21 Can. J. L. & Jurisprudence 149 (2008)
Torture and the Problem of Dirty Hands

handle is hein.journals/caljp21 and id is 149 raw text is: Torture and the Problem of Dirty Hands
Tamar Meisels
It is widely agreed among liberals that torture is a moral wrong, even within a just
war, as it is particularly degrading and humiliating even in comparison with actual
killing.' There is some disagreement among philosophers as to the characterization
of the precise evil that is torture. In his classic essay, Henry Shue argues that torture
violates the basic just war theory prohibition against attacking the defenseless.'
Utilitarian opposition to torture highlights the harm it causes, both directly and indi-
rectly, while a typical Kantian argues that what is essentially wrong with torture
is the profound disrespect it shows the humanity or autonomy of its victim.3 David
Sussman suggests that... [t]orture forces its victim into the position of colluding
against himself through his own effects and emotions, so that he experiences himself
as simultaneously powerless and yet actively complicit in his own violation.4
Michael Ignatieff argues that its use is totally anathema to liberal democracy as
it expresses the view that human beings are expendable.'
While we may disagree about precisely why we tend to draw the line at this par-
ticular evil, there has until quite recently been a sweeping consensus within liberal
democracies against the use of torture even in the course of a justified armed strug-
gle. Recently, however, with the rise of international terrorism there have been sug-
gestions that liberal democracies may actually be justified in resorting to the use
of torture against captured terrorists in order to divulge life saving information.
Amongst academics, such suggestions usually take a standard form of presenting
a vivid example in which the torture of a known terrorist is pitted against the
prospect of saving many innocent lives from violent death by terror.7 The inevitable
outcome, either implied or explicitly argued for, is a consequentialist, justification
of specific acts of torture! I am uninterested here in scrutinizing the consequentialist
I am grateful to Alan Dershowitz, David Enoch, Cecile Fabre, Guy Sela, and particularly to Jeremy
Waldron, for very useful comments on previous drafts of this paper.
1. Henry Shue, Torture (1978) 17:2 Phil. & Pub. Affairs 124 at 125-26. Michael lgnatieff, The
Lesser Evil-Political Ethics in an Age of Terror (Edinburgh: Edinburgh University Press, and
Princeton, NJ: Princeton University Press, 2004) at ch. 5 at 137.
2. Shue, supra note I at 130.
3. David Sussman, What's Wrong with Torture? (2005) 33:1 Phil. & Pub. Affairs I at 14.
4. Sussman, ibid. at 4.
5. Supra note I at 143.
6. Cf. John H. Langbein, The Legal History of Torture in Sanford Levinson, ed., Torture-A
Collection (Oxford and New York: Oxford University Press, 2004), ch. 5 at 93. For criticism of
the pro-torture arguments voiced by lawyers and officials of the Bush Administration, see Jeremy
Waldron, Torture and Positive Law (2005) 105 Colum. L. Rev. 1681 at sec. 1-lI at 1688-1717.
See also Steven Lukes, Liberal Democratic Torture (2005) 36 British J. Pol. Science I at 5-9.
7. Jean Bethke Elshtain, Reflection on the Problem of 'Dirty Hands' in Levinson, supra note
6 at 78.
8. E.g., Shue, Torture, supra note I at 141. Some justifications are not primarily utilitarian but
argue that consequences come in to play a secondary role, at least at some cataclysmic point.
See, for example, Michael Moore's, soft deontology in Michael Moore, Torture and the
Balance of Evils (1989) 23 Israel L. Rev. 280 and Kai Nielsen, There is No Dilemma of Dirty
Hands in Paul Rynard & David P. Shugarman, eds., Cruelty and Deception-The Controversy
Over Dirty Hands in Politics (Peterborough. ON: Broadview Press, 2000) ch. 8.

Canadian Journal of Law and Jurisprudence

Vol. XXI, No.I (January 2008)

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