is the theoretical framework of moral development initially suggested in the work of Piaget (29) and more fully developed by Kohlberg and Kramer (30). If one accepts that humanistic values become organized into moral systems which are subsequently codified in legal documents, then one can reverse the process and unpack these concepts. That is, legal documents can be understood in terms of their underlying moral structure which rests upon humanistic values. Kohlberg and Kramer (31) through extensive cross cultural research have developed a model of moral development which is useful in analyzing the practical problems in human rights implementation. Piaget (32) found through his study of childhood development that moral judgment, the practice and consciousness of rules, progresses in predictable and inevitable stages. Although all individuals do not progress at the same rate or reach the same ultimate stage of moral judgment, they all progress through the same order of irreversible sequential stages. Kohlberg and Kramer (33) have demonstrated that different social classes and different societies reach and customarily encourage different modes of moral analysis even though values such as << human liberty >> are common to all. Three levels each containing two stages comprise the Kohlberg and Kramer system (34). At the base is the Pre-Conventional Level consisting of Stage 1: The punishment and obedience orientation,and Stage 2: The instrumental relativist orientation. In the former stage, goodness or badness is determined by the physical consequences of the act. There is no underlying moral order here supported by punishment and authority but only the consequential punishment itself. Slightly more advanced is the second stage in which human relations are viewed in a physically pragmatic way involving a hedonistic reciprocity. Still at this level no abstract values such as justice, loyalty, or human dignity are involved. At the Conventional level, « maintaining the expectations of the individual's family. group, or nation is perceived as valuable in its own right, regardless of immediate and obvious consequences » (35). Stage 3: The interpersonal concordance or « good boynice girl » orientation is the first of the two Conventional stages. The Conventional level culminates in Stage 4: The law and order orientation involving fixed rules, respect for authority, and the maintenance of the social order for its own sake. The authors have demonstrated that both cross culturally and across lines in the United States, moral development usually fails to progress beyond these Conventional stages (36). The third level is designated « Post-Convention, Autonomous, or Principled Level » and contains Stage 5: The social-contract legalistic orientation and Stage 6: The universal ethical principle orientation (37). At Stage 5, individual rights and standarsich have been critically examined and agreed to by the entire society define right action. Rights are matters of values and those values are clearly viewed in relativistic terms. Free agreement and contract are the binding elements of obligation. Changing the law on the basis of rational consideration of the social order is quite possible and there are procedural rules for reaching consensus. This is the official» level of moral functioning of the American government and Constitution. « Finally, Stage 6 defines right on the basis of individual conscience in accord with self-chosen ethical principles which are universal, consistent, and logically comprehensive. « At heart, these are universal principles of justice, of the reciprocity and equality of the human rights, and of respect for the dignity of human beings as individual persons » (38). These are abstract ethical principles such as those contained in the Preamble to the UN Charter (39). Only transiently are a relatively few individuals capable of operating at this level although a universal ethical sense is recognized by contemporary cultural anthropologists (40). D. - Social Values at the World Community Level Consideration of the position of States and supranational organizations in relation to these stages of moral development demonstrates the asynchronous development of the concept of fundamental personal liberty. As Stone (41) suggests, the path of human survial is an untidy process of compromise and adjust ment. Unlike the higher levels of moral development, the Conventional level, in particular Stage 4, consists of fixed rules and the rigid maintenance of the social order. Stage 3 is equally rigid in that the stereotypical majority is seen as « natural » order. Kholberg and Kramer (42) have demonstrated that most people function at Stages 3 and 4. Therefore, one can see clearly the relevance of the emphasis of McDougal, Lasswell and Chen on the use of persuasion rather than coercion both in domestic and in international decision making. These authors recommend that when a change of values is desirable, the members of the group should be persuaded to select an alternative mode of conduct maximizing the probability of gain at low cost (43). Their study focused principally upon the State « decision-maker» in the World Community. They emphasized that this authoritative figure must act in harmony both with the fundamental objectives. of the community for which he or she speaks and with genuine shared expectations of the international community (44). This requirement translates into the context of torture as an admonition against interferences with individual integrity that violate fundamental community objectives or the genuine shared expectations of the international community. The rigidity of the Conventional stages of moral functioning is characteristic of most individuals throughout the world. However, McDougal's constitutive process which shapes and is shaped in turn by authoritative decision making allows for change by means of uniquely innovative and socially responsive individuals. While the press of the human condition is toward higher levels of moral development, the inertia of the individual acts as an effective governor on the rate of development. In sequential stages of development, no stage may be skipped altogether but the process itself may be accelerated. It is to this acceleration that McDougal's concern bears great relevance. To that extent it is valid to conclude that world community expectations as reflected by individual and national concern with torture rises to the level of international cognizance. E. Torture, Values and the World