Judicial torture to extract information or elicit confession was a common practice in pre-modern societies, both in the East and the West. Moreover, often it was applied not only on the suspects, but also on the witnesses and plaintiffs as well. This paper proposes a positive theory for judicial torture. It is shown that torture reflects the magistrate's attempt to balance type I and type II errors in decision-making, by forcing the guilty to confess with higher probability than the innocent, and thereby decreases type I error at the cost of type II error. In that case, torturing the witnesses or the plaintiff might also serve the same function, as it helps to screen the cases so that only those with greater merits enter the court. When the information revealed during investigation improved as a result of technological advance, a judicial system based on torture became inferior to one based on evidence. This result is then used to explain the historical development of the judicial system.

Recommendations -- Background: official sanction for crimes against detainees -- Torture of detainees in US counterterrorism operations -- Individual criminal responsibility -- Appendix: foreign state proceedings regarding US detainee mistreatment -- Acknowledgments and methodology.

This book reframes the historical, legal and moral discourse on the question of whether torture can be justified in exceptional circumstances.

In Terror in the Balance, Posner and Vermeule take on civil libertarians of both the left and the right, arguing that the government should be given wide latitude to adjust policy and liberties in the times of emergency. They emphasize the virtues of unilateral executive actions and argue for making extensive powers available to the executive as warranted. At a time when the 'struggle against violent extremism' dominates the United States' agenda, this important and controversial work will spark discussion in the classroom and intellectual press alike.

Focusing on India between the early nineteenth century and the First World War, Colonial Terror explores the centrality of the torture of Indian bodies to the law-preserving violence of colonial rule and some of the ways in which extraordinary violence was embedded in the ordinary operation of colonial states. Although enacted largely by Indians on Indian bodies, particularly by subaltern members of the police, the book argues that torture was facilitated, systematized, and ultimately sanctioned by first the East India Company and then the Raj because it benefitted the colonial regime, since rendering the police a source of terror played a key role in the construction and maitenance of state sovereignty. Drawing upon the work of both Giorgio Agamben and Michel Foucault, Colonial Terror contends, furthermore, that it is only possible to understand the terrorizing nature of the colonial police in India by viewing colonial India as a 'regime of exception' in which two different forms of exceptionality were in operation - one wrought through the exclusion of particular groups or segments of the Indian population from the law and the other by petty sovereigns in their enactment of illegal violence in the operation of the law. It was in such fertile ground, in which colonial subjects were both included within the domain of colonial law while also being abandoned by it, that torture was able to flourish.