Liberal Democratic Torture

2005 ◽  
Vol 36 (1) ◽  
pp. 1-16 ◽  
Author(s):  
STEVEN LUKES
Keyword(s):  
Liberal Democracy ◽  
Dirty Hands ◽  
Liberal Democracies ◽  
Liberal Democratic ◽  
Core Elements ◽  
The Absolute ◽  
The Law ◽  
Torture Memos ◽  
Lesser Evil

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.

Beyond Durkheim: A Comment on Steven Lukes's ‘Liberal Democratic Torture’

2007 ◽  
Vol 37 (3) ◽  
pp. 567-570 ◽  
Author(s):  
GEOFFREY BRAHM LEVEY
Keyword(s):  
Civil Liberties ◽  
Emile Durkheim ◽  
Dirty Hands ◽  
Liberal Democracies ◽  
Liberal Democratic ◽  
The Individual ◽  
The Right ◽  
Key Aspects ◽  
Do The Right Thing ◽  
Lesser Evil

In a recent article, Steven Lukes offers a thought-provoking reflection on the apparently growing resort to torture by liberal democracies today. Professor Lukes aptly asks whether ‘torture is just another case of dirty hands in politics?’ – that is, the idea that in order to do the right thing or achieve the best public outcome in the circumstances one cannot avoid committing a wrong, such as deceit or cruelty. His answer is that torture differs from other cases of dirty hands in that it cannot be made ‘liberal-democratically accountable’, thus raising the question of ‘how should it be addressed in liberal democracies?’ Here he suggests we can learn from the sociologist Emile Durkheim and, especially, his conception of modern societies as being held together by a ‘religion of individualism’. Allowing state officials to violate basic rights of the individual thus profanes against the religion and threatens the ‘moral disintegration’ of society itself. Lukes argues that Durkheim's account helps us see both the folly in ‘certain ways of thinking and talking about torture’, such as construing it as a ‘lesser evil’ given the competing claims of risk and security, and the damage that liberal democracies inflict on themselves, in responding to the threat of terrorism, by so readily compromising their own principles.There is much that is appealing in Professor Lukes's remarks. I also share his concern about the current erosion of civil liberties in liberal democracies. I wish, however, to raise some doubts about three key aspects of his argument: that torture is not susceptible to liberal-democratic accountability; that the ‘Durkheimian argument’ effectively precludes the practice of torture; and that we cannot rightly speak of torture as a ‘lesser evil’.

Does Liberal Democracy Presuppose a Cultural Nation? Four Arguments

2002 ◽  
Vol 96 (3) ◽  
pp. 495-509 ◽  
Author(s):  
ARASH ABIZADEH
Keyword(s):  
Social Integration ◽  
National Culture ◽  
Liberal Democracy ◽  
Public Culture ◽  
Normative Theory ◽  
Democratic Politics ◽  
Liberal Democracies ◽  
Democratic Deliberation ◽  
Liberal Democratic ◽  
Shared Norms

This paper subjects to critical analysis four common arguments in the sociopolitical theory literature supporting the cultural nationalist thesis that liberal democracy is viable only against the background of a single national public culture: the arguments that (1) social integration in a liberal democracy requires shared norms and beliefs (Schnapper); (2) the levels of trust that democratic politics requires can be attained only among conationals (Miller); (3) democratic deliberation requires communicational transparency, possible in turn only within a shared national public culture (Miller, Barry); and (4) the economic viability of specifically industrialized liberal democracies requires a single national culture (Gellner). I argue that all four arguments fail: At best, a shared cultural nation may reduce some of the costs liberal democratic societies must incur; at worst, cultural nationalist policies ironically undermine social integration. The failure of these cultural nationalist arguments clears the way for a normative theory of liberal democracy in multinational and postnational contexts.

Liberal Democracy: One Form or Many?

1992 ◽  
Vol 40 (1_suppl) ◽  
pp. 130-145 ◽  
Author(s):  
Alan Ware
Keyword(s):  
Liberal Democracy ◽  
Cultural Context ◽  
American Exceptionalism ◽  
Liberal Democracies ◽  
Liberal Democratic ◽  
Subsequent Section ◽  
The One

This article examines whether there are significant differences between liberal democracies which warrant them being classified as different forms of democracy. The article begins by outlining six features of liberal democracy which are crucial in understanding how this type of government works. The subsequent section examines the origins of liberal democracy and considers the relevance of arguments derived from American ‘exceptionalism’. Attention is then focused on liberal democratic governments today – by reference to Lijphart's distinction between ‘majoritarian’ and ‘consensus' democracies. Finally, the article looks at whether the form of liberal democracy is changed substantially when it is transplanted into a cultural context different from the one in which it originated. The general conclusion is that there is no case for identifying different forms of liberal democracy.

