Securing Liberty in the Face of Terror: Reflections from Criminal Justice


  • Sincere thanks for their criticisms and suggestions on earlier drafts to Antony Duff, Lisa Gourd, Oren Gross, Nicola Lacey, Ian Loader, Liora Lazarus, and James Nickell; the participants at the Colloquium on the Moral and Legal Aspects of Terrorism, Oxford, March 2005, in particular Timothy Endicott, John Tasioulas, and Adam Tomkins; and the anonymous reviewers of this journal. I am also very grateful to the British Academy for the two-year Research Readership during which this article was written.


Post-9/11 the equilibrium between security and liberty has been subject to intense political and philosophical interrogation. The metaphor of balance, although perilous, is so pervasive as to demand scrutiny of what lies in the scales, what tips them, and in whose interest. Though international and constitutional lawyers have dominated the debate about balance, the experience of criminal justice suggests that articulating a principled approach provides greater prospects of protecting rights against unwarranted erosion. This more modest approach imposes structural and procedural safeguards through the twin engines of judicial oversight and unremitting defence of due process. In this way it may be possible to enhance collective security against terrorism without diminishing individual security against the state.