Torture and Dignity

Torture and Dignity An Essay on Moral Injury

by J. M. Bernstein

University of Chicago Press, 2015
Cloth: 978-0-226-26632-9 | Paper: 978-0-226-70887-4 | Electronic: 978-0-226-26646-6
DOI: 10.7208/chicago/9780226266466.001.0001

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ABOUT THIS BOOKAUTHOR BIOGRAPHYREVIEWSTABLE OF CONTENTS

ABOUT THIS BOOK

In this unflinching look at the experience of suffering and one of its greatest manifestations—torture—J. M. Bernstein critiques the repressions of traditional moral theory, showing that our morals are not immutable ideals but fragile constructions that depend on our experience of suffering itself. Morals, Bernstein argues, not only guide our conduct but also express the depth of mutual dependence that we share as vulnerable and injurable individuals.

Beginning with the attempts to abolish torture in the eighteenth century, and then sensitively examining what is suffered in torture and related transgressions, such as rape, Bernstein elaborates a powerful new conception of moral injury. Crucially, he shows, moral injury always involves an injury to the status of an individual as a person—it is a violent assault against his or her dignity. Elaborating on this critical element of moral injury, he demonstrates that the mutual recognitions of trust form the invisible substance of our moral lives, that dignity is a fragile social possession, and that the perspective of ourselves as potential victims is an ineliminable feature of everyday moral experience.

AUTHOR BIOGRAPHY

J. M. Bernstein is distinguished professor of philosophy at the New School for Social Research. He is the author of many books, including Adorno: Disenchantment and Ethics; Against Voluptuous Bodies: Adorno’s Late Modernism and the Meaning of Painting; and Recovering Ethical Life: Jürgen Habermas and the Future of Critical Theory.

REVIEWS

“For many years now Bernstein has been a leading voice in the evolving critical theory tradition, turning out impressive and influential work on Lukács, Adorno, the relation between art and philosophy, and social critique. Torture and Dignity is his most ambitious and systematic book. Taking his bearings from what are the clearest, most unambiguous cases of moral injury—torture and rape—he aims to develop a general account of the nature of moral wrong, and he does so without engaging the conventional (and, he argues, thoroughly misleading and distorting) problem of convincing the moral skeptic to refrain from such harm. What results is a book that is lucidly written, original, passionate, and compelling, with many moments of real brilliance. His ability to develop out of such a ‘negative ethics’ a positive account of our dependence on each other is no less valuable and challenging. The book is a major achievement.”

— Robert B. Pippin, author of Interanimations: Receiving Modern German Philosophy

“There is a lot we can learn from topics most of us would rather avoid thinking about. Here, Bernstein does much of the difficult work for us, bringing rape and torture into the general discussions of human dignity, moral injury, and the nature of persons. A much-needed book, and brilliantly argued.”—

— Linda Martín Alcoff, author of The Future of Whiteness

“This book has two topics, dignity and torture—each of which has assumed great importance in the last twenty years. Bernstein contrasts torture with the rule of law and human dignity with violation and degradation. I cannot imagine a better account of the affront to dignity posed by the terrible practice of torture.”

— Jeremy Waldron, author of Torture, Terror, and Trade-Offs: Philosophy for the White House

“Torture and Dignity raises a number of important issues in moral philosophy and moral practice in a way that is original and highly engaging. Bernstein is a brilliant writer whose passion and conviction come across vividly and persuasively in a breadth of styles and approaches, which is so unusual in contemporary ethics. In this work we see a philosopher engaged in analysis and argument, but also with literature, phenomenology, memoir, law, the history of ideas, and public policy.”

— Robert Stern, author of Understanding Moral Obligation: Kant, Hegel, Kierkegaard

"Bernstein (New School for Social Research) presents a strong case for moving ethical inquiry in a new direction... Bernstein's presentation is clear, original, and persuasive... Highly recommended."