Sliding off Torture’s Halo of Prohibition

2016 ◽  
Vol 17 (2) ◽  
pp. 227-239
Author(s):  
Adam Henschke
Keyword(s):  
United States ◽  
Cognitive Bias ◽  
War On Terror ◽  
Large Scale ◽  
The United States ◽  
The Other ◽  
Domestic Terrorism ◽  
Liberal Democracies ◽  
Liberal Democratic ◽  
Lesser Evil

Before the Al Qaeda attacks in the us, it was hard to find support for torture in the liberal-democratic world. However, post 9/11 torture (or at least something very close to torture) was used by liberal democracies like the United States (us). Practices like water-boarding were justified by reference to the war on terror. Underneath this lies a reasoning that we have two options, some large scale act of violence and torture, and that torture is a lesser evil, exemplified by ‘ticking time bomb’ scenarios – if you have two options, both bad, but one is far worse than the other, the lesser evil seems a reasonable decision. This article proposes that there is a moral danger through slippage from recognising torture as a generally justified action. It explains this slippage by reference to the ‘halo effect’: a cognitive bias in which something is judged as permissible or good through association with non-relevant facts. Given the current risks of domestic terrorism, the article argues that we need to learn from the us example post 9/11 to ensure that we avoid justifying uses of torture in non-exceptional circumstances.

Conclusion

2018 ◽  
pp. 363-368
Author(s):  
Anushka Singh
Keyword(s):  
Free Speech ◽  
Legal Protection ◽  
Freedom Of Speech ◽  
Political Speech ◽  
Liberal Democracies ◽  
Liberal Democratic ◽  
Judicial Discourse ◽  
Political Speeches ◽  
The Law ◽  
The Right

The life of a law exists both within and beyond the statute books and courts’ interpretations. This assertion has been made in this work in the exploration of the journey of the law of sedition primarily at three levels—the first concerns itself with analysing the language of the law of sedition; the second, with studying the judicial discourse on sedition; and the third pertains to interrogating the quotidian aspects of law as it unfolds on the ground. While this work offers a focused study on Indian democracy at all these levels, it has broadened its scope by including experiences from the liberal democracies of the west in its analysis. This work has used sedition as a lens to probe the fate of political speech in liberal democracies which claim to give constitutional and legal protection of varying degrees to the right to free speech, of which political speech and the right to dissent are extensions. Despite the claims to protection, the working of such democracies has shown that the freedom of speech in relation to political speeches particularly has always been in danger. The liberal-democratic space has continued to shrink for dissident voices despite the progression of liberal democracies towards free speech jurisprudence and annulment or modification of laws related to sedition....

Torture and Liberal Democracy: Response to Levey

2007 ◽  
Vol 37 (3) ◽  
pp. 571-572 ◽  
Author(s):  
STEVEN LUKES
Keyword(s):  
Liberal Democracy ◽  
Majority Rule ◽  
Democratic Accountability ◽  
Political Systems ◽  
Deep Insight ◽  
Dirty Hands ◽  
Liberal Democracies ◽  
Hands On ◽  
The Government ◽  
The Ideal

I am really grateful to Geoffrey Brahm Levey for his critical comments, which push me to try to make clear, first, why I claim that torture is not susceptible of democratic accountability in liberal democracies; secondly, where I believe the residue of deep insight in the Durkheimian argument lies; and thirdly, why I think we cannot rightly speak, or even whisper, of torture as a lesser evil.Torture and democratic accountability. Levey argues that torture can be rendered collectively accountable and that it is not different from other cases of political dirty hands on the democratic front. It could be subject to judicial oversight, for example, by ‘torture warrants’ in the manner of Dershowitz, or by the government or relevant minister being held accountable after the fact. He adds that states do not conceal torture because it is ‘inherently anti-democratic or unpopular’; on the contrary, today it appears ‘only too popular and open to democratic endorsement’.But I do not mean to equate democracy and popularity. Democracy is not simply majority rule; majorities can tyrannize over minorities and individuals, who need protection on democratic grounds. ‘Democracy’ names an ideal and we could either, like Schumpeter, revise the ideal in a ‘realistic’ direction or, like Dahl, while retaining the ideal as background, characterize real political systems as approximations to it, using other terms, such as ‘polyarchy’. Either way, one of the things which makes a modern state more rather than less democratic is the extent to which it incorporates institutional arrangements and mechanisms that secure a range of basic rights, protecting all, especially the most vulnerable, from arbitrary abuses of power.

