A further conceptual argument against the conventional wisdom that liberty needs to be balanced against security is that enhancing the powers of the State has dual consequences. While diminishing liberty may enhance security against terrorism, it is important to note that it also reduces security against the State.33 Security against the State is diminished by dismantling traditional checks and balances like due process guarantees and other essential freedoms such as the right to liberty and security of person.
The argument that enhancing the powers of the State for the purposes of combating terrorism simply leads to increased public security appears to misunderstand the very idea of security. As has been outlined above, the concept of human security, for instance, not only encompasses protection against physical harm but also seeks to ensure that individuals are not subjected to oppressive state action. Accordingly, a system of civil liberties and human rights does not just represent an array of individual benefits, but also possesses aspects of a public good. Indeed, as Emanuel Gross has noted, the rule of law and respect for civil liberties and human rights constitute major components of national security.34 Undermining those principles may have adverse effects in creating a security threat that may become greater than the current threat of international terrorism itself.35 It is thus erroneous to suggest that security can be weighed up against liberty through a simple balancing exercise.
A related concern stems from the risk that domestic security may also diminish because the growth in state power resulting from new counter–terrorism provisions is not evenly distributed within the State.36 The executive, freed from traditional checks and balances, assumes central importance and gains a significant amount of autonomy. The citizenry, on the other hand, deprived of the special knowledge (assumedly) available to government, must trust its judgement that the terrorist threat faced by the State is indeed of sufficient magnitude to justify the curtailment of individual liberty. It must also rely on the government’s judgment as to whether the counter–measures adopted will actually address the threat effectively. As a consequence, it is no longer the legislature or the population that decides where the alleged ‘balance’ between security and liberty is to be struck, but the executive. To claim that it is solely the liberty of individuals which is traded off for the security of the community and the State is thus simplistic and somewhat deceptive: the checks and balances placed upon the distribution of power within the State are also compromised.
C Consequentialism in the Realm of Civil Liberties?
The idea of balancing liberty and security basically rests on the assumption that individual rights can and must be balanced against the interests of the greater community; or, in the context of counterterrorism, that the civil liberties and human rights of individuals must be sacrificed in order to gain greater security for the majority.37 This equation finds its philosophical roots in the doctrine of consequentialism. The paradigm form of consequentialism is utilitarianism, whose classic proponents were Jeremy Bentham and John Stuart Mill.38 According to Bentham, an act is morally right only if it causes ‘the greatest happiness for the greatest number’.39 It is beyond the scope of this paper to examine in greater detail the philosophy of consequentialism in all its aspects and criticisms.40 The point to be made here is that consequentialism, with its talk of changing the balance between liberty and security according to the circumstances, sits uncomfortably with human rights discourse.41 As leading political and legal philosophers of the 20th and 21st century have pointed out, rights discourse is often resolutely anti-consequentialist. Treating human rights as vulnerable to routine changes in the equation of social utility is antithetical to the notion that human rights are absolute and superior to individual and societal interests.
Two of the most powerful arguments in this regard have been made by the late Harvard philosopher John Rawls and by the legal theorist Ronald Dworkin. While the nuances of the arguments advanced respectively by these scholars cannot be adequately summarised here, it is nevertheless helpful to at least outline some of the key features.
In A Theory of Justice John Rawls argues that a just society would be based on two principles.42 His theory follows from the social contract tradition and develops a view of justice in which principles of justice are themselves the object of a kind of social contract. The first principle of justice states that all individuals have an equal right to liberty. Once this liberty is satisfied, the second principle is to be considered. The second principle states that social and economic inequalities shall be arranged to the greatest benefit of the least advantaged members of society. The hierarchy of the two principles in this order is justified by two rules of priority. The first priority rule, the priority of liberty, states that the principles of justice must be ranked in ‘lexical order’.43 Consequently, liberty can only be restricted for liberty’s sake; that is, liberty can only be infringed in situations where the limitations would strengthen the total system of liberty shared by all, or when unequal liberty is acceptable to those with the lesser liberty.44 The second priority rule, ‘justice over efficiency and welfare’, is concerned with the maximizing of advantages and opportunities. The inequality of opportunities is acceptable when it enhances the opportunities of those with the lesser opportunities, and the excessive rate of saving by those with the most advantage must, on balance, mitigate the burden of those bearing the hardship. In other words, justice is achieved when unequal opportunities are weighted towards the least fortunate and the accumulation of wealth is just when it helps to alleviate the burdens carried by the less fortunate. In contrast to consequentialists and utilitarians, Rawls thus does not allow some people to suffer for the greater benefit of others.
Ronald Dworkin has taken a similar approach. In Taking Rights Seriously he argues that rights claims must generally take priority over alternative considerations when formulating public policy and distributing public benefits.45 Rights are best understood as so-called ‘trumps’, which take priority over those justifications for political decisions that are formulated as goals for the community as a whole. As Dworkin put it:
The existence of rights against the Government would be jeopardized if the Government were able to defeat such a right by appealing to the right of a democratic majority to work its will. A right against the Government must be a right to do something even when the majority thinks it would be wrong to do it, and when the majority would be worse off for having it done. If we now say that society has a right to do whatever is in the general benefit, or the right to preserve whatever sort of environment the majority wishes to live in, and we mean that these are the sort of rights that provide justification for overruling any rights against the Government that may conflict, then we have annihilated the later rights.46
According to Dworkin the notion of rights as ‘trumps’ expresses the fundamental ideal of equality upon which the contemporary doctrine of human rights rests. Treating rights as ‘trumps’ is a means of ensuring that all individuals are treated in an equal and like fashion in respect of the provision of fundamental human rights. Fully realising the aspirations of human rights may not require the provision of ‘state of the art’ resources, but this should not detract from the priority given to human rights over alternative social and political considerations.47
The application of Rawls’ reasoning to the current talk of balance may lead to the conclusion that a trade-off between liberty and security is simply ruled out. Security would fall into the domain of the (second) principle governing social and economic goods and, due to lexical inferiority, could not be ‘balanced’ against the superior principle of liberty. Similarly, considering Dworkin’s argument on rights being ‘trumps’ over societal interests, civil liberties would be practically impervious to social utility arguments. The security of the whole community would constitute a public interest which generally would not be ‘balanceable’ with rights since the latter stand on superior moral and legal planes.
The argument presented here rests on the assumption, of course, that civil liberties are qualitatively equal to rights. One may well argue, however, that anticonsequentialist concepts of liberty and rights, as formulated by Rawls and Dworkin, cannot be applied to civil liberties straightforwardly. It is not the purpose of this paper to explore this problem any further. The brief discussion of consequentialism above merely serves to indicate that a simple balancing exercise may neglect significant aspects of the jurisprudential underpinnings of both liberty and security.