Liberal Democratic Torture

Liberal democracies have long practised torture, but should they ever permit their officials to torture (and, if so, when?), how should their citizens think and talk about it, and how should the law treat it? Is it just another instance of ‘dirty hands’ in politics? If it averts some terrible harm, can resorting to it be seen as choosing the ‘lesser evil’? What, then, is torture? The ‘torture memos’ of the Bush administration's legal advisers are reviewed and their attempt to narrow its definition criticized, as is Judge Posner's attempt to confine it to physical coercion. Attempts to evade the questions above (on the grounds that torture is never effective in averting disaster) are rejected. It is suggested that torture, unlike other cases of dirty hands considered, cannot be rendered liberal-democratically accountable, in the sense that it will sometimes be legitimate and, when not, punished, because its practice cannot be publicly recognized without undermining both the democratic and liberal components of liberal democracy. This suggestion is supported by adducing a ‘Durkheimian argument’ to the effect that our institutions and customs have been so penetrated by core elements of an egalitarian ‘religion of individualism’ that violating them threatens a kind of ‘moral disintegration’. This, it is argued, requires liberal democracies to reject the very idea of a scale that can allow comparison of the benefits against the costs of torturing. The absolute prohibition serves to maintain inhibitions, though these are currently being eroded by the fear of terrorism.