No Sympathy for the Devil
April 25, 2009, 12:42 pm
Filed under: Ian | Tags: , , ,


The Washington Post quotes several friends of torture memo author Jay Bybee who say that Bybee feels really, really bad about the fact that he personally authorized the use of torture, and who offer various defenses of the war criminal’s character.  Among those defenses is this gem:

What I understand that to mean is, any lawyer, when he or she is writing about something very complicated, very layered, sometimes you can get it all out there and if you’re not careful, you end up in a place you never intended to go. I think for someone like Jay, who’s a formalist and a textualist, that’s a particular danger.

Formalism is the belief that the law consists of a series of rules which must be applied unwaveringly to all cases, without considering concepts like equity or substantive justice.  Textualism is a kind of formalism which says that these rules derive from the text of the law itself, and that sources outside of the text’s plain meaning should not be considered.  So Bybee’s friend is essentially saying “hey, don’t blame Jay, he didn’t want to torture people, he just couldn’t stop himself from torturing people because his formalistic philosophy didn’t allow him to say ‘no’ to torture.”

As I’ve explained before, Bybee’s justification of torture is inexcusable even under a textualist understanding of the law, but if we take at face value the statement that textualism and formalism might lead to an understanding of U.S. law which permits torture, isn’t this a damning indictment of textualism and formalism?  Jack Balkin once wrote that any theory of interpretation that doesn’t permit Brown v. Board of Education is inherently illegitimate.  The same should apply here; any method of legal reasoning which permits torture under U.S. law cannot be taken seriously.

(HT: Think Progress)


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[…] Overruled, below is the monster known as Judge Bybee, (and remember he was far from the only person writing […]

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