by Benjamin J. Goold and Liora Lazarus (eds). Hart Publishing, Oxford and Portland, Oregon, 2007. 426pp. £30.00/$45.00. ISBN: 9781841136080.
Reviewed by Ignacio de la Rasilla del Moral, Seville University Pablo de Olavide & The Graduate Institute of International Studies, Geneva. Email: rasill04 [at] hei.unige.ch.
This is a book for those tired of merely wrapping themselves up in Orwellian slogans exported from 1984 or in finding civic courage in falsely attributing to Brecht the cautionary poem which ends with: “when they came for me, there was no one left to speak out” (Pastor Martin Niemöller). This is a book for those who, like the actual Brecht, while watching the driver changing the wheel and despite saying to themselves that they neither like the place where they come from, nor the place they are going, are wondering “why with impatience do I watch him changing the wheel?”
Human rights state’s practice and doctrinal discourse appear contemporarily pierced by an ever growing presence of security concerns, varnishing with necessity and respectability both courses of state action and doctrinal argumentation which were not so long ago considered either illegal in Western democracies or rhetorically marginal. By critically displaying a multidisciplinary magnifying-glass perspective on several layers of the current tension and its accompanying socio-legal background, the contributors to SECURITY AND HUMAN RIGHTS set themselves to confront this on-going change of tide in a domestic and international riverbed over which a climate of continuing “exceptional moment” has been forecast to last indefinitely.
While a certain amount of British self-flagellating parochialism is apparent, if weighted against the somehow excessive number of contributions that focus on the UK to the detriment of an absent variegated Western European perspective on security policy, exquisitely adventurous contributions as that of Ian Loader’s adoption of a cultural sociology approach to British political and public culture in the face of “illiberal practices in liberal regimes” helps one to excuse the slightly asphyxiating Anglo-American atmosphere that pervades the book.
Loader’s sociological approach to the security lobby’s claims is, nonetheless, but one of the contributions that attempt to “engage with security.” In the same category lie others that do so, whether by putting forward legal entitlements like the right to informational self-determination so as to mitigate the dehumanising effects of “categorical identities” as proposed by Benjamin J. Goold’s analysis of the right to privacy, or by asserting that human rights lawyers should not engage in unnecessary trade-offs before testing by themselves the threshold of effectiveness of anti-terrorist techniques as racial profiling, an issue which is explored by Bernard E. Harcourt.
Although adopting the language of risk is likely to trigger controversy among [*899] criminal lawyers, the will of eternally postponing any conclusive stalemate with the culture of state control and the private security lobby remains the characteristic feature of this volume’s collective effort to renew, through the multidisciplinary scope of its analysis, the supposed vernacular of reconciliation between security and human rights at a time when influential voices in the field are engaging with curtailments or modifications of the latter in terms akin to those of Michael Ignatieff’s promotion of the philosophy of “lesser evils.”
Contributing to the intellectual space of what Didier Dido and Elspeth Guild characterise – in their defence of “the man on the Clapham omnibus” as rational touchstone against the experts’ apocalyptic rule and the contemporary drive towards a “pre-crime society” – as the misleading metaphor of balance between liberty and security stands, thus, as the underlying common thread that runs through the whole contents of a book which includes essays by experts in international relations, criminal justice, international law, public law and political philosophy.
Structurally speaking, the volume is divided into three main themes: “Engaging Security,” “Engaging Rights,” and “Security as a Right: The Resolution?” Benjamin J. Goold and Liora Lazarus provide a well-constructed introduction which, although a bit alarmist in overtone, is definitively not unworthy of the sophisticated scholarly complexity that characterise most of the fifteen contributions originally written for an Oxford University colloquium in 2006.
A certain streak of inward-looking expert debate in the second part of the book, that aims to engage with rights from a not faltering, while still lucid perspective of their limits, can nonetheless constitute a challenge for those not entirely familiar with current legal philosophy debates. This noted, advanced readers shall surely take full scholarly profit from contrasting David Dyzenhaus’ exploration of the implications of a “culture of justification” in the apex of national security and human rights as a prominent example of a contemporary theoretical approach to emergencies, with Victor Ramraj’s alternative analysis of the tension in law and legal theory between idealism and pragmatism during emergency times.
Interesting for international lawyers is Powell’s, well-documented on contemporary international law debates, exploration of the place of both a “culture of justification” and a “culture of authority” in the international sphere as seen through the lenses of the disputed contours of the legal authority of the Security Council. The role of the Security Council in the fight against transnational terrorist groups is also paramount in Kent Roach’s assessment of SC Resolution 1373 as the main source of the “trendy nature of anti-terrorism laws” in domestic comparative legal terms. The international legal sphere of analysis does equally benefit, in this second part, from Shlomit Wallerstein’s extension of domestic criminal law notions on the basis of what she terms the state “duty” of self-defence. Her conceptual reinforcing of the latter plays the role of the discordant voice that harmonises the ensemble and can, in this respect, be profitably [*900] compared with Lucia Zedner’s waving, also within the criminal law field, of a warning flag about the risks associated with side-stepping due process in domestic regimes.
The third part of the book explores the Janus-faced character of the notion of security as a human right. It does so both at the domestic and at the international levels. In the first of them, both Sandra Fredman and Lazarus deal with the paradox contained in the fact that its development as a positive right juxtaposed with state action to provide for the security of its citizens, can also become a weapon in the rhetorical arsenal of a culture of state control in the hands of the security industry; a difficult balance for those walking that tightrope in view of the fact that the origins of the right in the domestic realm lies in its conceptualisation as negative freedom from state action. As far as the international realm is concerned, the parallel development of the notion of human security in international law and the “responsibility to protect” doctrine, respectively dealt with by S. Neil MacFarlane and Jennifer M. Welsh, mirror similarly paradoxical dilemmas that surround the heart of what Emmannuelle Jouannet has aptly defined as “the problem of the new substantive universalism of contemporary international law” and should, therefore, be profitably read by international legal scholars.
This is not the sort of disciplinarily discipline-specific book so common in the post-9/11 era of the worst-case scenario that offers a trench with strategically positioned holes for gifted human right’s snipers to prove their marksmanship on the blurred targets of a long-distance viewed struggle. It is neither one that restricts itself, less ambitiously, to pointing out the clear posts that mark the entrance to the human rights non-man zone beyond which it is better not trespassing. This is a book that dares to herald its positions into the other camp’s intellectual imaginary, and one that does so without breaking its ties with its natural rearguard. This book is, mutatis mutandi, contemporary human rights as “offensive realism.”
Jouannet, Emmanuelle. 2007. “Universalism and Imperialism: The True-False Paradox of International Law.” 18 EUROPEAN JOURNAL OF INTERNATIONAL LAW 379-407.
© Copyright 2007 by the author, Ignacio de la Rasilla del Moral.