Mark Washofsky

That is a good question, and like all good questions it resists a facile answer. One line of response is suggested by the American jurist Seth F. Kreimer:”

Faced with a threat of mass devastation that can be avoided only through torture, could an American official believe, as a matter of morality and public policy, that she should choose the path of the torturer as the lesser evil? On this question, I am prepared to concede that there is room for debate, as there is room for debate as to whether under extraordinary circumstances a public official should choose to violate any provision of the Constitution . But on the question of whether scholars or courts should announce before the fact that the Constitution permits torture, the answer seems clearer: ours is not a Constitution that condones such actions.

These words embody one of the core doctrines of the theory known as legal positivism, namely the sharp theoretical distinction between law and morality.” These two ways of thought, which deal with the regulation of human conduct, cover much the same ground; nonetheless, they are to be kept hermetically sealed one from the other. Kreimer believes firmly that the U. S. Constitution prohibits torture; nonetheless, he recognizes that a public official would feel enormous pressure, from both external sources as well as her own commitment to the protection of innocent life, to use torture in the situation described. His solution is to allow the official to act on moral grounds, to choose to disobey the law when compliance with the legal standard would lead to a morally indefensible result. That choice, though possibly a moral obligation, remains an illegal act; the law(in this case, the Constitution ) recognizes no“higher” legal authority than its own rules and procedures.

In Jewish law, by contrast, the distinction between law and morals is not so clear and obvious.” To declare that the Torah , as we understand it, forbids torture is to make a statement of moral as well as legal force; by contrast, to say that an action is“moral” even though it violates the Torah creates a difficulty for those of us seeking to work within the parameters of Jewish law, however progressively we interpret it. Yet Professor Kreimer’s approach might serve to underline for us the fundamental tension that we can perceive between the demands that Torah places upon us and our capacity to realize them in the harsh reality of life. Our existential dilemma is that we know what we are supposed