scholarly journals Security in the balance: How Britain tried to keep its Iraq War secrets

2019 ◽  
Vol 51 (1) ◽  
pp. 77-95 ◽  
Author(s):  
Owen David Thomas
Keyword(s):  
Liberal Democracy ◽  
Iraq War ◽  
Legal Discourse ◽  
Freedom Of Information ◽  
Democratic Accountability ◽  
Public Interests ◽  
Liberal Democratic ◽  
The Law ◽  
British State ◽  
State Secrets

State secrecy is incompatible with the values of liberal democracy if there is no publicly reasonable justification for the concealment. So how can a liberal democracy continue to keep state secrets amidst suspicion that no such justification exists or that, worse, those secrets contain evidence of wrongdoing? This article maps and critiques the justificatory strategies that were used by the British state to refuse to disclose secret material related to the 2003 Iraq War, despite widespread accusations of hidden deception and illegality. Through an analysis of the legal discourse that underpins freedom of information (FOI) and disclosure protocols, the article shows how the law regulates disclosure through a metaphorical ‘balance’ of public interests. This balance, however, is no balance at all. It is profoundly one-sided because security only features on one side. The law explicitly recognizes that disclosure can create insecurity for public interests, but lacks any recognition of the opposite: the insecurity of secrecy. Rather than security trumping liberal values, this law allows enduring secrecy to be framed, paradoxically, as a means to secure liberal democratic accountability. The significance of this claim is far-reaching as FOI laws in many other countries employ a similar harm-based, one-sided justificatory strategy.

Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy

2014 ◽  
Vol 27 (1) ◽  
pp. 99-122 ◽  
Author(s):  
Liav Orgad
Keyword(s):  
Rule Of Law ◽  
Liberal Democracy ◽  
Added Value ◽  
Legal Institution ◽  
Legal Analysis ◽  
Historical Evidence ◽  
Liberal Democracies ◽  
The Rule Of Law ◽  
The Law ◽  
Loyalty Oaths

The Article examines the wisdom of loyalty oaths as a legal institution in contemporary liberal democracies. First, using comparative analysis the Article highlights the growing global interest in loyalty oaths. Second, based upon historical evidence the Article explores the functions of loyalty oaths and assesses their role. Third, through using legal analysis the Article challenges the validity of loyalty oaths and identifies three fundamental problems related to their content and form: the rule of law, freedom of conscience, and equality.The Article reveals liberal concerns associated with the added value of the duty of “loyalty to the law” (allegiance), as distinct from the duty to “obey the law” (obedience). It presents an ongoing tension between loyalty and liberalism and argues that the more loyalty liberal democracies demand, the less liberal they become. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests that liberal states should abandon them as a legal institution.

Hubris, constitutionalism, and “the indissoluble unity of the Spanish nation”: The repression of Catalan secessionist referenda in Spanish constitutional law

2019 ◽  
Vol 17 (3) ◽  
pp. 943-969 ◽  
Author(s):  
Hèctor López Bofill
Keyword(s):  
Criminal Law ◽  
Liberal Democracy ◽  
Constitutional Law ◽  
The Political ◽  
Liberal Democracies ◽  
Spanish Constitution ◽  
Liberal Democratic

Abstract This article analyzes the struggles of the Catalan government to organize a referendum on secession and the constitutional framework invoked by the Spanish central authorities to prohibit it. The repression of secessionist referenda within the Spanish constitutional framework triggers several problematic questions concerning the role of constitutional supremacy in handling subnational secessionist challenges developed under a pacific and democratic framework. The article offers a comparison between the Spanish-Catalan case and other examples of secessionist referenda within liberal democracies, underscoring that the Spanish solution of repressing such referenda through criminal law is unique in the liberal democratic context. The article also offers a description of the political, historical, and legal circumstances surrounding the Spanish central authorities’ actions that explains the Spanish constitutional response to both the Catalan Consultation held on November 9, 2014, and the referendum on Catalan independence held on October 1, 2017. The article concludes by arguing that the prohibition of the Catalan referendum initiatives on independence and their subsequent prosecution through criminal law may cripple the basic pillars of the Spanish liberal democracy designed under the 1978 Spanish Constitution.

Sign in / Sign up

Export Citation Format

Share Document