Torture : J.M. Bernstein

Ivana Bašić / Without a Body
Ivana Bašić / Without a Body

Torture : J.M. Bernstein

Definition one:

“For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
—UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1

Definition two: 

“Torture . . . must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture . . . it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”
—Jay S. Bybee in Memorandum for Alberto R. Gonazales, Counsel to the President (Aug 1, 2002)

“The fact is, on February 7, 2002, the United States backed out of its civilization agreement with the rest of the world. The memo George W. Bush signed that day was carefully worded to ensure that only ‘unlawful combatants’ . . . would be denied the rights bestowed by the Geneva Conventions.”1 Definitions matter. A few words can make the difference between acting in solidarity with the civilization agreement constituting the moral and legal infrastructure of modernity, or rendering it void. We have learned, painfully and at great cost, that sedimented in the definition of torture is an outline of our ethical universe.

Yet, getting definitions right is inordinately difficult. Among other flaws, the UN Convention does not mention non-state actors or forms of torture motivated by sadism. Assuming that the purpose of interrogational torture is to attain information through breaking the will of the prisoner, Assistant Attorney General’s Bybee’s definition of torture takes the “severe pain” criterion of the UN Convention and ratchets it up to a point at which it becomes virtually non-applicable. In the case of mental suffering, Bybee requires that only long-term mental suffering count, making the determining of an act of “torture” something that can occur only at a time well after the event itself, hence, again, making the UN Convention idle for the purpose of regulating the treatment of prisoners. Bybee’s detailed, thoroughly researched, and perverse memorandum is exemplary of how even robust definitions whose overall purpose is clear and distinct can be twisted and distorted to the point where their original meaning and intention is completely subverted. In the case of torture, the stakes are particularly high since the prohibition on torture forms a pivot in the restriction of state power and the installation of a fundamental individual right. Nonetheless, Bybee’s obfuscations and boundary-shifting should remind us that the search for a precise definition of a phenomenon like torture can too easily be perverted by those seeking definitional loopholes. Precise legal or legalistic definitions will always possess a penumbra of indeterminacy sufficient for the production of escape hatches, excuses, extenuating circumstances, and the like. In the case of torture, certainly, understanding the spirit of the definition proposed in its prohibition must outweigh the letter of such a definition.

My hypothesis is that moral modernity, or, what is the same, the moral foundation of political modernity, is perspicuously realized and articulated in the series of acts whereby, throughout Europe, torture was banned. Torture became, and sotto voce remains, the paradigm of moral injury, of what must never be done to an individual because it is intrinsically degrading and devaluing: it harms the human status as such by intentionally harming the present exemplification of it. Even when torture is regarded—however mistakenly—as morally justified, it remains violation and degradation. Remove the prohibition on torture and neither the liberal state nor modern moral life is intelligible. I shall first track this claim historically and then, more elaborately, phenomenologically, or, more precisely, through what I call “philosophical ethnography.” I take the philosophical ethnography of torture to be the reactivation of its now lost historical origin—lost not to memory, but to historically effective consciousness. The philosophical ethnography of torture is the sole means through which the phenomenon can be defined, that is, provided with a statement of its meaning that might become actual and meaningful.


Frederick the Great of Prussia abolished judicial torture in 1754, with Sweden following suit in 1772, and Austria and Bohemia banning it in 1776. In 1783 Britain eliminated the pre-execution spectacle, and, by adopting the drop method, made hanging quick and efficient. The French revolutionary government banned all forms of judicial torture in 1789 and continued down the path of efficiency and painlessness with the introduction of the guillotine in 1792.2 Running parallel to these events is the reception of Cesare Beccaria’s On Crimes and Punishments, first published in 1764, with its short but fierce arguments against “the barbarous tortures that have been elaborated with prodigal and useless severity, to punish crimes either unproven or illusory.”3 This work went through 28 Italian editions and 9 French ones before 1800; it was translated into English in 1767, with multiple editions in both Britain and the United States, and was early on translated into Dutch, Polish, and Spanish.

The acts banning torture throughout Europe together with the reception of Beccaria’s book expressing the force of moral modernity are, however, only the moral and legal reflection of a deeper ethical reality, namely, the gradual but emphatic emergence of the individual body as morally inviolable, entailing the individualistic and wholly secular view that pains belong “only to the sufferer in the here-and-now.”4 Only when pains are finally understood as “my pains” does the body become inviolable and the person sacred—or, to keep to secular language, an end in itself, a being with dignity (dignity as the secular version of the sacred). I understand the constellation of those three claims—the pains of the body are ‘mine’, requiring a certain moral inviolability of the body, which then becomes framed in terms of the dignity of the self—as constitutive of moral modernity; without them nothing of the moral and political world we inhabit is intelligible. These three claims are subtended by a fourth: the dignity that is thought to be constitutive of the worth of the modern self, to be the marker for its intrinsic value, is not a metaphysical property of the self—a consequence, say, of the possession of a rational will—but a status that is achieved and bestowed through social practices. Persons possess dignity if and only if they are, in a socially sustained way, recognized as having the kind of worth denoted by the notion of dignity. One path in grasping this process would recall that the pattern of connecting dignity with inviolability has Greek origins, but was installed in a recognizable way in the late Middle Ages by Italian city-states, republics, and principalities. “Republics,” Darius Rejali reminds us, “carefully limited torture to non-citizens and slaves. Citizens had dignity and were thus inviolable, at least normally.”5 In this setting, dignity is a civil status; one might thus say that modernity involves the universalizing of that civil status position—which is effectively what the efforts of the modern rule of law and human rights discourse amount to.6

In telling the narrative of the development of dignity from civil status to marker of the intrinsic value or worth of the individual, the elaboration of the ‘mine-ness’ of the body and its pains is central. If my body is not mine in this robust sense, then nothing is mine. The growing and sustained recognition of individual bodily integrity and inviolability are the experiential foundation of modern ethical life. The ban on torture is both the political and legal fulfillment, the recognition of that new moral and civil status, and thereby, at the same time, the societal self-consciousness of this transformed ethical actuality. Because dignity is constituted from without, because dignity is a consequence of patterns of recognition both intimate and public, then without the prohibition on torture, the ethical transfiguration of body and pain would be as nothing. The ethical transfiguration of body and pain provides the historical, material foundation for modern theories of the disembodied, purely rational will central to modern moral philosophy. On my reading, modern moral and political philosophy in their espousal and reification of the rational will as what gives an individual his moral status, his claim to dignity, also repress, repudiate, and reflectively bury their own quite specific historical, social, and material conditions of possibility.

