The intrinsic incompatibility between Rule of Law and legalizing torture
Abstract. The aim of this essay is to provide an overview of the contemporary philosophical-legal debate, concerning the theme of the legalization of torture. Starting with an historical and philosophical perspective, it is highlighted that the instances proposed by the theorists supporting the introduction of forms of “legal torture” are far from and contrary to the foundational principles of modern legal systems. Moreover, the persistent presence of torture in human history it is nothing but a warning. Torture, in fact, is not only a “necessary object of criminal law”, but also an issue which “concerns us” and it is investigated by Philosophy, at least as much as by the Law.
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SUMMARY: 1. Prohibition of Torture: the enlightened lectio magistralis that has survived for centuries – 2. A “moderate measure of physical pressure”: from the Landau Commission to the Luhmann’s ticking bomb scenario. – 3. The dawn of the new millennium. – 4. When a man becomes a medium: the ticking-bomb scenario, self-defense and the torture warrants. The main argument: the ticking-bomb scenario. – 4.1. Self-defense: torture as a defensive reaction. – 4.2. The torture warrant: an ex ante justification. – 5. An inevitable slippery slope: “one, one hundred, one thousand”. – What do theorists of legalization of torture want to balance? – 7. Imperfect (inadmissible) analogies. – 8. The incompatibility of torture with the Rule of Law. The relation between evil and law. – 9. The “real effects” remind us (again) that legalizing torture is not possible.
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