The Legitimacy of Torture Via Dirty Hands Reasoning

The problem of dirty hands, as put by Michael Walzer, has played an important role in the ongoing discussion of the violation of certain moral rules in politics. The basic dilemma states that in politics, individuals will often be faced with the need to make a decision between morally objectionable actions. Given this, can the right thing can still be done? Of the many situations which might call for commiting a wrong in political office is the decision to use torture. A wrong which has been afforded a particular distinction, in that many states and international law prohibit its use. This essay intends to evaluate whether or not torture should be treated differently under the same logic of dirty hands reasoning. It will not evaluate the morality of torture or dispute the existence of a dirty hands scenarios, rather it will approach the question of torture in the context of pre-existing, normalised use of violence by the state, and argue that torture, although perhaps morally objectionable, is not significantly different from other wrongs and should be evaluated under similar terms.

Steven Lukes’ “Liberal Democratic Torture” gives us a well put argument in favour of torture being considered separate from other dity hands scenarios. For Lukes, dirty hands reasoning is not applicable to torture, specifically in the case of liberal democracy where individuals in positions of political power can be held to account for the moral wrongs they might commit (Lukes 12-13). Recalling that in a situation of dirty hands, a person in politics is not in the right for doing what is deemed necessary given certain constraints: rather, that they may be in the right specifically because they are aware that what they are doing is wrong, as are we, Walzer writes: “it is by his dirty hands that we know him.” The liberal democracy enables the public to hold politicians to account for the wrongs that they commit, and critically according to Lukes, uphold the institution of liberal values. Yet he argues that torture, unlike other institutional wrongs, cannot be held accoutable in the same way in that it cannot be legitimate, and is not punishable. Torture accoring to him commits two “vices”, a “vice of concealment”, where the act is not acknowledged publicly, and is disavowed upon revealing, as well as a “vice of violence” where (citing Henry Shue) torture represents a violation of the “primative moral prohibition against assault upon the defenseless.” Lukes is careful to note the that this “vice of concealment” is not unique to torture, as there are plenty of insitutional wrongs which are commited in secrecy. Yet these wrongs may be popularly endoresed given the circumstance, whereas torture contains this character in tandem with a public attitude that is staunchly opposed to its use. Lukes says that torture is so initially repulsive to the general public precisely because it strikes discord with our liberal values of fairness and respect for human dignity. In citing Durkheim, he makes the case that it “threatens moral disintegration”, and undermines the bonds upon which institutions in liberal democracy are founded. Thus, torture lacks the otherwise neccesary conditions of a wrong which can be evaluated under a dirty hands framework; the distinction afforded to it as separate from other wrongs is valaid.

Luke’s argument rests on the idea that torture is different for its lack of democratic accountability, and the degree to which it violates the principals of liberal democratic society. To what extent is this true? First, it is helpful to establish if torture significantly threatens “moral disentigration”. The foundation upon which Lukes’ argument rests seems shakey in that, as he acknowledges, the use of torture in liberal-democracies has in some cases become systematic (Lukes 15). Indeed, he even qualifies that the alleged ‘penetration of liberal values’ has at many points not been so strong. It is possible that to some extent, liberal-democracies are deeply embedded with such values, but given the seeming willingness for some governments to engage in torture, it seems reasonable to presume there are situations in which the moral fabric of a liberal-democracy will not be threatened. Furthermore, a distinction can be made in regards to who torture is employed against. Even if we accept that torture is in some way deeply asynchronous with liberal values, a citizenry of a nation engaged in the practice of torture might excuse its use against those seen as the enemy. That is, while torture employed on nationals might arouse discontent, it might be used on people outside the state’s jurisdiction with considerably less public backlash. Via a process of othering — designating those to be tortured as not deserving of the same liberal considerations of fairness — a liberal-democracy can very well avoid undermining its notions of fairness concerning those it governs, as they themselves do not feel threatened by its practice.

If torture does not pose a significant threat of moral disentigration, the next question is whether or not it can be held democratically accountable. While it is true that torture is generally carried out in secrecy, and arouses some public discontent when exposed, one can easily enivision a situation in which the public might approve the use of torture in certain circumstances. Indeed, given the prevalence of torture in liberal democracies, one can infer that torture is perceived to be, in some circumstances, legitimate. Because of this, torture does not seem significantly different from other “vices of concealment”, for which there exist “mechanisms that substitute for open debate”. In terms of said mechanisms, Lukes considers the idea of torture warrants as advanced by Dershowitz unreasonable given that it involves making a utilitarian cost-benefit calculation around engaging in something that fundamentally violates one’s basic human rights. Although we can acknowledge that torture does indeed infringe upon said notions of liberal values of fairness, such a calculation seems to precisely encompass what is meant by a dirty hands problem: in which politicians or political structures engaging in torture know that that they are doing is wrong, yet do it out of percieved neccesity and ask for political absolution after the fact. As we have previously established, the threat torture poses to moral disentigration may not be so strong. Thus, it seems thattorture can be made democratically accountable.

All this is to say that given dirty hands reasoning, torture does not seem to be so unique as to neccesitate a separate set of rules. This is not to say however that torture should thus be considered acceptable as a method of interrogation or otherwise. If anything, the example of torture illustrates a logical extreme of dirty hands reasoning, which ought prompt us to reconsider its utility as a framework for evaluating political decisionmaking.

Works Cited:

• Shue, Henry. “Torture” Philosophy & Public Affairs 7, no. 2 (1978): 124-143.
• Lukes, Steven. 'Liberal Democratic Torture.' British Journal of Political Science 36, no. 1 (2006): 1-16.
• Walzer, Michael. 'Political Action: The Problem of Dirty Hands.' Philosophy & Public Affairs 2, no. 2 (1973): 160-80.