The history of this moment is told thrillingly by Lynn Hunt in her Inventing Human Rights: A History. Very briefly highlighting some of the central moments in this history will help us understand why its reactivation must go beyond history, logic and empirical verification, and embrace a descriptive-experiential dimension, which is to say, why the meaning of moral modernity cannot be written as either a history or a logic of pain, but must become instead be written through the philosophical ethnography of torture.

Hunt argues that moral modernity converges with the project of the modern novel as it arose in the hands of Richardson and Rousseau, where the overriding ambition was to infuse daily life with a kind of density and emotional intensity that would enable it to become a “substitute for religious experience” (IHR, 58). At stake in the debates about the novel in the eighteenth century “was nothing less than the valorization of ordinary life as the foundation for morality” (IHR, 57). In pressing the case for ordinary life as the replacement for religion, I understand the thought to be that secular modernity requires that ordinary life come to have the compellingness, the depth, and the affective charge that religion once held (where at least a partial vindication for this thesis can be derived from its converse: where there is religion now, the experiential axioms of secular morality wither). For an example of empathic identification generating what amounts to a moral conversion, consider how, in his response to reading Samuel Richardson’s Clarissa, Diderot is struck by how the structure of his sentiments and his capacities for responsiveness have been realigned: “One feels oneself drawn to the good with an impetuosity one does not recognize. When faced with injustice you experience a disgust you do not know how to explain to yourself” (“Eloge de Richardson,” quoted in IHR, 56). The novel presents the ordinary and the ordinarily opaque other—a woman, say—as suddenly appearing as both psychologically complex and as wrenchingly injurable as oneself. In empathy you wince and shudder. Diderot’s impetuousattachment to the good and disgust at villainy and moral violation signify an emergent moral universalism achieved primarily in structures of perception and sentiment.

Our life together depends upon there being feelings of indignation and disgust in the face of perceived injustice, otherwise all we would have is, to borrow a phrasing, morality in the head. As Hunt plausibly contends, the very existence of human rights depends as much on emotions as on reason: “The claim to self-evidence relies ultimately on an emotional appeal: it is convincing if it strikes a chord within each person. Moreover, we are most certain that a human right is at issue when we feel horrified by its violation” (IHR, 26).

The transgression we moderns feel most horrified by is the violation of the individual body. After a long period of incubation—involving an “ever-rising threshold of shame about bodily functions, and the growing of bodily decorum (people sleeping in beds alone or with a spouse only, using utensils for eating, keeping bodily excretions private, etc.)” (IHR, 30)—the idea of bodily separateness slowly emerges: your body is yours and my body is mine. This reverses pre- and early modern experience in a way familiar from Foucault’s Discipline and Punish. Here is Hunt on this moment: “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 . . . the offender served as a kind of sacrificial victim whose suffering would restore wholeness to the community and to the state . . . Because punishment was a sacrificial rite, festivity inevitably accompanied and sometimes overshadowed the fear [that these practices naturally inspired]. Public executions brought thousands of people together to celebrate the community’s recovery from the crime’s injury” (IHR, 94).

Moral modernity—with its ideas of individual rights and the dignity of the individual—only properly comes into focus when, rather than an occasion of festivity and communal joy, the perception of bodily violation becomes horrifying and repugnant. In order for this to be the case “pain and the body itself” had to become regarded as (morally) belonging solely to the individual, rather than the community, and hence could no longer be sacrificed to the community. As Hunt pointedly states the thesis, “In the new view . . . 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” (IHR, 98). Was not Abu Ghraib an assault on society? The beheading of Daniel Pearl an occasion of indignation and outrage? Of course, in all times and places, as a matter of survival, pains have in some sense ‘belonged’ to the body in which they occurred. What changes with modernity is that these bodily pains are no longer exchangeable, no longer part of a divine economy in which they might serve as payment or acknowledgment or communal resource; where 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?”—then the body and pains of each are not her own, not irreducibly her flourishing or foundering, but signs of innocence or guilt, purity or pollution, of being divinely loved or despised.7 All that eventually disappears with modern individualism, with the utterly 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 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 represents the utter secularization of the moral. Torture is the paradigm of moral injury since there the state claims the body of the victim as rightfully, morally and legally, its own.

Philosophical Ethnography

After stating that “All human beings are born free and equal in dignity and rights” (Article 1), and that “Everyone has the right to life, liberty and security of person” (Article 3), the Universal Declaration of Human Rights goes on to spell out the minimum necessary conditions entailed by these two affirmative provisions, namely, that “No one shall be held in slavery or servitude” (Article 4) and “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). There then follow a series of articles that quickly gather together the upshot of all this, summarized pointedly in Article 6: “Everyone has the right to recognition everywhere as a person before the law.” I assume there is a deep if rough logic, a philosophical argument of sorts, running through the opening articles of the Universal Declaration that recapitulates in a formal mode the experiential exigencies of the emergence of rights in the 18thcentury. Roughly, we spell out the dignity of the human through the moral intolerableness of slavery and torture, the joint banning of which is the basis for, if not equivalent to, the rule of law coming to replace the rule of one man over another. The rule of law, so understood, is what we mean by recognizing the intrinsic worth of each—this is what Beccaria was aiming at in his little treatise. Although I cannot defend the claim here, I take it that broken laws stand for broken bodies, that law in its modern founding moment is the inscription of the body in or as its integrity.8 It is difficult to resist the thought that bodily integrity is the first law, the lawfulness of law, that through which the very idea of what-must-not-be becomes manifest; and conversely, that the rule of law means that form of regulating human affairs without brutality, and hence in ways that respect bodily integrity as the site of human dignity. An eloquent statement of this idea can be found in a recent article by Jeremy Waldron. I want to quote the relevant passage in full:

The prohibition on torture is expressive of an important underlying policy of the law, which we might try to capture in the following way: Law is not brutal in its operations. Law is not savage. Law does not rule through abject fear and terror, or by breaking the will of those whom it confronts. If law is forceful or coercive, it gets its way by nonbrutal methods which respect rather than mutilate the dignity and agency of those who are its subjects. The idea is that even where law has to operate forcefully, there will not be the connection that has existed in other times or places between law and brutality. People . . . may even on occasion be forced by legal means or legally empowered officials to do things or go places against their will. But even when this happens, they will not be herded like cattle or broken like horses; they will not be beaten like dumb animals or treated as bodies to be manipulated. Instead, there will be an enduring connection between the spirit of law and respect for human dignity—respect for human dignity even in extremis, where law is at its most forceful and its subjects at their most vulnerable.9

On my reading, the Universal Declaration’s prohibitions on slavery, torture, and cruel punishments are what the enunciation of the rule of law come to, which is precisely what Waldron is here claiming about the modern idea of law. For us moderns, the fundamental underpinning of there being moral norms and legal authority at all begins with the recognition of bodily integrity as the moral underpinning of human dignity. (“Tort” and “torture,” I should remind you, have the same Latin root.) The material a priori of modern morality turns on the installation of bodily autonomy, on making bodily integrity inviolable.

