Is there a fundamental trade-off between collective security and individual liberty? This question is by no means a new one for democratic societies. Long before the Islamist terror threat scenarios of the 2000s, Western democracies had been menaced by domestic terrorism, violent separatism, and organized crime and their reaction was always the same: security laws were tightened, new tools for keeping citizens under surveillance were created, the rights of suspects, accused persons, and convicts were restricted. To put it shortly, individual liberties were curbed to satisfy collective security needs. Oftentimes, this restriction happened with the implicit or explicit consent of the people. Empirical studies on public attitudes show that, if given the choice, citizens who perceive a terrorist threat to their country are likely to opt in favour of restricting civil liberties.
This development raises a number of important issues. One is whether the picture of a worldwide curtailment of civil liberties is empirically correct. Another is whether this “democratic reaction” of democratic societies to new threats and the accompanying responsive reaction of political elites to the perceived wishes and interests of the population indicate a crisis of modern democratic societies and the rule of law. It is empirically far from clear that established democracies have in fact massively curtailed civil rights in recent decades. Some empirical findings reported in the literature give us reason to believe that there have been these massive restrictions of liberal rights but so far this research is limited to very few systematic studies. Our study aims to contribute to this debate by showing that the empirical picture is more complex than one might think.
The widespread assumption in the literature that civil liberties have been restricted in almost all liberal democracies in recent decades and especially after 9/11 cannot be confirmed across the board. First of all: According to the data of the ‘Democracy Barometer’ (democracybarometer.org), which provides the basis for our empirical analysis, those civil liberties protected by the constitutional texts of democratic states were not restricted at all. If changes did occur in these cases, civil liberties have rather been strengthened than restricted. This is true, above all, not only for the ratification of the United Nations Anti-Torture Convention but also for constitutional guarantees of the freedom of assembly and association, freedom of religion, the independence of the courts, and the free movement of persons.
Beyond constitutional documents there is no clear development between 1990 and 2007. There are indeed areas in which significant decline of civil liberties took place. Liberal democracies suffered remarkable losses with regard to the quality of the freedom of religion, the strength and impartiality of the legal system, the equality before the law, with regard to habeas corpus rights and the right to physical integrity. If we consider that these rights and principles define nothing less than the basis of democracy under the rule of law, the decline is indeed serious. However, the development varies from country to country as much as the base level in 1990. Whereas the Nordic countries and the Netherlands, for example, maintained their high base level for civil liberties over time, a moderate to strong decline took place in the countries of Central and Southern Europe (Germany, Austria, UK, Switzerland, Portugal) as well as Japan and Canada. In the cases of France, Italy, Spain, and the United States the decline was strong or dramatic. While in Italy already apparent deficiencies in the rule of law worsened under the Berlusconi governments, the partly dramatic losses of liberties in Spain and the United States appear to be a consequence of the terrorist attacks of the 2000s. Overall, countries that set out from a high level of civil liberties suffered lower losses of freedom than those that started from a lower level. Liberal rule-of-law traditions can, apparently, at least attenuate the decline of individual liberties.
What else explains the differences between the countries? So far it is only clear what does not explain the differences: liberal party programmes of the governmental parties, for example, free media systems, strong federal institutions, and powerful constitutional courts. Especially the non-significant influence of federal structures and strong constitutional courts is surprising at the first glance. In the cases in which strong restriction of civil liberties took place, federal veto structures were to some extent ineffective due to a lack of institutional powers. Even formally, second chambers in parliament do not in every case handle the relevant legislation. Sometimes they do not differ in political composition from the first chamber and, given the perceived threats, they sometimes even share their views on curbing civil liberties. In these circumstances, federal institutions do not effectively restrict national policy making.
Regarding the influence of constitutional jurisdiction, it has to be stressed that our analysis so far only covers the period until 2007. Security legislation passed after 2001 may have (if at all) come before the supreme or constitutional courts significantly after 2007. Another explanation for the lack of comparative influence exerted by constitutional courts may be that strong courts, too, may not be inclined to decide against laws enacted by political authorities that are, in addition, also shared by the population, when it comes to supposedly existential issues of terrorist threats. Given their weak democratic legitimation, courts often hesitate – probably rightly so – to bring down final decisions on matters of national security for which they cannot ultimately assume democratic responsibility. Furthermore, in times of war, courts, too, can occasionally be seized by “popular panic” (Jeremy Waldron) and become “more executive-minded than the executive”, as the famous British law lord Atkin once put it.
Overall our investigation of the development of civil liberties over time does not necessarily reveal a crisis of the rule of law. Nevertheless, the significant losses of quality in certain areas are anything but trivial. At the same time, the talk about a crisis of the rule of law appears per se to have a blind spot: by focussing too strongly on certain obvious problematic cases, it neglects those other countries where democratic politics have maintained their liberal course even under the threat of terrorism. Apparently, institutional barriers and mechanisms hinder the restriction of civil liberties only with the support of a “freedom-minded” political culture. If this liberal culture is put under pressure in situations of perceived (terrorist) threats, rule-of-law institutions will not succeed in preventing the dismantling of civil liberties without such liberal backing in the long run. Whether the loss of liberties in some democracies of the Western world is permanent or reversible, and whether the loss will mutate into a more general crisis of democracy and the rule of law depends, ultimately, on the interaction between rule-of-law institutions, political actors, and the attitudes and values within democratic societies themselves.
The article “Demokratische Gefahr für die Demokratie? Die prekäre Balance von Sicherheit und Freiheit” by Sascha Kneip and Aiko Wagner has been published in German language in Merkel, Wolfgang, ed. Demokratie und Krise. Zum Schwierigen Verhältnis von Theorie und Empirie. Wiesbaden: Springer VS, 2015, pp. 339-372. An English version of the volume is currently under preparation.