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Legal Rules, Moral Norms and Democratic Principles

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Edited By Bartosz Wojciechowski, Piotr W. Juchacz and Karolina Cern

The book tackles significant problems that each historian of law faces in the light of present decline of philosophical, ethical and ideological canons in the overall context of western civilization. The issues discussed in the book manifest themselves in the question whether the «democratic turn» is a real or just a virtue one. Democracy generally means governance by the people – but who are the people? What kind of governance by the people can be claimed as democratic – all of the various types that exist or only a single, chosen one? What – if any – is the normative issue of such a governance? Democracy, after all, is not a simple descriptive model of governance; it is deeply rooted in our preferences and hence normative patterns of conduct, which are not yet to be understood as the norm but rather as founding principles. Democracy is a thoroughly normative model. It is always as constructed and uttered in the picture of life at the same time.

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Part II: Rights and Citizenship in the Legal Practice

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Part II Rights and Citizenship in the Legal Practice Marta Soniewicka Jagiellonian University in Kraków, Poland How Dangerous Can the Sterilized Needle Be? Torture, Terrorism, and the Self-Refutation of the Liberal-Democratic State* Abstract: The paper addresses the problem of the justification, legitimization or authorization of torture as a method of interrogation in an emergency state. The paper starts with the analysis of ambiguities of the definitions of torture and terrorism. There are discussed the arguments used in favor of moral justification of torture in the emergency state based on the ticking time bomb scenario. The paper discusses also the argument from necessity used in the post facto authorization of torture in the “Dirty Harry case.” Finally, the paper poses the question about legalization of torture. The main thesis of the paper is that the idea of the justification or legitimization of torture corrupts the rule of law and undermines the main values of the liberal state, and therefore is unacceptable in any form and in any circumstances. Keywords: torture, ticking time bomb scenario, terrorism, liberalism, life-saving torture, salvation torture, necessity, Daschner, Gäfgen, liberal-democratic state, rule of law Ach, wie übel ihnen das Wort ‚Tugend‘ aus dem Munde läuft! Und wenn sie sagen ‚ich bin gerecht,‘ so klingt es immer gleich wie: ‚ich bin gerächt!‘. Friedrich Nietzsche1 ________________ * The first version of the paper was presented at the seminar “Health Law, Bioeth- ics and Human Rights“ at Boston University School of Public Health in April 2011 during my...

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