Reflections on Civil Liberties in an Age of Counterterrorism

Abstract

The philosophical formulation of the question of rational law – the question of how an association of free and equal citizens can be constructed through the means of positive law – forms the emancipatory horizon of expectation within which the resistance to what appears as an unreasonable reality becomes visible. (Jurgen Habermass, The Postnational Constellation 1). THE PROBLEM DEFINED The critical perspective that we bring to the present state of the law, or to this or that proposal for change, is formed in large part by our understanding of what we as a political society are committed to, and of what we believe ourselves to be capable. This set of expectations is in turn made possible by the kind of institutional structure within which, as active citizens, we find ourselves. The better our framework, the more open it claims to be, the more justice it delivers, then the more critical we are of decisions which to our eyes involve departures from what we believe the system to be capable of achieving, and from what, furthermore, we think it ought to provide. Hence the great disappointments always suffered by egalitarian campaigners in democratic systems, not only under occasional reactionary administrations but under left wing and social democratic ones as well. Enough is never done, because enough can never be done (short of the achievement of an egalitarian revolution which the 20th century has taught us will produce at best only a brief mirage of progress, at worst unnecessary bloodshed and counter-reaction). The fate of the socialist-minded activist in modern democratic politics is that of the perpetual bemoaner, lamenting the reactionary zeal of the Right or the betrayals of the governing Left, as the case may be. Even when progress is acknowledged to be evident, it is inevitably condemned by such critics as too little too late, or (even worse) as a token morsel thrown down to put them off the scent. The tone of politics on the Left in contemporary democracy is routinely one of doom and gloom, of betrayal and anger rather than of optimism and pragmatic policy ambition. Such language is at odds with the sunnier idealism with which * Professor of Human Rights Law and Rausing Director of the Centre for the Study of Human Rights, LSE. 1 (Cambridge, Polity Press, 2001), p 58.