Breaching constitutional law on moral grounds in the fight against terrorism: Implied presuppositions and proposed solutions in the discourse on 'the Rule of Law vs. Terrorism'

Abstract

“Civilizations die from suicide, not by murder.” Arnold J. Toynbee In the present paper I am going to analyse the discourse about the conflict between the rule of law and the responses to the terrorist challenge in the US and in Europe (especially in Germany).1 Besides showing that the structure of the discourse is complicated but also surprisingly similar, we are going to see what kind of implied presuppositions explain disagreements in the debates. I am also going to argue on a pragmatic2 basis that a new paradigm (or rather: loosening our idea) of the rule of law is unnecessary, even dangerous as we might be unable to tackle the original challenge for which rule of law was developed, namely the limitation of or fight against the arbitrary use of government power. Giving up this idea, especially an integral part of it, the prohibition of torture, would also endanger the identity of Western societies. In exceptional situations, on an ad hoc basis, the breach of constitutional requirements might, however, be morally justifiable in order to save lives or the constitution as a whole. But the illegality of these acts has to remain clear.

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