Waldron was moved to elaborate this thesis because, most immediately, the policies of the Bush administration presented not merely a factual rejection, but an effort at a rational and de jurerejection of the moral incommensurability between law and brutality. That mode of rejection is not, and was not new. However progressively thorough was the eighteenth century prohibition on judicial torture, leading the 1911 Encyclopedia Britannica to claim that the whole subject of torture was “now one of only historical interest as far as Europe is concerned,”10 throughout the course of the twentieth century the practice of interrogational and terroristic torture emerged as recurrent and emphatic mechanisms of state security at home and abroad in Europe and North America.11 Torture’s disappearance as a judicial practice and reappearance as an engine of state security demonstrates that the great moral consensus that seemed to be emerging in the eighteenth and nineteenth century has failed to hold, failed to have the force of obviousness sufficient to make transgressions of its simplest axioms unthinkable by rational agents. That we might now need to have an argument about state sanctioned torture is already the demonstration of a fundamental disorder in our moral universe; we no longer know what our moral words mean because the ground experiences funding those words have evaporated from their usage.

What I thus want to urge here is that if human rights depend on their violation being met with feelings of disgust and abhorrence, and that abhorrence interpreted as the destruction of human dignity, of tearing at the fabric of human status in a manner that is harmful to that status as such, the meaning of its being for everyone, then what is wanted now is neither a history of the banning of torture nor the history of how moral universalism emerged in practice—the discontinuous, progressive-regressive history of the dropping of age, sex, religious, and racial restrictions on who might count as fully or unconditionally human.12 Those histories are both desperately important and yet strangely moot, their lessons proving not fully inheritable. Hence, if those histories are to matter in the appropriate way, which is to say, matter as themselves bearing the burden of acknowledging the affective force of their normative content, then only a reactivation of the historical origin can be sufficient. But the reactivation of an origin here does not mean the reactivation of an historical episode, but rather a reconnecting of moral concepts to moral experience. Therefore, a philosophical defense of the prohibition of torture, which is to say, a defense of the very idea of moral modernity, must first occur as a philosophical ethnography of torture. In miniature, this is the project of Jean Améry’s At the Mind’s Limits: Contemplations by a Survivor on Auschwitz and its Realities,13 where the pivotal chapter, “Torture,” provides the most devastating and reflectively acute account of torture of which I am aware.14 In this accounting, the emphatic moral mine-ness of my body emerges through the reflective-descriptive limning of its most thorough violation.

Pain is an attack on the body, the sensational experience of negation, a feeling of something being against one. At least part of the awfulness of pain derives from it being an experience that occurs within one’s own body whilst nonetheless being felt as something utterly against and outside it. Pain is, by nature, a form of harm; that harm becomes a moral harm when an other intentionally causes bodily pain without the consent and against the wishes of the individual whose pain it is. Améry was hung from an iron hook by his hands, which were shackled together behind his back.15 It is a position he could not hold for very long: “And now there was a cracking and splintering in my shoulders that my body has not forgotten until this hour. The balls spring from their sockets. My own body weight caused luxation; I fell into a void and now hung by my dislocated arms, which had been torn high from behind and were now twisted above my head. Torture, from the Latin torquere, to twist. What visual instruction in etymology. At the same time, the blows from the horsewhip showered down on my body, and some of them sliced clean through the light summer trousers that I was wearing on this twenty-third of July 1943” (AML, 32-3). The crackling and splintering of his shoulders, the balls springing from their sockets, each twists Améry’s body to a point of perfect adversity. But this against-ness is objectified by the torturer, who apparently wants nothing from him but his pain. So the other here is not just an enemy but the personification of aversiveness. In torture, all constructive social arrangements lapse. There are no rules regulating your relation with the torturer; you cannot opt for any rules of interaction “when it is the other one who knocks out the tooth, sinks the eye into a swollen mass, and you yourself suffer on your body the counter-man that your fellow man became” (AML, 28). The image of the torturer as “counter-man” or “anti-man” begins capturing how pain as aversiveness, the physical experience of negation, comes to be embodied and actualized by the torturer, how the torturer stands for the aversiveness he causes in the body of victim.

Pain operates so that we become the body we already are: “Whoever is overcome by pain through torture experiences his body as never before. In self-negation, his flesh becomes total reality . . . Only in torture does the transformation of the person into flesh become complete. Frail in the face of violence, yelling out in pain, awaiting no help, capable of no resistance the tortured person is only a body, and nothing else beside that” (AML, 33). Torture, I shall want to say, is fulfilled or most completely realized when it can reduce the victim to his body. Because of the relative character of our control over our bodies, we are naturally tempted by the Cartesian locution that humans have bodies, but are not identical with their bodies. Extreme pain, like some other limit conditions—most notably, laughing and crying—requires the identification of the person with her out of control, involuntary body. When I cry in grief, although overwhelmed, convulsed in sobbing, in a state of bodily disorder, that bodily disorder is my fullest response to the grief being felt, it is my cognitive and affective acknowledgement of what has occurred. The experience of grief demonstrates that bodily disorder can be a means of self expressiveness, the action of my suffering self, and hence that the notion of the self cannot be reduced to the rational will or whatever mental or bodily states whose current orderliness is presumed to be a direct consequence of my agency, as if all suffering were antithetical to the very idea of being a self.16 Understood aright, pain reveals how we not only have bodies but are our bodies. The dual axes whereby we both have, and are, our bodies is constitutive of the specificity of human embodiment.17 The transformation of the person becomes complete in torture because the victim becomes the body he already is while it is the torturer who, effectively, has the victim’s body. All activity and voluntariness are in the hands of the torturer, while only passivity and suffering are left to the victim. In torture, the dual axes of individual bodily life, the having and being of a body, the body as voluntary and involuntary, become divided between torturer and victim: the torturer aspires to activity without exposure, while the victim is reduced to flesh; the torturer aspires to independence without the stigma of dependence while the victim is revealed, in his very being as a person, to be a wholly dependent being (dependence as the source of his independence).

