Lisa Silverman, Tortured Subjects.- Pain, Truth, and the Body in Early Modern France. Chicago: University of Chicago Press, 2001. Pp. xv, 264. $42 (cloth), $20 (paperback).
Is there a "right" to be free from torture? Sadly, this question is not quite so distant from, or hypothetical for, American judges and legal scholars as it once seemed. Alan Dershowitz, to name only the most prominent example, has recently taken to arguing the somewhat tendentious case that torture can and should be used to save us from the threat of terrorists armed with weapons of mass destruction. We can only hope that this argument will continue to tell us more about our eminently justifiable need to express anger and frustration at the events of September 11, 2001 and their aftermath than it provides us in the way of a practical and effective policy solution to the problem of terrorism. As Richard Posner has recently pointed out, the case for torture is tendentious in the sense that "if the stakes are high enough, torture is permissible. No one who doubts that this is the case should be in a position of responsibility." Posner gives the example of a terrorist in possession of information that could be used to prevent the explosion of a nuclear bomb in Times Square. One need not be an afficionado of Manhattan to believe that the Eighth Amendment to the Constitution, prohibiting the imposition of "cruel and unusual punishments," neither would nor should stand in the way of the NYPD's or FBI's use of torture in such circumstances.
To mention the Eighth Amendment, however, is to raise a question that is at the heart of Lisa Silverman's fascinating and imaginative recovery of early modern French thought about the problem of torture (la question in French): Since when has torture been thought of as any kind of "punishment" at all, cruel and unusual or otherwise, in the world of the law? That torture has always been a relatively "unusual" practice is clear. It goes without saying that this infrequency should do nothing to acquit history's torturers from their political and moral culpability. Even at the height of its usage under the Bourbon monarchs of sixteenth- and early seventeenth-century France, Silverman shows, torture was actually administered only rarely. That torture has been thought "cruel" is a much more historically contingent matter. Though Silverman cites an intriguing bit of evidence from as early as 1620 that French magistrates felt pangs of conscience in ordering the use of torture over less painful alternatives such as service in the royal galleys, it was not until the Enlightenment of the mid-to-late eighteenth century that torture and cruelty became synonymous. The equation of torture with sadism and inhumanity was a decidedly non-judicial--indeed even anti-judicial--product of the philosophes and their more general assault on the politics of despotism in prerevolutionary France.
"The Question of La Ouestion,"
Yale Journal of Law & the Humanities: Vol. 15
, Article 6.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol15/iss1/6