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I cannot possibly delve into this aspect of the dirty hands issue in this connection, nor am I convinced that there is reason to do so here.Nevertheless, it is worth pointing out that certain aspects of Dan-Cohen’s discussion of dirty hands in law may have some bearing on the issue of legislation about torture.
“Perhaps we tend to associate dirty hands with politics because in political life the good to be attained tends to be framed in general terms and the wrongs committed highly specific: Spreading freedom around the world social justice, the Defense of the Realm, the Cause of the Revolution, The Glory of the Republic...” Lukes, ‘The distinction between act and rule utilitarianism is admittedly problematic and depends on a theory of rules which disallows the endless addition of new (kinds of) detail as exceptions which are nonetheless part of the rule itself. Israeli Supreme Court Justice Barak states in his Judgment on the interrogation methods Applied by the GSS, September 1999 that “necessity” can be invoked retroactively by agents of the state defending themselves against charges of torture. Adopted by the General Assembly on December 1975 [resolution 3452 (xxx)]. Admittedly, the distinction between justifications and excuses as applied in the case of actions supported by a legal policy to excuse them raises a certain difficulty.
How to frame such a rule for rules is probably impossible.’ I am grateful to Richard Bronaugh for this comment. Or perhaps Dershowitz, Keyes and Walzer are debating torture not only within an imperfect world and in a non-optimal moral situation, but also in the framework of a totally non-ideal type of moral theory. However, the only way to save B is to transplant all of A’s organs into B. Excusing the state official for torturing in extremis is justified as a policy or practice in law, and so, it could be argued that the act of torturing is itself justified legally—it is all right to excuse the wrongdoer, perhaps required.
Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness.
~ George Orwell The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum—even encourage the more critical and dissident views.
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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.