What makes this diremption between the voluntary and involuntary body possible is the fact that, all too easily, pain totalizes, driving out all competing experiences; reality seems to congeal on the place of pain: toe, elbow, stomach, back, shoulders as arms are wrenched from their sockets. Torture aspires to this totality of pain; torture completes pain through being the social actuality of pain. Torture is the ritual and dramatic realization of pain’s power of negation because in torture the other appears only as a counter-man, appears as perfectly against the victim through being in possession of the victim’s body, and therefore in systematic and purposeful non-recognition of the sufferer’s humanity. Despite the fact that the counter-man does not recognize his human other as having human standing, as possessing moral inviolability, the nothingness of the victim is nonetheless the source of the anti-man’s reality. The master torturer depends on the tortured victim’s pain for his sense of being absolute.

Améry sees modern police torture and Nazi torture as an existential ritual through which the torturer seeks to establish “his own total sovereignty” by rendering an other for whom this setting “in an entirely specific sense, is ‘hell’ for him,” a nothing, but a nothing who can nonetheless testify to and be the sign of his authority (AML, 35). Being transformed into flesh, the victim is all but nothing; but a nothing that screams in testimony to the absolute reality, the absolute authorityof his torturer. This is a strange and fictitious exchange since the torturer makes purely spiritual capital out of the purely physical pain of his victim; the torturer’s ego or sense of self expanding, inflating as the victim is increasingly reduced to sheer body. Torture embodies one of the deepest of all human desires: to be sovereign and self-sufficient, to be a god rather than human.

Elaine Scarry gets this moment just right: “In the very processes [torture] uses to produce pain within the body of the prisoner, it bestows visibility on the structure and enormity of what is usually private and incommunicable, contained within the boundaries of the sufferer’s body. It then goes on to deny, to falsify, the reality of the very thing it has itself objectified by a perceptual shift which converts the vision of suffering into the wholly illusory but, to the torturers and the regime they represent, whole convincing spectacle of power. The physical pain is so incontestably real that it seems to confer its quality of ‘incontestable reality’ on that power that has brought it into being.”18 This fundamentally existential structure is at the core of all torture. There is to torture an existential dimension and existential satisfaction that necessarily trumps its other dimensions. Most torture is presumed to have an official end other than degradation: judicial torture is for the sake of obtaining a confession; interrogational torture is for the sake of acquiring information; penal torture is a form of punishment; terroristic or deterrent torture is for the sake of intimidating the sufferer or others close to the sufferer; and sadistic torture which is for the sake of the torturer’s delight in the victim’s pain as occasioned by the torturer. However, whatever its official purpose, and hence its official limit, torture must be, in principle, without limit in order for the internal anthropological logic that motivates the turn to torture to be realized. The torturer cannot trust the victim’s confession or information or submission if he believes some sliver of self-determining agency remains; only in the breaking of the victim is the sovereign structure of torture fulfilled; it is the sovereign structure of torture that, finally, gives torture its power and significance as a method of interrogation, terrorization, and punishment. Causing pain and inducing fear are stages in the body being turned against the agent whose body it is; that turning of the body against its possessor is accomplished when the torturer can have reason to believe all volition is his, and all reaction and suffering the victim’s. What it thus means for torture to be without limit is, precisely, that the torturer be recognized as sovereign, where the actuality of the torturer’s sovereignty is his becoming the possessor, the agent of the victim’s body, and the victim nothing but an involuntary body.

Underlying all the other forms of torture then is dehumanizing torture, which has the purpose of breaking the victim, the unconditional dispossession of his agency and power of bodily self-determination. This is the specificity of modern torture. Again, this is not to deny that the official purpose for using torture as a component of the apparatus of state security is, especially now, typically information gathering, and that information gathering can sometimes succeed without dehumanization. But then, interrogation specialists claim that information gathering is best achieved without the use of torture at all. Hence, the turn to torture in modern contexts, whatever the declared official purpose, and whatever the methods used—in this respect there is no difference between traditional torture methods and methods that leave no marks behind (stress positions, sleep deprivation, noise, etc.)—will inevitably token the installation of the sovereign structure since that structure is what the threat of torture is.19 Once the theological contract is removed as the frame for torture, as what unites torturer and victim, then the anthropological core of torture becomes visible: the dual axis structure of bodily being, having and being a body, and the possibility of an other having the body that the victim is.

With unflinching honesty, Améry confesses that there were moments when he felt a kind of “wretched admiration for the agonizing sovereignty” his torturers exercised over him: “For is not the one who can reduce a person so entirely to a body and whimpering prey of death a god, or at least, a demigod?” (AML, 36) This is a dreadful confession since it shows the victim completely surrendering his perspective upon the world to that of his master—and, again, not without reason since the torturer does, delicately or crudely, easily or awkwardly, with infinite finesse or impatient indifference, hold the life of the victim in his hands, the pain of the victim’s body to be played like a musical instrument, each note a hymn to the torturer’s mastery.

“Whoever was tortured, stays tortured. Torture is ineradicably burned into him”(AML, 34). This feeling—effectively the trauma of torture—is the germ of all Améry’s speculations; it is what he is trying to understand. And near the center of that understanding lies the notion of sovereignty, of the other as in possession of a sovereign power whose only meaning is his pain: “Amazed, the tortured person experienced that in this world there can be the other as absolute sovereign, and sovereignty revealed itself as the power to inflict suffering and to destroy” (AML, 39). The sovereign is he who believes (or acts as if he believed) that he can be absolutely autonomous and self-sufficient, that nothing about his being need essentially depend upon others; the more different others are, and the closer to him they appear, then the more they threaten his fantasy of independence.20 This is why Améry adopts Sartre’s locution that ‘hell is other people’; this is untrue as metaphysics, but becomes true in the Third Reich: the German cannot bear his dependence upon the Jew. Let’s call the systematic repudiation of dependency the “sovereignty structure.” My hunch is that the sovereignty structure is the essence of sexual and racial domination; it is why these forms of domination become rape, torture, slavery, and genocide. In each case, an otherwise threatened or fragile system of self-worth is translated into the illusory ideal of individual or collective self-sufficiency. The sovereign structure represents the attempt to resolve the dilemma of self-worth by negation.

