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.