English Common Law Forbids Torture

The Belgravia Dispatch has a very interesting post excerpting an British court ruling titled Opinions Of The Lords Of Appeal For Judgment For Cause on the subject of torture and it's use under British Law. The roots of the law against torture extend back to "Common Law" which is the basis of both British and American law. Many people may not realize the roots of law in America refer back to English Common Law as it was inherited by our country's forefathers. The reason for reaching back into law that extends all the way to the Middle Ages is that wisdom of the ages is contained in it's depths. Granted that wisdom has to be considered in the context of it's age as well as the current precidents in place. The law in Britain has a history a thousand years older than our own. Often the lessons of history are reflected in law. Here is an except of Djerejian's excerpt:

The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it. When judicial torture was routine all over Europe, its rejection by the common law was a source of national pride and the admiration of enlightened foreign writers such as Voltaire and Beccaria. In our own century, many people in the United States, heirs to that common law tradition, have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal "rendition" of suspects to countries where they would be tortured.


Just as the writ of habeas corpus is not only a special (and nowadays infrequent) remedy for challenging unlawful detention but also carries a symbolic significance as a touchstone of English liberty which influences the rest of our law, so the rejection of torture by the common law has a special iconic importance as the touchstone of a humane and civilised legal system. Not only that: the abolition of torture, which was used by the state in Elizabethan and Jacobean times to obtain evidence admitted in trials before the court of Star Chamber, was achieved as part of the great constitutional struggle and civil war which made the government subject to the law. Its rejection has a constitutional resonance for the English people which cannot be overestimated.


During the last century the idea of torture as a state instrument of special horror came to be accepted all over the world, as is witnessed by the international law materials collected by my noble and learned friend Lord Bingham of Cornhill. Among the many unlawful practices of state officials, torture and genocide are regarded with particular revulsion: crimes against international law which every state is obliged to punish wherever they may have been committed...


Torture, one of most evil practices known to man, is resorted to for a variety of purposes and it may help to identify them to put this case into its historical context. The lesson of history is that, when the law is not there to keep watch over it, the practice is always at risk of being resorted to in one form or another by the executive branch of government. The temptation to use it in times of emergency will be controlled by the law wherever the rule of law is allowed to operate. But where the rule of law is absent, or is reduced to a mere form of words to which those in authority pay no more than lip service, the temptation to use torture is unrestrained. The probability of its use will rise or fall according the scale of the perceived emergency.


[...]The law will not lend its support to the use of torture for any purpose whatever. It has no place in the defence of freedom and democracy, whose very existence depends on the denial of the use of such methods to the executive.


Once torture has become acclimatised in a legal system it spreads like an infectious disease, hardening and brutalising those who have become accustomed to its use: Holdsworth, A History of English Law, vol v, p 194. As Jackson J in his dissenting opinion in Korematsu v United States, 323 US 214 (1944), 246 declared, once judicial approval is given to such conduct, it lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. A single instance, if approved to meet the threat of international terrorism, would establish a principle with the power to grow and expand so that everything that falls within it would be regarded as acceptable.