Picking up a claim I made at the outset, it is important to note here that universalist moralities premised on the autonomy of the rational will are affirmative versions of the same logical strategy used in torture, isolating sources of independence from systematic sources of dependence: the body itself and the dependence of self-worth on the recognition of socially significant others. Arguably it is because reason- or will-based conceptions of moral universalism repudiate their material and social conditions of possibility, treating the body and others as at least threats to and at the extreme the ruin of the moral will, that these universalist moralities have consistently been found to have racist and sexist ideologies as their reverse side. The thought here is not only that racist and sexist ideologies arise and take on an especial virulence in opposition to moral universalism, as Hunt rightly argues (IHR, 186-200, 212), it is that having evacuated bodily self-realization and social dependencies from the content of what provides for human dignity, universalism has already despised and repudiated the very materials that racism and sexism exploit for the sake of restricting membership within the universal.21 Because rationalist, universalist moralities arise through the effort to exterminate bodily and social dependency, the extreme and particular violence of racist and sexist practices needs to be understood as the effort to realize in practice what universalism had already promised in theory, the extinguishing of the other in oneself: “To kill the Jew in oneself, one must kill all Jews.”22 Given the logic of this position, since the “Jew” is a dummy-term standing in for bodily and social others, for natural and social dependence, then it is capable of indefinite substitution; the history of those substitutions approximate to one dominant thread in the history of twentieth-century violence. The viciousness of racist and sexist ideologies stands in precise inverse proportion to the extreme intimacy and inexpugnability of their object (body and other).

Again, picking up the logic of the sovereign structure, sovereignty lives off the victim’s pain and suffering; the sovereign “boundlessly asserts” his existence through reducing the victim to nothing but pained flesh; and hence the certainty of the victim’s bodily pain is continuously transfigured into the other’s sovereign power. This is not the obliteration of the relation between self and other; such obliteration is routine in human affairs, and in these circumstances would be welcome. This is far worse, for here victim’s perpetual pain at the hands of the other, at his behest or through his rules, becomes the bond that keeps victim and torturer connected, self and other: a couple.23

The relation between torturer and victim is the most collapsed, eviscerated, static, destructive version of a logic binding self and other imaginable that nonetheless sustains a relation, keeps it in place, rather than becoming a sheer fury of destruction that would end the relation. This is a terrible scene of recognition and nonrecognition jammed together.24 If even torturer and victim are humanly intertwined, bound together, mutually dependent on one another, then each of us, in our standing as a person, is a second person, bound to and dependent on those others who bestow personhood on us, and can thus deprive us of it. If, that is, torture does represent the paradigm of moral harm in which the victim remains alive, and if further it turns out that torture is relational, not a mere negation of one person by another, but a distinct kind of human relation, a bond between self and other, then we are all dependent upon one another for our standing as human.

There is no one perspicuous way of elaborating the thesis that the standing of an individual is dependent on the recognition of significant social others. The account offered here makes two emphatic assumptions, both of which have been carefully limned by Judith Butler. First, “Recognition is neither an act that one performs nor is it literalized as the event in which we each “see” one another and are “seen.” It takes places through communication, primarily but not exclusively verbal, in which subjects are transformed by virtue of the communicative practice in which they are engaged.”25 Recognition and misrecognition are elements of social practices that adhere to or are expressed in those practices through the subject positions and roles those practices convey. Participation in a social practice occurs with or via the presumption of entitlement to so participate, and hence through the on-going practical affirmation of an individual as one who is entitled to participate in that practice. Typically then, assuming that every individual is the bearer of a diversity of social roles, recognition is mediated by socially legitimated role-bound rights and duties that specify what active membership in the on-going life of a particular human community comes to. Recognition is borne by rights to participation in social practices, and the particularities of the way in which those rights are realized. Both roles themselves and the rights to social participation they actualize are typically partial and unequally distributed; almost always, even the most thorough recognition is shadowed by misrecognition.26

Second, because recognition is both achieved, through an individual’s own doing, and bestowedthrough the social distribution of roles and subject positions on the one hand, and through an individual’s personal history in acquiring and enacting a role or subject position on the other, then the process of recognition involves a permanent loss of self, or, better, a permanent splitting of the self whereby some portion of the self is continually in the possession of or lodged in one or more social others. In Butler’s phrasing, “Hegel has given an ek-static notion of the self, one which is, of necessity, outside itself, not self-identical, differentiated from the start. It is the self over here who considers its reflection over there, but it is equally over there, reflected, and reflecting. Its ontology is precisely to be divided and spanned in irrecoverable ways.”27 Because our standing for ourselves is always mediated by the recognitions elaborated in social practices shared with others, then those others are in a position to dispossess the holder of his standing. This is what Améry states over and again: the other is sovereign not because he can cause Améry intolerable pains, but because rendering him physically helpless reveals a deeper helplessness: Améry’s standing as a person, as a being with dignity, is finally possessed and then extinguished by his torturer. Amery’s suffering, his destruction, is finally only explained by and thus made intelligible through its invocation of a recognitive understanding of subjectivity.

It is just this recognitive conception of dependence that is explicated in the final paragraph of Améry’s account of his torture. It begins thus: “Whoever has succumbed to torture can no longer feel at home in the world. The shame of destruction cannot be erased. Trust in the world . . . will not be regained. That one’s fellow man was experienced as the antiman remains in the tortured person as accumulated horror. It blocks the view into a world in which the principle of hope rules” (AML, 40). It is a constant in the literature on torture and the camps that it is the victim not the torturer who carries the burden of shame. Shame is always the unwilling exposure of the involuntary body, the body one is, without the consent of the voluntary body, the body one has. Coordinated with this abiding sense of shame is something worse, a loss of trust in the world. This loss I take to be the core of the claim that the one who is tortured stays tortured; trauma just is loss of trust in the world. Améry poses loss of trust in the world as the existential corollary of the discovery that there can be in this world an absolute sovereign, that one’s voluntary body can be undone, and one’s involuntary body in the possession of another. The ideal of absolute sovereignty turns on taking the existential core of human dependence, our final helplessness and impotence in the face of the other, and in wild rebellion against it seeks to transfigure the helplessness of the victim into spiritual independence. Torture reveals that existential helplessness, each individual’s absolute dependence on the other for her standing as a person, is not a mere contingent occurrence accompanying infancy, sporadic but extreme moments of adulthood, and the humiliations of aging; rather, existential helplessness is constitutive of the human. Existential helplessness is categorical for the being of humans. Absolute dependence on god or the gods was religion’s way of acknowledging and coping with existential helplessness. Without gods, we come to know that our helplessness is before the human other; in rebellion against this fact, we degrade and devalue the other in order that either the dependence can seem to disappear altogether or its existence is turned from constitutive structure into contingent fact. Torture radically exposes and relentlessly exploits the deepest, because ineliminable dimension of human helplessness.28

It is because existential helplessness cannot be overcome that we can have a world at all only if we can trust proximate others not to exploit our helplessness, exploit our vulnerability. More precisely, having trust in the world is not having to consciously face the full impact of helplessness; we have trust in the world when we can forget our helplessness and vulnerability, when we can take for granted that our mere being in the world matters to relevant others, is recognized, in ways that involve their respecting us, respecting our humanity, say.29 The “accumulated” horror of torture—and related infamies like rape and domestic abuse—is that having faced an absolute sovereign, I can never again forget my helplessness, can never again forget that there are those for whom my humanity has no standing, that I am, finally, unconditionally exposed and vulnerable.

