This week we are continuing to develop our practice of applying theoretical concepts to the study of contemporary legal processes.

You did this with finesse in your essays when examining laws on the books and in action. Bravo.

But how do these central sociological theories hold up in places that Marx, Durkheim, and Weber could have never envisioned? Places like the prison camp at Guantanamo Bay?

Many of the practices we employ (through our government and military representatives) at Guantanamo might seem to oppose our fundamental values. Values of life, liberty, justice. How then do we as a nation establish and maintain the legitimacy of these practices?

As soon as we hear that word “legitimacy” we should think of Weber.

This week, as you read, I’d like you to use your understanding of Weber to explore the extreme case of government sanctioned torture.

In doing so, ask yourself two things:

First, how do Weber’s concepts apply to the analysis of the extreme case of torture

Second, what is the role of narratives and arguments in providing not only legal basis but also a broader collective rational that justifies particular processes- in other words, a rationale that shapes our notion of what is right and wrong, acceptable and unacceptable.

In an exam (yes we are already getting to that point) you might see a short answer question that asks you to do the following:

Describe how the U.S. government (political officials and the CIA) and critics socially constructed waterboarding in the U.S. Congressional hearings in 2007 and 2008. In other words, for each group, describe one of the messages, narratives, stories, discourses, or images they used to portray their view of waterboarding.

Remember:

The social construction of the law is the meaning making that humans do, collectively, to symbolically interpret what the law is.

We look for:

the meanings people give to law
the social sources of those meanings
how meanings become embedded in everyday life
the power dynamics involved
the consequences

So, when asked to describe how the U.S. government and critics socially constructed waterboarding, you might outline the following:

The U.S. government

The U.S. government portrayed waterboarding as a controlled way of gaining extremely useful information.

Supporters of waterboarding in the U.S. government explained waterboarding as a last resort and as humane, legal, and effective.

They played down the effects of torture by presenting an image of harsh terrorists.

They would try to depict waterboarding in an ambiguous manner that made it seem less horrible. They constructed it as less common than torture techniques in the past.

The critics

The critics of waterboarding presented that waterboarding as a horrible act that truly is torture.

The critics claimed that it goes against moral values in the U.S.

The critics described it as the “enemy’s tool” and physically harmful.

If asked to relate this process back to Weber’s ideas you might explore the concepts of "rationality" and "means/ends calculation." You might point out that rational means/ends calculation (which Weber says is uniquely characteristic of modernity) shapes our understanding so that waterboarding looks like a necessary last resort in the pursuit of a legitimate goal, the collection of intelligence to secure the homeland.

What Del Rosso adds to this discussion (and something I’d like you to look for as you read) is the point that both justifications of waterboarding and negative responses to waterboarding are simply two sides of the same coin. A coin that is produced by a rational-instrumental logic that currently guides our laws.

Del Rosso tells us: “In these competing discourses, we find opposing depictions of waterboarding. Each, though, derives its discursive resonance from a single cultural code that legitimates instrumentally rational expressions of state violence and abhors torture.”

In this way the social construction of the law (both for and against waterboarding) both obey the same logic. As you read, your job is to pick up on the various elements of that logic.