Introduction: Can the Law Sanction Pain?
The issue of torture in a modern constitutional state is not just a matter of ethics, but a foundation of our civilization. This article analyzes why the absolute prohibition of torture is considered an archetype of the legal system that must not be violated even in the face of extreme threats. Readers will learn how philosophy, psychology, and history expose attempts to legalize violence and why the instrumentalization of law leads to its inevitable erosion. We will explore the mechanisms of dehumanization and why the state must protect individual dignity without exception.
The Prohibition of Torture as a Foundational Identity and the Debate over Ethical Boundaries
The prohibition of torture is an archetype of the rule of law—a moral emblem without which the entire system loses its legitimacy. In the philosophy of law, two approaches clash: deontology, based on the Kantian imperative, which forbids treating humans as tools, and utilitarianism, which allows for a "lesser evil" to save the majority. Although the law provides for justification mechanisms (excluding wrongfulness in cases of necessity), these cannot become a systemic legalization of torture.
In the landmark case of Gäfgen v. Germany, the European Court of Human Rights ruled that the absolute prohibition has no "escape hatch." Even the threat of torture (so-called Rettungsfolter—rescue torture) constitutes inhuman treatment. This judgment confirmed that the noble intention of saving lives does not justify barbaric methods, and human dignity remains inviolable regardless of the perpetrator's guilt.
The Slippery Slope: Why Exceptions Eradicate Standards of Protection
Alan Dershowitz’s concept of judicial "torture warrants" was intended to regulate pain, but in practice, it serves as a project for "laundering evil through the laundry of legalism." Science and psychology unequivocally debunk the myth of torture's effectiveness—pain distorts memory, and the victim says whatever will end the suffering, not what is true. Introducing even a single exception triggers a slippery slope effect, where bureaucratic gravity ensures that extraordinary procedures quickly become the norm.
An example of "torturing the law" was the American torture memos, which surgically narrowed the definition of torture to permit brutal interrogation techniques. This reveals a deep rift between the European concept of dignity, a sacred totem since World War II, and American pragmatism, which measures the value of an idea by its outcome. Such instrumentalization destroys the legal ethos, transforming the lawyer from a guardian of values into a rhetorical mechanic of power.
Dehumanization and Euphemisms: The Psychological Mechanism of Violence
Torture requires the prior dehumanization of the victim. Psychological mechanisms described by Zimbardo and Milgram prove that authority and roles can turn ordinary people into torturers. Institutional violence is masked by euphemisms, such as "enhanced interrogation techniques," which desensitize consciences and normalize cruelty within bureaucratic structures. The law must counteract this by protecting the "face" of every human being.
The philosophy of Emmanuel Levinas reminds us that ethics is born in the encounter with the face of the Other, which torture cannot erase. Instead of ex ante legalization (in advance), a constitutional state should rely on ex post accountability. An official acting in a tragic situation must face a court's judgment, which will evaluate their actions individually. Only the absence of official procedures for inflicting pain protects the state from becoming a hostage to its own bureaucracy of violence.
Summary: The Law as a Shield, Not a Sword
The absolute prohibition of torture is a boundary that, once crossed, marks the end of the rule of law. Every attempt to "civilize" cruelty through legal statutes ends in the instrumentalization of the human being and the erosion of moral foundations. A lawyer must remain a guardian of humanism, remembering that the law exists for the person, not the other way around. In the labyrinth of state necessity, it is easy to lose one's humanity—which is why the absolute must remain absolute, without exceptions or euphemisms.
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