This situation of exposure, vulnerability, and helpless, the actuality of not being recognized by the sovereign, has everything to do with pain and embodiment. Améry acknowledges that trust in the world is a multifaceted and complex phenomenon; some of part of it will include a blind confidence that the sun will rise tomorrow, fire burn, water quench my thirst. Although not as ironclad, my trust in the social world is akin to the kind of trust I require and have concerning the natural world. By reason of an unwritten social contract, the one hibernating in each reproducible social practice capable of sustaining a social identity, I must, Améry argues, have a moral certainty that the other person “will respect my physical, and with it also my metaphysical, being. The boundaries of my body are also the boundaries of my self. My skin surface shields me against the external world. If I am to have trust, I must feel on it only what I want to feel” (AML, 28). Améry consistently describes the harm of torture, its particular transgression as a border violation; or rather, as the experience in which the experience of the self having boundaries and borders disappears. But the experience of one having borders and boundaries, having bodily autonomy, is what it is for one to have standing in the world, to matter at all to others. And to matter at all to others is the condition of trust in the world, to feel one has a place and that one will not be arbitrarily or indifferently harmed, injured, damaged, pained by one’s fellow beings. So the very being of the self in the modern world is the sense that one counts, that one’s self counts, that one’s skin counts, and that one’s self counts is shown by one’s skin counting. The skin is central here because it is a natural boundary; in order for the world to affect me it must somehow touch my skin. My senses and skin (which in its touching mode is also a sense) are modes of access to the world; they can give access to the world only through their capacity to be affected by the world. Each mode of access is simultaneously a mode of vulnerability that is capable of emphatic harm and injury: scorching light, blasting sounds, disgusting or noxious smell and tastes, and all the blows and stabbing and burning and freezing and twisting that skin and limbs can suffer. Because I am so hopelessly and radically vulnerable as a sensible being, I can have a sense of self only if I can, thoughtlessly, trust those around me to acknowledge my skin and senses as mine so that I will only feel on them what I want to feel.

“At the first blow . . . this trust in the world breaks down. The other person, opposite whom I exist physically in the world and with whom I can exist only as long as he does not touch my skin surface as border, forces his own corporeality on me with the first blow. He is on me and thereby destroys me. It is like a rape, a sexual act without the consent of one of the two partners” (AML, 28). That Améry draws on the analogy of rape is consequential for his argument since there it is the lack of consent and not necessarily the physical harm itself that makes the crossing of the boundary of the victim’s skin a violation. Rape is traumatic not because of the physical injury done—although in some rapes that is extensive, even horrific; but because the victim’s skin is no longer counted as a boundary of any sort, and hence her body no longer counts as hers, not just her bodily vulnerability, but her capacity for rapture, joy and intimacy are used against her. She no longer has standing before the other. Améry supposes that the victim of rape experiences her rapist as sovereign; and in so experiencing the other she loses, briefly or permanently, a sense of herself as having a world.30 Rape is a form of losing the world in which it can be the case that one who is raped stays raped, just as one who is tortured stays tortured. Analytically, it would be fair to hazard that these convergences are categorical: rape is form of torture. And in the manner in which rape is a form of torture there is revealed the sexual subtext to torture: involuntariness is essential to sexuality, it is the glory and terror of sexuality. Torture, as the exploitation of the involuntary body, turning bodily involuntariness against the being whose body is being tortured, makes all torture violation.

Torture and rape are two aspects of a single phenomenon: torture reveals our systematic dependence on others, our existential helplessness, while rape reveals that dependence is physical and metaphysical at once, a matter of recognitive social practices that are constitutive of the person as such, as a being with dignity. The helplessness and dependence revealed by torture—the structure of sovereignty incubating in each human relation—shows that the mineness of pains refers to my body as the body of an intrinsically valuable and infinitely injurable being.

This is sufficient to demonstrate the particular quanta of moral heinousness in rape and torture. The short way with the argument is that, all things being equal, killing in self-defense overrides the human status of the victim but does not require devaluing, degrading, dehumanizing, undoing that status. A justified killing can at least claim to respect the enemy; historically, war enemies have even honored one another in death. Torture and rape are otherwise: they depend upon undoing the human standing of the victim, of removing her from the domain of beings deserving of human treatment. Killing, at its best, severs an insupportable relation; rape and torture are relations whose very dynamic requires the transformation of the relationship as a fully human one into something else: a relation between human and sub-human, say; relations whose terms require that the victim be shown that her standing as human is insupportable and unsustainable. Torture and rape are paradigm cases of moral harm because they are enduring and repeatable forms of human encounter in which one of its members dismantles the fabric of the human status of the victim by, not merely overriding it, but by separating the living being from her bodily autonomy and integrity. My effort here has been to begin revealing how the physical and moral body are fused, how they are internally connected aspects of a complex unity. Rapist and torturer understand this fusion perfectly since their perpetual effort is its separation into its constituent parts, to have the physical human remain but without its standing or value as human, while their own standing as human has become thereby inviolable. (This should make us worry that the very idea of the human status as metaphysically inviolable—as opposed to morally and socially inviolable—is a product of a form of mastery and domination.)

What makes the effort of degradation possible in cases of rape and torture is that the human standing is compromised, conditioned from the inside. A shorthand for this thesis comes from Annette Baier: first persons are second persons.31 Our standing as human is bestowed on us and remains dependent on relevant social others for its maintenance. Killing’s awfulness for the killer acknowledges this fact, but killing itself does not necessarily or inevitably exploit it. Rape and torture render the victim existentially helpless; their helplessness is the emphatic statement of their dependence, on their being utterly dependent for their human standing on this very one who is now not recognizing them, whose actions shred the fabric of bodily integrity through invasion or the intentional infliction of pain. We are not just, as a matter of fact, vulnerable before the depredations of others; in rape and torture we discover that we are categorically vulnerable, vulnerable in the very core of our standing as human. It is unsurprising that the raped and the tortured stay raped and tortured, or that they lose forever their trust in the world.

