Counter-Terrorist Judicial Review: Beyond Dichotomies
Davis & de Londras (eds), Critical Debates on Counter-Terrorist Judicial Review (2014, CUP), Forthcoming
21 Pages Posted: 20 Nov 2013 Last revised: 15 May 2014
Date Written: November 17, 2013
Contemporary debates about terrorism and counter-terrorism have become dominated by dichotomous thinking, in which complicated questions can become reduced to simplistic analyses of terrorist v. freedom fighter, terrorism v. counter-terrorism, vengeance v. protection, fundamentalism v. necessity, security v. liberty. Such an approach, however, masks much of the ‘murkiness’ of the debates; a murkiness that must be grappled with because, in practice, it has contributed to some extent to the design, appropriation, implementation and exercise of extensive powers of counter-terrorism, often without even a legislative basis. The extent of counter-terrorism is of clear concern to lawyers, although how counter-terrorism might be controlled is something upon which many — including us — can disagree. Thus, there is an on-going debate across legal systems and continents, about mechanisms of such control and, in particular, about the role of courts in this respect. In this chapter, which is the introduction to Critical Debates on Counter-Terrorist Judicial Review (2014, CUP), we reflect on why this debate has generated so much attention and is of significance. In particular, we argue that the debate on the appropriateness and capacity of counter-terrorist judicial review has raged because of the fundamental values that counter-terrorism puts at stake: distortion of democratic debates and mechanisms, the functioning and content of deeply entrenched constitutionalist values of limited power, and people’s faith in the law and in its legitimacy. At its very heart, we argue, what is at stake when we debate whether and how counter-terrorism can be limited and especially the possible role of judicial review in such limiting exercises is a commitment to constitutionalism even in a situation of crisis.
Keywords: judicial review, constitutionalism, counter-terrorism, counter-terrorist judicial review
JEL Classification: K19
Suggested Citation: Suggested Citation