Community · The foregoing discussion has demonstrated that values begin at the individual level, evolve into greater commonality and achieve recognition as social values which are then embodied into laws or other collective manifestations. This evolution then progresses beyond the national level to attain ultimately the international level when the commonality factor is shared by multiple world societies. The practice of torture represents a value which, reflected in the laws of various societies by its prohibitions explicitly or implicitly in the laws of virtually all states (see Appendix I). Accordingly, it is appropriate to focus on rejection of the instrumental or conduct-oriented value of torture and the rise of the contrary values which reject the practice of torture. At the international level, such values may attain legal effect by becoming general principles of international law accepted by civilized nations. Such general principles are evidenced by the behavior and attitudes of nations on the domestic plane and on the international plane. On the national plane, such behavior and attitudes may be reflected in constitutions, laws and judicial decisions (see Appendix I and II and Section VI C2). International behavior and attitudes are reflected in treaties, United Nations declarations or resolutions, decisions of the International Court of Justice and writings of noted publicists (see Section VI, especially C1 and Appendix II). The express or implied prohibition of torture in treaties adhered to by states covering all geographical areas of the world are the expression of consciousness of internationally perceived social values. Thus, the value of individual integrity has been placed above any rationalization of public order where the conduct of torture is concerned. It is obvious that torture is in conflict with the value of individual integrity. The existence of this value is incontrovertable. It is manifested in religious doctrines, philosophies, cultural forms, national constitutions, laws, and jurisprudence, in international treaties, custom, general principles of law recognized by civilized nations, resolutions and declarations of the United Nations and in the writings of noted scholars. The contradition between torture and this value is undeniable. Less obvious, perhaps, is the contradiction between torture and other major social values such as: the integrity of the legal process and the integrity of the political process. These contradictions are somewhat obscured by the claims of advocates of the practice of torture that torture is necessary for the workings of legal process or necessary to preserve the political process. Thus, they argue that torture serves a role in protecting social values against those who seek to destroy them. An examination of these arguments reveals that, rather than protecting these social values, the practice of torture is actually destructive of them. The infliction of torture is a drastic interference with individual integrity. Less drastic interferences with individual integrity, such as arrest and imprisonment, are resorted to by authorities acting on behalf of society only where such measures are prescribed by criminal law. It is reasonable to assume that a more drastic interference with individual integrity would require a basis at least as compelling. It is therefore appropriate to consider the basis provided by criminal law for interference with individual integrity. In all systems of criminal law two values are asserted as guiding the formulation of proscriptions and the application of sanctions. These are the values of the integrity of the legal process and of integrity of the existing political process by which society governs itself, either as preservation of the statu quo or as preservation of the political process by which transition is to be pursued. 1.- Integrity of the Legal Process Throughout the history of the twenty-one recorded civilizations of the world (45), every society has striven to establish a legal process whose vitality was essentially linked to the integrity of that process (46). Although preservation of integrity of the legal process may be related to preservation of the integrity of the individual, it is also a distinct issue meriting independent consideration. Thus, most legal systems would rather allow a guilty person to go free than to risk punishing an innocent person in doubtful cases, and many legal systems deny admissability to evidence obtained through particularly abusive means or altogether prohibit self-incrimination (47). Therefore, the use of torture to secure a conviction by obtaining otherwise unavailable incriminating evidence is usually contrary to the law and in addition thereto, it violates the integrity of the legal system (48). The reason is that the integrity of the legal system is indispensable to its credibility and acceptance and thus ultimately to its survival as the effective means of resolving inter-personal and social conflicts. Accordingly, torture cannot be rationalized as a means of sustaining the legal system because it is violative of the integrity of the legal system. 2. Integrity of the Political Process Invariably any system of government whatever its form either seeks to perpetuate itself or establishes ways and means for its evolution (49). Accordingly, the use of torture to alter such an existing political process violates its integrity in addition to violating certain laws pertaining thereto. This applies to instances where torture is used to preserve or alter the political process. Thus torture constitutes a depradation of that process no matter for what purpose or objective it is used. The integrity of the political process is a social value which torture affects and violates in much the same way as it affects and violates the integrity of legal process. Arguments against torture and rationalizations for its practice are frequently presented in the form of a grading or hierachy of conflicting values. Thus it is advanced by opponents of torture that the values of personal integrity ranks in priority above all other values and should therefore be inviolate. A contrary position holds that social interests and public order tower above all personal matters. Wherefrom the conflict between the two positions when those who believe that the supremacy of the collective interest however perceived justifies under certain circumstances the resort to such « necessary » sick means as torture. The dilemma is not new in law. The most common examples |