Part I

This study is an attempt to provide a concise overview of the logical interdependence between the rule of law and the right against self-incrimination.

In this article, the right against self-incrimination is defined broadly as a barrier against any forcible violation of the concentric spheres of the accused’s private life (mind, body, home, car, etc.) and, in a narrow sense, as protecting only the testimony given by the accused.

Protecting the right against self-incrimination—through the consistent application of the exclusionary rule—is the central pillar of modern criminal procedure. By subjecting the power of logic (that is, justice) to the “logic” of power (that is, arbitrariness), forced self-incrimination corrupts the rule of law at its very core.

Moreover, forced self-incrimination often sets in motion a self-referential spiral of state-sponsored violence, in which the arbitrary use of executive power legitimizes the arbitrary use of legislative power. Such “justice” amounts to a true Kafkaesque absurdity. On the other hand, a logically coherent jurisprudential foundation for the right against self-incrimination requires a logical deconstruction of the entire inquisitorial doctrine of criminal procedure. In terms of criminal policy, even the inquisitorial elements that persist in the so-called (continental) mixed procedure, as was clearly demonstrated in one of the recent judgments of the European Court of Human Rights (Selmouni v. France, July 1999), predispose the criminal justice system in a troubling way toward torture and inhuman or degrading treatment. Both from a logical standpoint (regarding the coherence of the judicial process) and from a political standpoint (regarding crime prevention), the strict exclusion of any tainted evidence is the only—but highly effective—remedy (procedural sanction).

However, modern criminal procedure still contains quite a few inquisitorial elements and attitudes; under the pretext of a more effective “discovery of the truth,” they hinder the introduction and application of the exclusionary rule.

The procedural right not to be compelled to testify against oneself has its origins in Roman law: *Nemo contra se prodere tenetur*. Like the presumption of innocence (i.e., the right to remain silent) or in North American positive law (the Fifth Amendment to the U.S. Constitution), this right has always been recognized. However, inquisitorial criminal procedure has always represented its complete negation. In the second half of the 20th century, constitutional courts, international tribunals, and monitoring bodies (the United Nations Convention Against Torture, the 1996 Saunders v. United Kingdom, 1996, of the European Court of Human Rights) gradually recognized this right (as well as its alter ego, the exclusionary rule) as a constitutional principle and as a human right applicable to any suspect. Strong inquisitorial elements (incommunicado detention, interrogation of pretrial detainees, the prosecutor’s inquisitorial powers, the absence of a jury, a certain laxity in the exclusion of evidence, etc.) persist in modern criminal proceedings.

Because it leads to a war of the kind described by Thomas Hobbes (bellum omnium contra omnes), the first response of any state should be to declare anarchy illegal—that is, to prohibit the use of force as a means of resolving conflicts. Next, the second action of any newly formed state should be to call upon its citizens to resort to peaceful means of conflict resolution—that is, to have conflicts resolved by the courts. This presupposes that arbitrariness and the anarchic “logic” of force in society be replaced by the force of logic within judicial processes (justice, the rule of law, and legal procedures through which conflicts are resolved). Thus, the use of force to extract confessions within what otherwise appears to be a legal procedure creates an absurd internal conflict at the very core of the rule of law—hence its fundamental legitimacy. Due to the great symbolic value of the rule of law in general and of criminal procedure in particular, this lack of legitimacy contributes to an increase in the degree of anomie (political instability, rising crime rates, disorganization, etc.) within society.

Since the police themselves cannot legally convict anyone, this right is protected only if evidence obtained through coerced self-incrimination is excluded from the trial—that is, if the judge or jury never becomes aware of it or of its implications for the evidence. Precisely because of its preventive nature, the exclusionary rule is one of the few fully effective remedies.

However, the exclusion of relevant evidence—even if obtained through self-incrimination coerced by violence—conflicts with the function of ascertaining the truth in criminal proceedings. (“The constable blunders and the criminal goes free!”) Nevertheless, this “truth” (a mere correspondence between the major and minor premises) that must be established in criminal trials does not constitute a description of objective reality, but rather of the state’s power to legally define crimes. The offenses defined in the statutes (regardless of whether they serve a social function or not) are the major premises for the state’s power to determine that certain types of conduct are punishable. Especially if these major premises are arbitrary, the so-called “truth” of a criminal conviction may be nothing more than a selective interpretation of “facts” that fit those invented premises. Therefore, under undemocratic conditions, the use of power (force)—to secure a conviction for arbitrary crimes—can become a self-referential spiral in which power exercised as torture justifies the state’s power to punish: an existentialist absurdity described by Kafka in his *The Trial*. To a certain extent, this absurdity is an integral part of any inquisitorial procedure. It has its roots in the medieval “witch” trials. Today, this self-referential spiral is particularly evident in the progressive dismantling of the sphere of personal privacy, but also in the criminal prosecution of political dissidents for imaginary crimes, in the stigmatizing abuse of psychiatry, in the massive and repressive use of punishment in the United States, etc.