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  • Open Preview See a Problem? Details if other :. Thanks for telling us about the problem. Return to Book Page. His contributions have spanned the major controversies of the War on Terror including the morality and legality of torture, whether security can be 'balanced' with liberty, and the relationship between public safety and individual rights. He has also tackled underlying questions essential to understanding the practical debates - including what terrorism is, and what a right to security would entail.

    This volume collects all Waldron's work on these issues, including six published essays and two previously unpublished essays. It also includes a new introduction in which Waldron presents an overview of his contribution, and looks at the problems currently facing the Obama administration and the UK Government in dealing with the legacy of the Bush White House. The volume will be essential reading for all those engaged with contemporary politics, security law, and the continuing struggle for an ethical response to terrorism.

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    Lists with This Book. Community Reviews. Showing Or consider John Rawlss argument about the lexical priority accorded to the prin- ciple of basic liberties: if security falls into the domain of the principle governing social and economic goods, then a trade-o of liberty against security is simply ruled out. None of this is conclusive against the balancing approach. Rights as trumps is so far just another piece of imagery to put against striking a new balance. And we must not be seduced by our technical familiar- ity with the idea of rights as side-constraints or with the idea of lexi- cal priority into thinking that these philosophical ideas can be applied unproblematically to civil liberties.

    On the contrary, there is much in our tradition of civil liberties thinking which cannot be modelled in this way. We all know that existing legal guarantees of civil liberties are hedged around either with explicit provisos to the eect that they may be limited in the interests of national security, territorial integrity or public safety, or with implicit doctrines to the eect that the rights must be adapted to circumstances, the constitution is not a suicide pact, etc. And how far these should be regarded as pure political compromises to get the state to oer any guarantees at all, or how far they should be.

    See Rawls, A Theory of Justice, pp. European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10 2 : The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restric- tions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of dis- order or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in condence, or for maintaining the authority and impartiality of the judiciary.

    See McCulloch v. Maryland 17 U. City of Chicago, U. Mendoza-Martinez, U. Even apart from outright opposition to the trumping idea and the other models of special priority, there are various things that the pro- ponents of striking a new balance can say in response to the concerns about consequentialism that I have raised in this section.

    They may say, rst, that it is important to distinguish between two questions: 1 How is a given right dened? Even if the answer to question 2 is quite stringenttrumps, side-constraints, lexical prior- ity, etc. At the beginning of section 2, I said that liberty could be a matter of more or less. For example, I am free to move around the country but I am not free unless invited to come within touching distance of the President; and I could be made a little less free than that by being required to stand back, say, a hundred yards from the President.

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    Where that boundary is drawnfrom a few feet to a hundred yardsis surely a matter that requires consideration of consequences; it will be drawn dierently in a republic with handguns than in a republic where the weapon of choice for assassination is the stiletto. So we may say civil lib- erties are not even dened until some balancing exercise is undertaken. And all that was happening in a post-September 11 world was that our understanding of civil liberties was being made responsive to changes in the very factors that enter routinely into its denition.

    The balance did not aect the priority we accord to liberty: it aected only our discussion of what the appropriate liberty was.

    Admittedly this line is easier to take for those freedoms, like free- dom of movement, that have no intrinsic denition and are obviously a matter of degree than for thoselike free speech and freedom of reli- gionwhose denition may be given in large part by the nature of the. An analogy, to illustrate this response: Robert Nozick believed that property rights were to be treated as side-constraints and not balanced or traded-o against other socio- economic interests. But what property a person had, how much property a given appro- priation gave rise to, and what property rights in general should look likeall this, he thought, was something that could be determined only by addressing the relation between the interests of the putative property-holder and the interests of others who might be aected by his acquisition or possession.

    Hence the importance of what Nozick referred to as the Lockean proviso in determining what rights we have; see Nozick, Anarchy, State, and Utopia, p. So the idea of balance is not exactly ruled out by the idea of rights as side-constraints; it just enters into our discussion of rights at an earlier stage. It will be quite implausible to say, for example, that ordinary political criticism doesnt count as speech in a time of crisis though it may count as speech in a time of peace. Secondly, it should be noted that most of the philosophical theories which oppose routine trade-os between rights and consequences never- theless toy with the idea of some sort of out to avoid ruat caelum abso- lutism.

    Robert Nozicks caveat is typical: The question of whether these side constraints are absolute, or whether they may be violated in order to avoid catastrophic moral horror, and if the latter, what the resulting structure might look like, is one I hope largely to avoid. It may be thought that the events of September 11 do constitute exactly thatcatastrophic moral horrorand that the occurrence of such horror should trigger whatever qualications we are prepared to impose on our rights-absolutism. But it is important to notice that the occurrence of catastrophic horror is not the issue; the issue is whether the abrogation of rights is a plausible means of avoiding it.

    I shall say more about this in section 7. For now, it is sucient to point out that the bal- ancing argument is supposed to turn on what we can achieve by dimin- ishing liberty; it is not supposed to turn on the sheer fact of horror at what has happened nor of our fear at what might happen.

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    Fear is only half a reason for modifying civil liberties: the other and indispensable half is a well-informed belief that the modication will actually make a dierence to the prospect that we fear. When Ronald Dworkin gave his version of the ruat caelum qual- icationSomeone who claims that citizens have a right against the Government need not go so far as to say that the State is never justied in overriding that righthe suggested that the state may override a given right when this is necessary to protect the rights of others.

    This is a very common move in popular discussion of these matters. Someone worries aloud about changes in civil liberties and the rights of suspects and people respond: Well, what about the rights of those who might get blown up by terrorists? Rights versus rights is a dierent ball-game from rights versus social utility. If security is a matter of rights, then rights are at stake on both sides of the equation, and it might seem that there is no violation of the trumping principle or of the idea of lexical priority when some adjustment is made to the balance.

    See also the discussion in Chapter 7, below, at pp. Dworkin, Taking Rights Seriously, p. This business of conicts of rights is a terribly dicult areawhich moral philosophers are only just beginning to grapple with. There are some who insist very strongly on distinctions between acts and omis- sions, and on structures of agent-relativity, that would make it quite wrong to posit an equivalence between a government violating someones civil liberties and a government failing to save someones life because it refused to violate civil liberties.

    Failing to do what is necessary to save Ps life because this would actively violate Qs rights is not a way of disrespecting P; the responsibility rests with thosethe terrorists who kill P, not with the government that refuses to violate rights in order to stop them. Others, however, nd the stringency of this approach unacceptable, either because they take a more consequentialist view of rights to begin with, or because they accept that people do actually have certain rights to positive goods from their governmentlike the good of protection from attackrights which simply cannot be handled in the manner indicated in the previous sentence.

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    At the very least, they want conicts of rights to be dealt with in a way that is sensitive to issues about the distribution of infringements. Some argue, for example, that we should trade o rights-infringements against one another using a maximin model rather than a utilitarian model.