La Politica del Diritto nell'Era del Terrore: Profili di Legislazione e Giurisprudenza Comparata (The Politics of Law-Making in the Era of Terror: National Legislation and Jurisprudence in a Comparative Analysis)

Il Politico, Vol. 72, No. 3, 2007, pp. 125-153

15 Pages Posted: 6 Jul 2012

Date Written: 2007

Abstract

The article attempts to illustrate the politics of law which have characterized both the anti-terrorism legislation and jurisprudence since the 9/11 attacks. To this aim, it compares laws and regulations passed in a number of western countries after 2001, together with further case law. Most of the laws adopted allow harsh constraints of the rule of law guarantees, admitting extrajudicial detention and deportation of non-citizens, under a clear friend/foe perspective. The analysis also shows a widespread criminalization of individuals according to vague statutes, which often rely on blacklists of proscribed groups or persons, held and amended by governments or international organizations (e.g. the UN or the EU). In this way, Executives legislate in criminal law matters, practically bypassing the principle of separation of powers. Judges are in turn often prevented from deciding on the merits of cases concerning terrorism, so that they have to take for granted the determinations made by governments or international organizations over the status of terrorist suspects. Nevertheless, a number of bold decisions issued by domestic courts have progressively reaffirmed the central role of judicial authorities in the fight against international terrorism, also circumscribing the increasing power of governments. However, this does not avoid the risk that judges may issue common sense decisions, without considering the fragmented nature of terrorist organizations. In the conclusion it is underlined the need to abandon this ideological and discriminatory perspective, according to which international terrorism is portrayed as being a monolithic phenomenon joined only by aliens, and to fully comply with the rule of law.

Note: Downloadable document is in Italian.

Keywords: Anti-terrorim Legislation, Black-lists, Domesti Courts, International Terrorism, Rule of Law

Suggested Citation

Tondini, Matteo, La Politica del Diritto nell'Era del Terrore: Profili di Legislazione e Giurisprudenza Comparata (The Politics of Law-Making in the Era of Terror: National Legislation and Jurisprudence in a Comparative Analysis) (2007). Il Politico, Vol. 72, No. 3, 2007, pp. 125-153, Available at SSRN: https://ssrn.com/abstract=2100999

Matteo Tondini (Contact Author)

Independent

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United States

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