FROM MILITANT DEMOCRACY TO THE PREVENTIVE STATE?

Abstract

In what follows I will discuss constitutional paradigms that emerge form clusters of counter-terror techniques that are used in liberal and illiberal democracies that face the challenge of international Islamist terrorism. The security measures seem to cluster around intellectually distinguishable models with very different consequences as to separation of powers, scope of rights and procedures and levels of fundamental rights restrictions. The models are introduced in Part I where I speculate that in case the terrorist threat becomes pervasive the instruments of militant democracy and prevention will merge in a new constitutional arrangement that is called here the Counter-terror state. Part II considers at more detail the experience of constitutional regimes that have experienced threats to the survival of the political regime. Elements of militant democracy and of the preventive state, and also emergency might be relevant in the analysis of the state’s reactions to terror. The experience of militant democracy, as a constitutionally legitimised departure from ‘ordinary’ constitutionalism is relevant, given the intimate relation between terror and fundamentalist political movements. I will also consider the contemporary drift towards the ‘preventive state’. The ‘preventive state’ is a specific form of welfare state paternalism that operates against non-political security threats. The ‘preventive state’ is the result of piecemeal constitutional change that is endorsed by judicial reinterpretation of constitutional principles.

In Part III I discuss the potential range of rights restrictions emerging in the logic of the Counter-terror state. Such restrictions depend on social choices, and I show in Part IV that in light of the distortions of decision-making under conditions of uncertainty and panic that emerges in regard to disasters, it is not clear who should make the societal determination on the proper level of risk-taking. The risk-related decisions do not follow from principles that apply in the determination of rights for ordinary circumstances. In case of serious terrorist threat with the possibility of mass disaster or daily damage rights related mistakes do have disastrous consequences. This precondition is fundamentally different from the one that exists at the times of ‘normalcy’, which serves for the ordinary constitutional calculus of liberty. Constitutionalism as an order of liberty is about risk taking; however the preconditions for such position may not be present in case of actual threat of disaster. The Concluding remarks emphasise that there are substantive, principled and pragmatic reasons for a formal, constitutionally foreseen Counter-terror state. These reasons may or may not be compelling, as the matter is somewhat contingent on the nature of the very democracy. The precondition for the legitimacy of such state is that it should be one that results from public deliberation and that the citizens are deprived of the conditions for such deliberation in the name of security.

Although in light of liberal legal theory catastrophes may require the rethinking of the place of rights in a democracy, and mass international terrorism is such a catastrophe, a switch to a Counter-terror state is not obvious, given lack of certainty about terrorism and because of prudential considerations. As a matter of practical development a likely alternative to a full scale Counter-terror state is a move away from the judicial state towards a preventive state with a detention regime. We are toying with the possibility of turning big Brother’s surveillance and potential arbitrariness into a condition of everyday life that we don’t even notice anymore. However, currently the judicial state has not abandoned its position in most liberal democracies and it continues to remind us that restrictions are not normal, though might be legitimate.