Torture, Terrorism, and the Halakhah 25

The authorities possess this power largely because the individual against whom they exercise it is a bad person who does not“deserve” to be treated with dignity and who could easily escape his suffering by telling us what we wish to know." I want to say something more about this below, but for now I would simply note that the sources Warhaftig cites do not speak of the“terrorist” and do not limit themselves to murderers. Rather, they grant the widest sort of discretion to the court to resort to the physical abuse of anyone under its jurisdiction, even the one“who is legally culpable for neither capital nor corporal punishment,” whenever it determines that the public interest demands such action. True, this warrant for government officials to torture(if necessary) a person who refuses to observe the law is not without its limits and controls; the judge may use this power only“for the sake of Heaven” and must at all times respect the basic dignity of the individual whom he is flogging. Yet it is hardly necessary to point out that even the most vicious authoritarian or totalitarian regimes might believe that the torture they inflict upon their opponents is undertaken for good and proper cause, perhaps even for the“sake of Heaven”; moreover, as Warhaftig explicitly declares, the one who refuses to follow the dictates of the Torah possesses no“dignity” that we are required to respect. Here we arrive at yet another slippery slope or, more accurately, at the very end of a precipitous descent: if Warhaftig is correct that governments in fact possess these powers under a Toraitic conception of the maintenance of good social order, then there is no principled way to restrict their application to mass murderers and to those who aid them. Any person caught within the net of the police power, or for that matter anyone who might offend the authorities in some way, would be subject to such treatment, so long as those who inflict it were willing to justify their action on grounds of necessity. This virtually unlimited power of governmental coercion is surely not what we normally have in mind when we speak about the“rule of law.”

Finally, Warhaftig underscores the“ideological difference” between traditional Judaism and Western law. This difference, as we shall see, is the pivotal element in Warhaftig’s essay, the theoretical basis that upholds the entire structure of his halakhic argument. I want to consider it, in some detail, as an example of what contemporary jurists refer to as the governing“narratives” or“metanarratives” that undergird all legal systems, particular legal institutions, and specific acts of legal interpretation. It is helpful in this regard to compare Warhaftig’s approach** to that of Chief Justice Barak in the Supreme Court opinion,