-6789188.post-47317692056086222242007-11-18T08:59:00.000-05:002007-11-18T08:59:00.000-05:00STEVE SAID:Yes, it really is an assumption. In mod...STEVE SAID:<BR/><BR/>Yes, it really is an assumption. In modern jurisprudence, a legal text has no fixed meaning. It means whatever the judiciary creatively imputes to the text—which can change from one year to the next. In modern jurisprudence, human rights and civil rights and other rights are ultimately a judicial artifact.stevehttps://www.blogger.com/profile/16547070544928321788noreply@blogger.comtag:blogger.com,1999:blog-6789188.post-17507001352340806412007-11-18T07:37:00.000-05:002007-11-18T07:37:00.000-05:00"the assumption is often made that opponents of “t..."the assumption is often made that opponents of “torture” have the law on their side."<BR/><BR/>It's not really an assumption though, is it? More of a statement of fact, unless you think that the US has withdrawn its ratification of the Convention Against Torture, and has subsequently removed all prohibitions against torture from lower-level jurisdictions.<BR/><BR/>Needless to say, Dershowitz' arguments are largely nonsensical - although I would say that, I'm one of those crazy "doctrinaire civil libertarians". It's amusing that you think that Dershowitz and Posner are "center-left" - in most parts of the world, they'd be considered firmly on the right.Anonymousnoreply@blogger.com