— L. J. Alderink, Choice

"Bernstein’s moral instincts strike as sound, and his novel ideas pertaining to embodiment, trust, and love — and their relation to dignity — strike as insightful contributions to moral psychology."

— Craig Duncan, Notre Dame Philosophical Reviews

“A complex and enigmatic discussion of torture and rape.”

— Philosophy in Review

Acknowledgments

Introduction - J. M. Bernstein
DOI: 10.7208/chicago/9780226266466.003.0001
[Anscombe, moral injury, moral rules, torture, victim]
In “Modern Moral Philosophy”, Elizabeth Anscombe argues that philosophers have been wasting their time doing moral philosophy because moral obligations based on moral principles make no sense in the absence of the religious setting in which “ought” statements appear as laws commanded by the creator of the universe. What is untoward in traditional morals is the idea that moral wrongness is essentially about breaking rules and commandments. For us secular beings, what makes an action wrong is that it harms a person. If what makes an action wrong is that it harms a person, then the primary phenomena of modern moral life is moral injury. The claim, then, is not that there are no moral rules; it is, rather, that broken rules stand for broken bodies and ruined lives. Moral injury is best comprehended from the perspective of the victim, the one suffers the injury, rather than from the perspective of the agent tempted to commit the injury. Torture and rape are paradigm cases of moral injury; interrogating them will lead to thesis that what is harmed in moral injuries is the dignity of the wholly embodied human subject. (pages 1 - 22)
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Part I: History, Phenomenology, and Moral Analysis

Abolishing Torture and the Uprising of the Rule of Law - J. M. Bernstein
DOI: 10.7208/chicago/9780226266466.003.0002
[Beccaria, body, Foucault, pain, rule of law, sovereign law, torture]
In Discipline and Punish, Foucault offers a stark contrast between two images of punishment: the tortured body of the regicide Damiens versus the austere disciplinary regime of a prison for young offenders. In light of this contrast, Foucault argues that in the eighteenth century punishment was transformed from “an art of unbearable sensations” to “an economy of suspended rights” in which the body is no longer touched; this transformation tracks a transformation in which pain becomes disenchanted, becoming wholly the belonging of the bodily subject suffering it. Beccaria’s On Crimes and Punishment installs Foucault’s contrast as one between two ideas of the authority of law: the sovereign law of torture as opposed to the substantive rule of law. The force of the new rule of law is determined by the moral axiom that the body of a citizen must not be touched, an axiom that drew all its authority from being the determinate negation of the tortured body; what ought to be lives off of what must never be. The newly formed body beyond touch is the body with dignity. In forgetting Beccaria, we have forgotten the experiences and material conditions that make modern moral life possible. (pages 25 - 72)
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I. Introduction

II. Abolishing Torture: The Dignity of Tormentable Bodies

III. Torture and the Rule of Law: Beccaria

IV. The Beccaria Thesis

V. Forgetting Beccaria

On Being Tortured - J. M. Bernstein
DOI: 10.7208/chicago/9780226266466.003.0003
[Améry, body, devastation, existential helplessness, Korsgaard, pain, torture, trust in the world]
If torture is the paradigm of moral injury, then what is first required is a descriptive, phenomenological account of the experience of torture. Jean Améry’s account of his torture is sufficiently detailed and conceptually refined to guide further philosophical reflection. Améry shows torture to be a work of inflicting unbearable pain that leads to devastation, a being broken, undone, overwhelmed in such a way that once tortured one remains tortured. By ‘devastation’ is meant the moral equivalent of psychological trauma: one is undone in one’s status as a person. In torture the victim experiences himself to be existentially helpless before an other who has complete control over his body: the victim’s active body belongs to the torturer, leaving the victim with only his passive, living body. The torturer thus separates the experience of pain from pain’s function of being a reason to act in an appropriate way (as Korsgaard has rightly argued). The torturer attempts to heighten the sensation of pain while emptying pain of its reason-giving force. Finally, the relation between torturer and victim is shown to be an analogue of Hegel’s account of the relation between master and slave. (pages 73 - 115)
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I. Introduction