Because torture joins the value of the human with its specific denial and decimation, the ban on torture marks the place where the affirmation of the human as possessing intrinsic worth must occur. If the state has license to torture, then the state is the owner and possessor of my body. If the state has license to torture, then I am nothing. The absolute prohibition of torture, which is the clear meaning of the Universal Declaration of Human Rights and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, captures the dignity of each individual through the recognition of their bodily integrity. Without this recognition, the rule of law in its modern sense would be void. It is sometimes argued that an absolute prohibition on torture is unwarranted and irrational since there are occasions when the good of the many must outweigh the intrinsic moral worth of the individual; we moderns, the argument goes, no longer sanction moral or legal absolutes of any kind. The argument is fallacious. As Jeremy Waldron has argued, we all do think that it will be appropriate to prohibit some actions even under the most extreme circumstances: “if it is not torture of the terrorist, [we] will draw the line at torturing the terrorist’s relatives, or raping the terrorist, or raping the terrorist’s relatives,” all of which might be justified using the same logic of costs and benefits.32 If we must draw the line somewhere, why not draw it where modern morality and jurisprudence found it: with the absolute prohibition of torture in all forms and under all circumstances? Nothing less would make perspicuous what we mean when we claim each human is possessed of an inviolable dignity.


J.M. Bernstein is University Distinguished Professor of Philosophy at The New School for Social Research.


Published Winter 2012

1. Jana Prikryl, “Abu Ghraib: A Global Family Portrait,” The Believer, 3/2 (March 2005). Almost certainly, the United States had in fact backed out of its civilization agreement with the rest of the world many times before this; Bush’s cancellation is distinguished by the authority, explicitness, and openness with which it was done. 

2. For a critical understanding of the guillotine as an anticipation of serialized death, see Enzo Traverso, The Origins of Nazi Violence, trans. Janet Lloyd (New York: The New Press, 2003), pp. 21-7. 

3. Cesare Beccaria, On Crimes and Punishments and Other Writings, trans. Richard Davies, Virginia Cox, and Richard Bellamy (Cambridge: Cambridge University Press, 1995), p. 8. Although its specific arguments against torture are devastating in their own right, the influence of Beccaria’s work is derived from his placing those arguments firmly in the context of a philosophical defense of the need for a modernized and rationalized legal system in which the rule of law is premised on individual rights derived from a hypothetical social contract. For a useful overview, see Bellamy’s Introduction. 

4. Lynn Hunt, Inventing Human Rights: A History (New York: W. W. Norton, 2007), p. 97. All further references to Hunt will follow: IHR. For the history of the reception of Beccaria, see pp. 75-7. 

5. Darius Rejali, Torture and Democracy (Princeton: Princeton University Press, 2007), p. 50. 

6. I say this is only one path because I understand dignity to be a term that gathers its authority from a wide diversity of sources of which the most important is probably Protestant soul doctrines that treat each as infinitely valuable or worthy in God’s eye. So the universalizing of high civil status doubtlessly drew on the process of secularizing religious values, which worked itself out differently throughout Europe as each different civil tradition was modernized in line with that culture’s distinct patterns of secularization and civilizational progress. 

7. For one version of this divine economy and its eclipse, see Lisa Silverman, Tortured Subjects: Pain, Truth, and the Body in Early Modern France (Chicago: University of Chicago Press, 2001).

8. Richard A. Posner, “Torture, Terrorism, and Interrogation,” argues that “A major project of modernity is to make people squeamish in order to discourage recourse to violence, especially political violence, the most dangerous kind—is, in other words, to turn the beast of prey that is natural man into a tame domestic animal, as Nietzsche put it. The inviolability of the body is a symbol of that project, and the best practical argument for barring the use of violence to defend property rights, for prohibiting flogging as a form of punishment, and for abolishing capital punishment or at least making it painless—and for affixing the “torture” label certainly to the affliction of pain, and probably to any offensive touching, when aimed at extracting information” (in Sanford Levinson [ed.], Torture: A Collection (New York: Oxford University Press, 2004), p. 292; italics mine). Seth Kreimer, “Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror,” University of Pennsylvania Journal of Constitutional Law 6 (2003), makes bodily integrity essential to American constitutional law (pp. 295-9), using the Thirteenth Amendment’s ban on slavery as the definitive wedge: “A constitutional prohibition on slavery brings with it a presumption that the bodies of citizens are subject to neither the “uncontrolled authority” of the state nor that of any private party” (p. 296).

9. Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review vol. 105/no. 6 (October 2005), pp. 1726-7. This statement is part of an argument to the effect that the prohibition on torture is a legal archetype, that is, a provision that is at the basis of the integrity of other laws and regulations “which is emblematic of our determination to break the connection between law and brutality and to reinforce its commitment to human dignity, even when law is at its most forceful and its subjects are at their most vulnerable” (p. 1739). Waldron continues by arguing that the prohibition on torture should be taken as archetype for the rule of law itself since “law (at least in the heritage of our jurisprudence) has set its face against brutality, and has found ways of remaining forceful and final in human affairs without savaging or terrorizing its subjects. The promise of the rule of law, then, is the promise that this sort of ethos can increasingly inform the practices of the state, not just courts, police, jailers, or prosecutors” (p. 1742). Waldron is not here denying the long and tawdry history in which the law has been used as a mechanism of repression and domination, and where its own mechanisms have been brutal. He is rather claiming that those practices are explicit perversions of our idea of the rule of law, and that “torture is now to be regarded as alien to any system of law” (p. 1719); converging even more precisely with the argument I am running here, he argues that “We do not equate cruelty with torture, but we use torture to illuminate our rejection of cruelty” (p. 1738).

10. Quoted by Waldron, Torture and Positive Lawpp. 1683-4.

11. The history of this re-emergence of torture, and the fact that the mechanisms of stealth torture, torture that does not leave scars or marks on the body, were first developed precisely in those democratic locales where the monitoring of state practices was most consistently done is the story told in painstaking detail by Rejali in Torture and Democracy

12. My argument is not attempting to intervene in two large historical debates that it directly abuts: the direct explanation for the prohibition on torture in Europe, and the historical origins of human rights. On the first issue, most scholars now agree with the account of John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Regime (Chicago: University of Chicago Press, 2006) that penal reform, in part due to economic pressures, was the primary cause for judicial torture being withdrawn from the system. Where I disagree with Langbein is thinking that the humanist account, of the kind offered by Hunt, provides only a symbolic expression of what had been achieved otherwise. The core of the humanist narrative concerns not the fact of the prohibition on torture and its removal from judicial practice, but the uprising of the rule of law, of which the ban on torture is a core ingredient, as an expression of a changing understanding of human worth as exemplified by the social location of human body. It is worth noting here that the kind of torture whose prohibition Hunt and Langbein track was judicial torture used to secure evidence in capital cases, while the kinds of torture that have dominated the twentieth century have been of the terroristic and interrogational variety. On the second matter, for a critique of Hunt see Samuel Moyn’s review of her book, “On the Genealogy of Morals,” in The Nation (April 16, 2007), pp. 25-31; for his alternative history, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press, 2010).

