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When the state becomes the monster: Law, power, and the legalization of torture
In Brief
- The law presents a profound paradox: it is essential to prevent society from descending into savagery, yet it can be meticulously crafted by the state to become an instrument of oppression and cruelty.
- Enlightenment thinkers like Cesare Beccaria systematically condemned torture, arguing that such cruelty is logically fallacious and disproportionate, and that lenity is the hallmark of stable governance.
- When political power is corrupted, statute law becomes 'license' for the powerful, allowing governments to expand definitions of crime (like treason) to silence dissent and sacrifice individuals to the state's perceived needs.
- The principle of 'Crimes against Humanity' asserts that the international community can intervene when a state's abuse of its own people 'shocks the sense of mankind,' challenging the absolute authority of state sovereignty.
Main authors
Mankind must have laws and conform to them, lest life descend to the level of the most savage beast [1]. This foundational principle of civilization posits law as the bulwark against chaos and violence. Yet, history and political theory reveal a profound paradox: the very legal structures designed to protect humanity can be twisted into instruments of oppression, with the state itself becoming the perpetrator of humanity's gravest crimes [2]. The solemn formalities of justice can become a mere cloak for tyranny, a secret language concealing the sword of despotism [3]. This transformation of law from guardian to aggressor raises a critical question: how and when does state policy license acts of extreme cruelty, such as torture, turning a society's legal code into a mechanism for its own debasement?
The tension lies between the sovereignty of the state and the existence of universal human rights. A government's treatment of its own citizens has historically been considered an internal affair. However, a countervailing principle has emerged in international law, suggesting that when a state treats its people with a cruelty that 'staggers humanity,' it forfeits this immunity [4]. The development of concepts like 'Crimes against Humanity' holds that individuals responsible for systematic breaches of law can be held accountable, even if they did not personally commit the acts [5]. This creates a global framework where domestic policy can be subjected to international scrutiny, challenging the notion that a state has an absolute right to legislate as it pleases, regardless of the human cost [6].
Exploring this conflict requires an examination of the legal architecture that enables state-sanctioned cruelty, the philosophical justifications marshaled to defend or oppose such practices, and the international response when a state’s actions become intolerable. From the critiques of Enlightenment thinkers who found it necessary to argue against torture at their own peril [7], to modern accounts of state agents perpetrating inhuman acts [8], the line between a protective state and a despotic one is perpetually contested. The law can either serve to enshrine human dignity or to codify its violation, with the choice often hinging on whether policy is guided by justice or by power [9].
The legal architecture of tyranny
The state, far from being a benign representative of the people, can operate as the 'coldest of all cold monsters,' using its power to lay snares for the populace under the guise of governance . When political power becomes corrupted, particularly in a despotic system, the law ceases to be a neutral arbiter and becomes a primary tool of oppression [10]. Such a government can employ 'cruel formalities of justice' not to discover truth, but to legitimize its own violence and sacrifice citizens to the 'insatiable idol of despotism' . This corruption is exemplified by laws that are inherently unjust, such as those inflicted upon a minority that has been denied the right to participate in their creation [11]. In these systems, the state’s power is used to enforce privileges for the powerful, making law itself a form of license that is bought and sold .
The mechanisms of legal abuse are often embedded within procedural rules and judicial discretion. The eighteenth-century jurist Cesare Beccaria identified how torture was rationalized as a necessary tool in cases where proof was difficult to obtain, such as adultery or sodomy, effectively presuming guilt where innocence could not be conclusively proven [12, 13]. This practice rests on the inhuman maxim that in the most atrocious crimes, lesser evidence is sufficient and a judge may even transgress the law to secure a conviction [14]. Such principles stand in stark opposition to the idea that punishments must be strictly proportioned to the crime [15]. By allowing judicial discretion to expand in the face of heinous allegations, the law creates a pathway for arbitrary cruelty, sacrificing the individual to the state's perceived need for order or vengeance.
In its most extreme form, this legal degradation leads to a state where the sphere of criminality expands to encompass all forms of dissent. A government can extend the law of treason to cover mere words, and eventually, even silence or a look of disapprobation can become a state crime [16]. This is the endpoint of a political philosophy that, according to Edmund Burke, is fundamentally subversive of all human happiness: the position that a body of men has the right to make any laws they please, independent of the inherent quality or justice of the laws themselves . When policy and state preservation are invoked to justify any action, the constitution itself is impeached and the law becomes an instrument not of order, but of terror . A violent policy, however, cannot be a lasting one, as the state's reliance on extreme remedies eventually exhausts its own authority [17].