II. Pain: Certainty and Separateness

III. Améry’s Torture

IV. Pain’s Aversiveness

V. Pain: Feeling or Reason?

VI. Sovereignty: Pain and the Other

VII. Without Borders: Loss of Trust in the World

The Harm of Rape, the Harm of Torture - J. M. Bernstein
DOI: 10.7208/chicago/9780226266466.003.0004
[Améry, being a body, Brison, devastation, dispossession, Hampton, having a body, moral injury, rape, torture]
At a crucial moment, Améry states that torture is like “a rape, a sexual act without the consent of one of the two partners.” Comparing Améry’s analysis of his torture with Susan Brison’s philosophical account of her rape, this chapter opens by demonstrating that rape and torture have the same fundamental structure. It then seeks to analyze the harm of torture through the analysis of the harm of rape. Following Jean Hampton’s lead, harm is here theorized as moral injury. Hampton takes Kant’s idea of persons as ends-in-themselves and turns it toward the victim of wrongful action: moral injury is done when an individual is the object of behaviour that represents her value as less than the value she merits as a member of her community. In rape and torture this devaluation occurs through dispossessing the victim of her bodily autonomy and integrity. To be so dispossessed, violated, causes devastation. This analysis assumes that persons both have a body that is the instrument of their actions in the world, and they are their living, sentient body. Torture and rape work to deprive victims of their voluntary body and to leave them with only their sentient, living body. (pages 116 - 172)
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I. Introduction: Rape and/as Torture

II. Moral Injury as Appearance

III. Moral Injury as Actual: Bodily Persons

IV. On Being Raped

V. Exploiting the Moral Ontology of the Body: Rape

VI. Exploiting the Moral Ontology of the Body: Torture

Part II: Constructing Moral Dignity

To Be Is to Live, to Be Is to Be Recognized - J. M. Bernstein
DOI: 10.7208/chicago/9780226266466.003.0005
[being a body, Brandom, desire, having a body, Hegel, life, Plessner, recognition, self-consciousness]
If the moral injury of torture and rape is devastation that is a consequence of dispossession, then the primary question becomes: what is a human being such that she can suffer devastation, that is, suffer an injury to her standing as a person? In order for dispossession to be devastating the (social, rational, self-conscious) capacities through which a more than living being takes up a relation to her living body must be ingredient in her self-understanding such that they provide her with some status or worth that is taken to be intrinsic to who she is for herself and for (relevant) others. The account that makes best sense of this claim is some version of Hegel’s thesis that in order to exist as a self-consciousness one must be recognized as such by another self-consciousness. This thesis is elaborated through Brandom’s naturalist contention that self-consciousness is a development from the deep structures of animal desire. Hence in humans the animal desire (drive) for self-preservation becomes the desire for recognition. This naturalist accounting is continued in demonstrating that Helmuth Plessner’s theory of humans as both being and having a body is a perfect match for and thus completes Hegel’s theory of recognition. (pages 175 - 217)
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I. Introduction

