Normalizing the State of Exception
Elgar Monographs in Constitutional and Administrative Law series
Chapter 7: Normalizing torture as a technique of governing: What 'the exigencies of war' demand?
In awe of the sacred or for fear of demons, ësavagesí avoid the taboo.It is also fear which dictates that neurotics obey the forbidden. Those who deem themselves civilized may prefer the guidance of convention or wisdom to respect what is taboo or to approach the unfamiliar with caution.Torture might qualify as both the unfamiliar and a taboo. Until recently torture, in Freudian terms, was not ëgenerally accessibleí, being removed from public scrutiny as well as surrounded by the aura of the dangerous and strictly prohibited. Even legal norms declaring this practice unlawful dared not spell out the law of torturein detail, as if the taboo even prohibited semantic approaches or defended its religious dimension. In this last chapter I look at the torture debate and the practice of torture in the United States and at the discourse on torture in German legal academia. I discuss three common misunderstandings of the phenomenon that also shape the recent controversies. Then I wish to introduce the structural elements of the different paradigms of torture and focus on those features of the ënew tortureí that have been claimed to distinguish it from its evil ancestry: the rescue motive and the close relationship to law. The imaginary novelty of ërescue tortureí is also unmasked in the context of legal doctrines that are meant to guide in the proportionate application of ërescue tortureí. The final discussion will focus on strategic and semantic practices of camouflaging violations of the taboo.
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