Torture and the Problem of Dirty Hands

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Abstract

This paper looks at the contemporary debate over investigative torture in liberal democracies besieged by terrorism, from the viewpoint of the state leader, politician, judge or individual interrogator, called upon to make life-and-death decisions. It steers away from the classic debate between utilitarians and Kantians regarding moral justification, and, following Michael Walzer presents the issue as a specific case of "the problem of dirty hands in politics". Contra Walzer, the paper suggests, among other things, that the notion of dirty hands functions not only within moral theories that include absolute prohibitions but also within consequentialist theory, and that it is therefore far wider, practically illuminating and more applicable than Walzer originally assumed. Later it addresses Alan Dershowitz’s controversial suggestion requiring judicial "torture warrants", and argues that this too should be viewed in light of the notion of dirty hands rather than within the conventional debate over justifications. Finally, it suggests that, while torture may be morally unjustifiable on anything but purely consequentialist grounds, circumstances may offer the individual decision maker an excuse, rather than a justification, for resorting to torture under very restricted conditions.
Original languageAmerican English
Pages (from-to)149-173
Number of pages25
JournalCanadian Journal of Law and Jurisprudence
Volume21
Issue number1
DOIs
StatePublished - 2008

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