The Prohibition of Torture between Human Dignity and Sovereignty

Abstract

This essay explores the philosophical sources of the modern prohibition of torture by tracing different systematic steps in the difficult moral struggle against torture. It will be shown that the reluctance to embrace an outright ban on torture does not originate only from ancient convictions but also from the internal tensions between sovereignty and freedom in the context of the legitimation of the modern state. Starting with the universally empathic approach of 16th century’s humanists the moral condemnation of torture shifted its focus successively from matters such as pity or the protection of bodily integrity to the recognition of human self-determination. During the Age of Enlightenment, the ambiguity of the modern concept of the state is even more clearly revealed. Political arguments against torture are put forward by utilitarians only stressing, again, the futility of bodily pain. Kant and Hegel, however, though developing human dignity as a matter of principle stick to retribution and the strict enforcement of the rule of law. Their approach overemphasizes certain notions of sovereignty and leads to perplexing consequences. This can be shown also with regard to the actual debate concerning exceptions from the general prohibition of torture.