II. To Be Is to Be Recognized

III. Risk and the Necessity of Life for Self-Consciousness

IV. Being and Having a Body

V. From Life to Recognition

Trust as Mutual Recognition - J. M. Bernstein
DOI: 10.7208/chicago/9780226266466.003.0006
[Baier, desire, Honneth, love, mimesis, recognition, social contract, trust]
Why should loss of trust in the world be so integral to devastation, and how does trust tie in with the thesis that to be a person is to be recognized as a person? Because who I am for myself is in part constituted through how I am recognized by relevant others, then I am dependent on others for my standing as a person. Employing a developmental account, opposing Axel Honneth’s, it is argued that humans consider themselves to be of unconditional worth because their first caregivers treated them as being of unconditional worth. First love is the mimetic practice through which infants become persons who take themselves to be of intrinsic worth, and thus normatively come to expect to be so treated by all others. Trust, it is argued, is the social actuality of first love; it is how individuals’ self-understanding of their intrinsic self-worth is realized in everyday practice. To trust another is recognize them as a self-consciousness who recognizes you as a self-consciousness. “Trust,” Annette Baier claims, “is accepted vulnerability to another possible but not expected ill will … towards one.” But this is a pervasive experience because trust is the routine, ideally omnipresent yet mostly invisible ethical substance of everyday living. (pages 218 - 257)
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I. Introduction

II. The Necessity, Pervasiveness, and Invisibility of Trust

III. Trust’s Priority over Reason

IV. Trust in a Developmental Setting

V. On First Love: Trust as the Recognition of Intrinsic Worth

“My Body … My Physical and Metaphysical Dignity” - J. M. Bernstein
DOI: 10.7208/chicago/9780226266466.003.0007
[Améry, Arendt, body, dignity, love, Patterson, self-respect, respect, vulnerability]
Tracking further aspects of Améry experience, this chapter seeks to develop the affirmative side of the moral psychology underpinning experiences of moral injury, of humiliation, degradation, and devastation. The ‘dignity constellation’ is composed of love, lovability, respect, self-respect, and dignity. Developed through an analysis of the Nuremberg Laws and the procedures of death camps (according to Hannah Arendt), the moral character of the human body (following Fichte), the devastation of slavery (following Orlando Patterson), and an account of the dignity befitting the dead, the resulting constellation claims: Dignity is the representation of self-respect, where self-respect is the stance of one who takes herself to be of intrinsic worth and acts accordingly. Self-respect is the feeling of self-worth derived from first love. Thus to respect human dignity is to respect an individual’s standing as a constitutively vulnerable being possessed of intrinsic worth. Respect for dignity and self-respect are the third person and first person perception of the same intrinsic worth that requires the insistent affirmation of the self and the continuous acknowledgement of (respect from) others to be sustained. Self-respect requires the affirmation of bodily autonomy, while respect for dignity requires the recognition of bodily integrity. (pages 258 - 310)
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I. Why Dignity?

II. From Nuremberg to Treblinka: The Fate of the Unlovable

III. Without Rights, without Dignity: From Humiliation to Devastation

IV. Dignity and the Human Form

V. The Body without Dignity

VI. My Body: Voluntary and Involuntary

VII. Bodily Revolt: Respect, Self-Respect, and Dignity

Concluding Remarks / On Moral Alienation - J. M. Bernstein
DOI: 10.7208/chicago/9780226266466.003.0008
[moral alienation, moral injury, rape, rule of law, torture, trust, universal declaration of human rights]
This chapter opens with a reconstruction of the opening articles of the Universal Declaration of Human Rights that makes it, as a response to the Nazi deformation of law, an exact analogue of the uprising of the rule of law analyzed in Chapter 1. It is then argued that modern moral philosophy in its deontological, rule-based and utilitarian forms are forces of moral alienation, that is, they are forms of moral reflection and self-understanding that separate persons from their deepest moral commitments and experiences. Utilitarianism undermines our collective experience and understanding about the meaning of torture in relation to the rule of law; while deontological moral principles undermine women’s experiential knowledge of the moral injury of rape, while tacitly leaving the deformation of patriarchal assumptions about embodiment and reason untouched. Modern moral philosophy abstracts from moral experience, making the reality of moral injury imponderable. As a consequence, most women in the modern world do not and cannot have the trust in the world enjoyed by most men. Such an unequal distribution of trust is a marker for our moral malformation and the systematic injustice of the modern society. (pages 311 - 334)
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I. The Abolition of Torture and Utilitarian Fantasies

II. Moral Alienation and the Persistence of Rape

Notes

Index