44 JALLOH v. GERMANY JUDGMENT – CONCURRING OPINION OF JUDGE ZUPANČIČ of the same principle – the privilege against self-incrimination and the exclusionary rule – its rationale is not likely to withstand the test of time. Yet the true raison d’être for the privilege against self-incrimination is very simple. The reasons must be sought in the rudimentary rationale of the whole legal process as the civilised alternative to the resolution of conflict by combat. This very rationale was put succinctly by John Henry Wigmore, the foremost authority on the law of evidence: “to comply with the prevailing ethic that the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself ...”1 Wigmore’s reference to the “proper rules of battle” may have been so understood, but it is certainly not a metaphor. In the context of a legal process as a civilised alternative to barbaric combat, “proper rules of battle” most certainly do not contain a licence to use force, any force. The purpose of the “legal battle” is precisely to replace the logic of the real combat, that is, to replace the logic of power with the power of logic. In legal process, most fundamentally, the use of force as a means of conflict resolution is replaced with logical compulsion. The mere fact that the battle happens between “government and individual”, as in criminal law, cannot change this most basic implication. If force is nevertheless used to obtain evidence whose unwilling source is Wigmore’s individual facing the powerful State police apparatus it is fair to say there has been a regression to combat and that the whole criminal process in its principal intention is subverted and deprived of legitimacy. The executive branch of the State, in other words, has relapsed into pre rule of law routine. To paraphrase Mr Justice Frankfurter, these are barbaric methods too close to war of everybody against everybody to permit of legalistic differentiation. The courts that admit such evidence, because at a minimum they acquiesce in such cruel practices, are ex post facto accomplices to such cruel practices. The issue, therefore, is not only whether Mr Jalloh had been tortured or treated inhumanly and degradingly. The whole system of law enforcement was exposed to degradation that was far more critical and perilous. 1. Wigmore on Evidence, McNaughton, rev. 1961, vol. 8, p. 318.