Justifications and condemnations of state cruelty
States have historically justified their right to violence as an extension of the right to self-preservation [18]. Just as an individual may kill in self-defense, a state may wage war or employ harsh internal measures to ensure its own survival . Some legal frameworks have even sanctioned extreme punishments by framing them as earthly anticipations of divine vengeance, reserved for criminals whose hearts are so hardened they are considered impenetrable to law and morality [19]. This perspective, often rooted in older, more punitive traditions, once took delight in cruel and unusual punishments, viewing crimes against man as secondary to crimes against a divine or state-imposed order [20]. This logic is seen in historical policies that prescribed only slight punishment for murdering a slave, prioritizing the social order over what was acknowledged to be the 'apparent rights of humanity' [21].
Beginning in the Enlightenment, a powerful counter-argument emerged that systematically dismantled the justifications for state cruelty. Thinkers like Beccaria highlighted the profound risks and logical fallacies of torture, noting that in any society where most people respect the law, the probability of torturing an innocent person is greater than that of torturing a guilty one [22]. He further questioned the very premise of using physical pain—a sensation—to address a moral sentiment like infamy, deeming such practices an abuse that should not be tolerated . The era marked a shift where arguing against torture was no longer just a philosophical exercise but a bold and necessary act of political courage . This critical spirit championed lenity as a feature of moderate, stable governments, contrasting it with the 'horrid severity' that characterizes despotisms [23].
The most potent opposition to state-sanctioned torture and cruelty is often grounded in the indispensable value of freedom [24]. When faced with slavery or absolute oppression, resistance becomes a moral duty, and torture may be the price that must be dared to achieve liberty . This perspective recasts acts against a tyrannical state not as crimes, but as necessary struggles for human dignity. An unjust state is seen as fundamentally corrupt, leading to the radical conclusion that 'good men must not obey the laws too well' [25]. The conflict thus transcends legal debate and becomes a struggle over the very purpose of society: whether it exists to secure the power of the state or the freedom of the individual.
State failure and the international imperative
A state fundamentally fails in its duties when its own agents become the perpetrators of violence, and its institutions neglect to investigate or prevent cruel, inhuman, or degrading treatment . This breakdown of the rule of law can leave citizens without any recourse when they are beaten, robbed, or lynched, as the very state systems designed to provide redress become unresponsive or complicit [26]. Such failures are not always accidental; they can be the result of deliberate policy that prioritizes a particular social or political order over the lives and safety of a segment of its population . This represents a complete inversion of the state's purpose, where the protectors become the predators and the law offers no shield.
In the face of such failures, the principle of international humanitarian intervention provides a potential, albeit complex, remedy. The concept, which has long been part of the law of nations, asserts that the global community has a right—and perhaps a duty—to act when a state's abuse of its people 'shocks the sense of mankind' . This principle was formalized in the concept of 'Crimes against Humanity,' which holds that even those in command who are responsible for systematic breaches of law can be held accountable . This creates a legal and moral framework that transcends national borders, asserting that certain rights are universal and no state has the authority to violate them with impunity.
However, the application of this principle is fraught with political reality. The decision for one state to intervene in the affairs of another is rarely based on humanity alone; it is almost always intertwined with national interest and policy considerations [27]. As L. Oppenheim noted, a state can always find or pretend a legal justification for intervention—be it self-preservation, balance of power, or humanity—when it has an important interest in doing so . This pragmatic reality means that while an international legal framework exists to challenge state-sanctioned atrocities, its use is selective and dependent on the political will of powerful nations, leaving the promise of universal justice often unfulfilled.
The law remains a profoundly dualistic force. It is the necessary framework that separates civilization from savagery, yet it can also be meticulously crafted into the most refined instrument of that same savagery . The excerpts reveal a persistent struggle between law as a guarantor of rights and law as a license for state power . When a government's policy is detached from principles of justice, its legal system can authorize the unthinkable, creating rules that legitimize torture, expand the definition of treason to silence dissent, and fail to protect the most vulnerable . A state is ultimately defined not by the existence of its laws, but by their character and the ends they are made to serve.
The enduring safeguard against the legalization of inhumanity lies not in the mere existence of legal codes, but in a society's commitment to immovable principles that stand above them . These include the proportionate application of punishment , the protection of disenfranchised minorities from majoritarian tyranny , and the recognition that human freedom is a non-negotiable value for which any price, even torture, must be dared . The challenge is to ensure that the state remains the servant of these principles, not their master. For when the state becomes a 'cold monster' that cloaks its violence in legal formality, it falls to its citizens and the international community to reaffirm the primacy of humanity over policy .
