Chapter 3. Another Modest Proposal: In Defence of the Prohibition against Torture

François Marie Arouet was born in 1694 when the Ancien Régime — the iron fist of Louis XIV in the velvet glove of Versailles — seemed insouciant, eternal, and impervious to change. Yet by the time of Arouet’s death in 1778, the Enlightenment had wrought such a destabilising effect upon the old order that it was on the point of collapse. Arouet, writing under the nom de plume Voltaire,^[1] was a pivotal figure in the development of modern Western ideas about government and justice. Playwright, essayist, and critic, he was above all a relentless fighter against cruelty and superstition. I doubt many would disagree with me when I say that we still have need of such fighters. But sometimes we find the advocates of cruelty and superstition in surprising places.

Voltaire’s battle cry against the enemies of Enlightenment was ‘Écrasez l’infâme’.^[2] You must wipe out infamy. But what was so infamous as to mandate utter obliteration? On one level, the Catholic Church of his day; on another, the whole system of absolutism that held France, and most of Europe, in thrall. What they had in common was this: a power that was entirely unaccountable, entirely unlimited, and which instilled a climate of fear through the measured dosage of cruelty.

Voltaire had in mind, in particular, State practices of torture, both private and public, which were common in France. This barbarism sickened him and he knew, father of the Age of Reason though he was, that there was no reasoning with or controlling it. We cannot argue about such cruelty for that is already to dignify it as reasonable. We can only commit ourselves to its destruction. Écrasez l’infâme.

One of the cases that most profoundly disturbed Voltaire was the death of Damiens. Convicted of attempting to assassinate Louis XV, he was disgustingly tortured and finally executed over the course of several hours in the main square of the Paris townhall. Michel Foucault wrote at length about this gruesome event, and treated it as emblematic of the world of early modernity.^[3] Under the Ancien Régime, the power of the state was absolute, exercised through public spectacles and through terrors, designed to establish the total control of the state and the total subjection of all those who resisted it. Torture, no less than the great castles and glorious pageantry of the monarchy, was a way of representing that spectacular power.

Terrorism, implies Foucault, is above all an attack on the state and its exclusive right to the legitimate use of violence. Unlike a murderer or robber, the terrorist or assassin does not just kill: he claims a legitimacy, even a lawfulness, in doing so. Such acts do not ‘break’ the law, but seek to impose a new or higher law. In the days of the Ancien Régime, public execution re-appropriated that violence to the state, and turned the victim into an unwilling agent of the sovereign’s power.^[5] The very bodies of the tortured, such as Damiens, became abject puppets forcibly made to act a part in this pageant play of complete authority. The reduction of a person to a body and a body to the puppet of another’s will, as much as pain, defines torture. Torture and execution ‘did not re‑establish justice; it re-activated power’.^[6] Its point, ultimately, was not to exact retribution or, it goes without saying, to extract information, but to show us all just who was boss.

Yet ironically, as the case of Voltaire demonstrates, the very brutality of torture undermined the stability of the state. Many people were naturally horrified by events like the death of Damiens. Many more recalled, or had occasion to experience the lettres des cachets, which entitled the French state to lock their opponents up without trial, without explanation, and at His Majesty’s pleasure. Thus torture and arbitrary punishment became imbued with a wholly different set of meanings than that intended by the state. It came to show not the power of the state, but its insecurity; to suggest not the divinity of the sovereign but his partiality; to instil not a kind of passivity and submission in the population but on the contrary to generate activity and resistance. These provocations exploded into life at the end of the eighteenth century, wiping out not just these notorious practices but the regime with which they had become synonymous.