A Habermasean Study of Human Rights, Torture and the Lawsuit Against John Yoo
A Habermasean Study of Human Rights, Torture and the Lawsuit Against John Yoo

Summary/Abstract: This paper employs Jurgen Habermas’ “Janus-Faced” model of human rights to study the right against torture. Part I describes the moral and legal aspects of the Habermasean concept of human rights, and explains the significance of the latter which serves as an indispensable foundation to the former. Part II studies the right against torture from a Habermasean perspective by illuminating its nature as a moral right as well as its moral justification, along with its ethical and utilitarian aspects. By using John Yoo’s flawed arguments to justify the use of torture in times of crises, Part II then explores how a mere reliance on a moral foundation inhibits a true understanding and an effective exercise of the right of torture and makes it prone to cognitive indeterminacy and motivational uncertainty. Part III goes on to explain how the right against torture, as a human right, must rely on legal norms. It reveals the consensus of legal scholars on such reliance, and discusses the significant role of the Judiciary that has emerged throughout the years in serving as a check upon the Executive Office in wartime and other emergency situations. Padilla v. Yoo is a good example of this process, although criminal sanction, not civil lawsuits, might serve a better deterrent effect.

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