13. Translated by Sidney Rosenfeld and Stella P. Rosenfeld (Bloomington: Indiana University Press, 1980). Further reference to this work will be abbreviated as: AML. The first edition of this book was published in 1966 with the title Jenseits von Schuld und Sühne (“Beyond Guilt and Atonement”). Améry was born as Hans Meyer, fleeing his native Vienna to Belgium in 1938. He was picked up by the Nazis in 1943.

14. Améry calls his practice a “phenomenology of the victim.” I prefer philosophical ethnography to phenomenology because the actual descriptive practice is as much cultural as experiential, while the descriptive practice itself, in part indebted to Sartre’s existential phenomenology, is intended to enable the categorial to emerge from the interstices of what is historically dense.

15. This is the method of strappado, an invention of the Inquisition.

16. For a fine overview and handling of this issue, with the right kind of naturalist acknowledgements against idealism, see Jennifer Hornsby, “Agency and Alienation,” in Mario De Caro and David Macarthur (eds.), Naturalism in Question (Cambridge, MA: Harvard University Press, 2004), pp. 173-87.

17. I am taking this analysis of human embodiment from Helmuth Plessner, Laughing and Crying: A Study of the Limits of Human Behavior, trans. James Spencer Churchill and Marjorie Grene (Evanston: Northwestern University Press, 1970), pp. 12-47.

18. Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York: Oxford University Press, 1985), p. 27. As should be obvious, my intention is to give to Scarry’s excellent phenomenology of torture a more explicit ethical coloring.

19. The CIA’s “KUBARK Counterintelligence Interrogation” (1963) manual on techniques of interrogation is explicit here (Section VII.A.7, p. 41): “It is a fundamental hypothesis of this handbook that these techniques, which can succeed even with high resistant sources, are in essence methods of inducing regression of the personality to whatever earlier and weaker level is required for the dissolution of resistance and the inculcation of dependence.” There are now at least four print versions of this available.

20. This also explains the kind of totality Nazism meant to be for itself, since belonging must feel like wholeness, not dependence. 

21. See Robert Bernasconi, “Who Invented the Concept of Race? Kant’s Role in the Enlightenment Construction of Race,” in Bernasconi (ed.), Race Oxford: Blackwell, 2001), pp. 11–36.

22. George Kateb, Hannah Arendt: Politics, Conscience, Evil (Oxford: Martin Robinson, 1983), p. 81. On my reading, this is also Arendt’s own Conrad-inspired (“Exterminate all the brutes”) account of the African genocides from the imperialist era: Hannah Arendt, The Origins of Totalitarianism (New York: Meridian Books, 1958), Chapter Seven, “Race and Bureaucracy.”

23. On the view of the wrongness of torture I am arguing that neither extreme pain (as Utilitarianism would require) nor the subversion of autonomy (as a Kantian, deontological account would offer) gets at the wrongness in a compelling way. This is what the details of a philosophical ethnography make perspicuous. The most sophisticated version of the deontological view is offered by David Sussman, “What’s Wrong with Torture?” Philosophy and Public Affairs33/1 (Winter 2005), pp. 2-33. On my account pain leads to the destruction of agency and therefore trust in the world. But in order to make sense of the severity of this, that it is the self in its standing as a person that is thereby destroyed, one requires an intersubjective account of the constitution of the self that can draw in the character of human embodiment. Sussman’s account does too little with either the place of the body or the other’s access to our moral standing. For a useful survey of the various theories of the wrongness of torture proximate to mine (as well as an excellent critique of ticking bomb arguments) see J. Jeremy Wisnewski, Understanding Torture (Edinburgh: Edinburgh University Press, 2010).

24. The orienting effort of my analysis of torture, and of my reading of Améry, is to show that the relation of torturer and victim is a depleted, non-dynamic version of what Hegel first analyzed in terms of the relation between master and slave, demonstrating the master is, despite himself, dependent on the slave for his very standing as master, recognized by a being he does not recognize. My account is meant to add to Hegel’s intersubjective account of freedom and self-consciousness a more robust account of bodily being. My deployment of Plessner’s theory of our having and being bodies is what makes possible adding bodily being to Hegel’s theory of recognition. For Hegel’s theory, see G. W. F. Hegel, Phenomenology of Spirit, trans. A.V. Miller (Oxford: Clarendon Press, 1977), §§ 166-96. 

25. Judith Butler, “Longing for Recognition,” Undoing Gender (New York: Routledge, 2004), p. 132. 

26. For an elaboration of this social practice construction of recognition, see my “To Be Is to Live, To Be Is to Be Recognized,” Graduate Faculty Philosophy Journal 30/2 (2009), pp. 357- 390.

27. Butler, “Longing for Recognition,” p. 148. 

28. In underlining the that the relation between trust and vulnerability revealed by torture’s sovereign structure is, finally, at one with traditional religion’s understanding of human helplessness, and hence that trust in god was always a radicalization and thematization of social trust—just the classical Durkheimian thesis—it follows that what is revealed by modern torture is not itself modern, but a recurrent feature of the human condition that is materialized differently in different social formations. I want to thank Adi Ophir for urging this and a handful of other clarifications on me.

29. For the beginnings of a defense of this claim, see my “Trust: On the Real But Almost Always Unnoticed, Ever-Changing Foundation of Ethical Life,” Metaphilosophy 42/4 (July 2011), pp. 395-416.

30. In her Aftermath: Violence and the Remaking of the Self (Princeton: Princeton University Press, 2002), Susan J. Brison reconstructs the meaning of her rape through explicit references to Améry’s account of his torture.

31. Annette Baier, “Cartesian Persons,” in her Postures of the Mind: Essays on Mind and Morals (Minneapolis: University of Minnesota Press, 1985), p. 84.

32. Jeremy Waldron, “Torture and Positive Law,” op. cit., p. 1715.