Is Torture A Juridical Question

When one reads through both media and scholarly accounts of torture, there is a common assumption that torture is a juridical question. The question is whether there as to be a reference to the law when analyzing the problem of torture; i.e., is the legal sphere the necessary reference point of inquiry?

In many ways, I think social theory has been hoodwinked by Walter Benjamin's essay "Critique of Violence." Giorgio Agamben, who draws heavily on Benjamin's work, is no doubt correct when he outlines how the "state of exception" underlies the legal apparatus, as well as the movement in democratic societies towards increaseing the powers of executive branches, which can be understood as buttressing a "sovereign will."

But, the question remains as to how relevant law is to contemporary governmentalized states? In orther words, is there an assumption on the part of Agamben and others, since they rely heavily not only on Benjamin and Schmitt but German legal theory in general, that a site such as Abu-Ghraib can only be understood in terms of its relation to a state's legal apparatus (and its lacuna) that permit's it? Or is the "force of law" merely what Alfred Hitchcock called a "McGuffin" -- the "almost irrelevant plot device that just gets a story rolling."

Or should we take the lessons that Foucault was outlining towards the end of his life that attempted to understand power outside of juridical terms.

I am stating here that I do not think that torture and its produced sites can be understood as a juridical question.