I’m sorry, but this post can hardly avoid being political!
The degree of cruelty and sheer nastiness that one finds in seventeenth-century discourse is connected, in part, with the extent to which pain was publicly inflicted. Whole families might gather to enjoy the spectacle of a bear being tormented by dogs, a public flogging, or the disembowelment and hanging of a criminal. The idea that humans (if not animals) have a right not to be subjected to certain forms of treatment finds rudimentary expression in seventeenth-century England’s 1689 Bill of Rights (1689), which first uses the expression ‘cruel and unusual punishment’.
However, the purpose of the 1689 Bill was not to prohibit specific types of punishment, and the expression ‘cruel and unusual’ in this context ‘seems to have meant a severe punishment unauthorized by statute and not within the jurisdiction of the court to impose’ (Anthony Granucci, ‘“Nor Cruel and Unusual Punishments Inflicted”: The Original Meaning’, California Law Review, 57.4 (1969): 855–9; p. 859.). In other words, state-inflicted cruelty was defined as a result of authority exceeding its mandate (which might – and did – include whipping and other forms of physical torture), rather than what we understand by that expression today.
Sheldon Richman expresses the modern view when he says, ‘The fundamental case against torture…is…that it is immoral’ (The State of Torture in America). Just as people have a right not to be subjected to certain kinds of treatment, so governments and their agents have a duty not to implement such treatment or allow it to be implemented. Nevertheless, the Findings and Recommendations of the Constitution Project‘s Task Force on Detainee Treatment devote considerable space to the question of whether the American government acted in contravention of its own constitution, which takes us right back to the concept of cruel and unusual as it existed in 1689, as well as exploring the issue of whether – as is claimed – any significant information was obtained by the use of torture on suspected terrorists.
The Task Force’s answer in the first case is, yes; the American government sanctioned behaviour that was ‘directly counter to values of the Constitution’, and in the second case, no; ‘There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value.’ On the contrary, ‘There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable’ (Findings and Recommendations).
These two points may help to reinforce the basic one – that torture is immoral – but they should not be allowed to obscure it; the point is not whether the constitution can be twisted in such a way as to allow for the mistreatment of prisoners, nor whether such mistreatment may have led to the uncovering of useful intelligence. The point is that torture is wrong. The seventeenth century fascinates me, but we’ve left it behind, and I, for one, have no wish to bring it back!