Lecture 1
Intro to Law & Security (and how does it relate to security)
Why is there tension?
→ security crises might pose fundamental challenges:
- The leitmotif of the tensions between security and liberty is
recurrent in democratic debate –in connection with wars, but
also in relation to other cases where internal or external threats
are seen as requiring the sacrifice of liberty to guarantee
survival.
- Such tension can hardly arise in non-democracies, where
liberties might be perceived as a threat themselves by those in power, while a
democracy cannot survive as such without safeguarding liberty
- The question of the relations between liberty and security, and the very working of
democracies, has been experienced and debated in connection to the attacks of 11
September 2001 but also after the so-called migration crisis and the renew series of
terrorist attacks between 2015 and 2018 in Europe (and the diverse responses to
them)
Especially in democracies:
- reminder security is a precondition for the proper functioning of a liberal order
- likely to unveil contestation and dissatisfaction with existing legal limits on
government’s powers
→ public pressure
→ what is the role of legal limits on the executive when citizens themselves demand
more security and allowing officials legal flexibility of action seems necessary?
The dilemma?
→ Existence of contrasting arguments, especially when governments seek to to prevent a
security crisis rather than simply react to it (Posner 2006)
○ in order to prevent crises of such proportions, the executive must have the means to act
proactively making of discretionary powers a tool for crisis management
○ Liberty-reducing policies reduce security
Let’s think about this…
What are the limits to the exercise of monopoly of use of force in democratic societies?
- Breaches to legal principles might be considered justified and normalized..but to what
extent?
- What kind of impact do these measures have on social, civic and human rights and
freedoms of citizens & specific minorities and groups such as religious communities
or migrants?
Importance of law & security
→ knowing about the law and how it interacts with changing security necessities is crucial
- As future security experts and practitioners you will be able to evaluate the correct
balance to be found between security policies and the legal and political status quo
, - The implications and impact of changes and contestation to existing legal regimes:
what does it mean to suspend rights in the name of security? What kind of society do
you want to be part of and contribute to as a citizen and security expert?
- Different types of (in)securit(ies)?
Connection between legal regimes & interpretation of security/securities
- different responsibilities of security depending on the applicable legal regime and
existing political regime
IMPORTANT:
→ Law and legal regimes are the product of certain specific historical development and
predominance of certain political interests in that specific moment
→ BUT…societies and (in)securities change: legal regimes should change
→ SO...need to understand what regime applies a certain ‘security’ situation
→ BUT ALSO: the problems and tensions between different interests/values associated with
a certain political setting..
→ different legal system & different political regimes, the way states perform their duty of
granting security and order varies around the world
Law in law & security
● Law as an instrument to exercise control: (1)
● Law as an instrument to protect citizens: (1,2,4)
● Law as an instrument to implement normative positions: (2)
● Law as an international construct to limit states' ability to exercise force: (3)
● Law as a way to cooperate among different actors: (3)
Law
- the law is a set of legal rules that governs the way members of a society act towards
one another
- behavioral codes that guide people into actions that conform to societal expectation
- laws are norms supported by codified social sanction
- different levels of law to respond to different necessities
Where does the law come from?
- the state is sovereign
→ power of a government to reign
→ over its territory
→ without any interference
,Sovereignty
the state is superiorem non recognoscens: the highest authority within one country
- peace of westphalia (1648)
- the state gets to be a ‘legitimate’ actor within the international system with the other
‘legitimate’ states
- principle of non-interference in internal affairs
- but…things have changed - also thanks to international organizations (i.e. UN)
→ human rights paradigm
Where does the law come from?
- the sovereign has monopoly of the use of force (legitimate violence)
- the ‘social contract’ → freedom per security
→ thomas hobbes
→ john locke
So… what are the functions of law?
→ Order (security)
- essential prerequisite of a society
- by providing order, law provides the security that facilitates social
and political development
→ justice
- more contested - different philosophical and political definitions
→ overall:
- fairness
- moral rightness
- a scheme or system of law in which every person receives their due from the
system, including all rights, both natural and legal
So… what are the functions of law?
- ON JUSTICE SPECIFICALLY… Derrida (1990): justice as a POLITICAL CONCEPT
● Doing justice means giving what is DUE → balancing competing claims and dealing fairly
with all parties
● Necessary ideal, a horizon towards which the best impulses of human civilisation are
directed
● Think about the debate between equality & equity
→ Different sources of law
● Constitution
● Legislation (national & international)
● General administrative decisions
● International treaties
● Recognized custom
● Case law/ Jurisprudence
● Religious texts
→ Different legal systems
- civil & common law
- religious law
- customary law
- mixed systems
, Different legal systems (Check Wacks 2008, Chap. 1)
1. customary law
- unwritten law
- oral, informal and flexible
- related to culture
2. religious law
- law integral to religious sources & sanctions are religious
3. civil law
- romano-germanic (continental)
- codified (legal texts + scholars)
4. common law
- anglo-american
- originally unwritten case law + precedents
…. BUT.. cross pollination!!
Different levels of law
→ national law
- National boundaries
- Individuals
- Internal domestic affairs
- Law enforcement to protect legislature and court system
→ EU law
- Transnational, regional boundaries
- Individuals and ‘organizations with public function’
- Independent court system
- Law enforcement to protect legislature and court system
→ international law
- Relationship state & other subjects
- External affairs of a State but development of international criminal law (that applies
to individuals)
- International Court System based on treaties
- No international law enforcement system
Human & fundamental rights
→ Human rights
- Rights enjoyed by all humans irrespective of race, sex, gender, religion, language, or
any other status
- Universal
- Protected internationally
- Promoted and applied by the ONU
- Documented by the International Bill of Human Rights and a series of international
conventions
→ Fundamental rights
- Essential rights enjoyed by every citizen of a country irrespective of creed, place of
birth, religion, sex, gender or other status
- Country specific
- Protected by the Constitution of a country
- Implemented and enforced by the court of law of a country
Intro to Law & Security (and how does it relate to security)
Why is there tension?
→ security crises might pose fundamental challenges:
- The leitmotif of the tensions between security and liberty is
recurrent in democratic debate –in connection with wars, but
also in relation to other cases where internal or external threats
are seen as requiring the sacrifice of liberty to guarantee
survival.
- Such tension can hardly arise in non-democracies, where
liberties might be perceived as a threat themselves by those in power, while a
democracy cannot survive as such without safeguarding liberty
- The question of the relations between liberty and security, and the very working of
democracies, has been experienced and debated in connection to the attacks of 11
September 2001 but also after the so-called migration crisis and the renew series of
terrorist attacks between 2015 and 2018 in Europe (and the diverse responses to
them)
Especially in democracies:
- reminder security is a precondition for the proper functioning of a liberal order
- likely to unveil contestation and dissatisfaction with existing legal limits on
government’s powers
→ public pressure
→ what is the role of legal limits on the executive when citizens themselves demand
more security and allowing officials legal flexibility of action seems necessary?
The dilemma?
→ Existence of contrasting arguments, especially when governments seek to to prevent a
security crisis rather than simply react to it (Posner 2006)
○ in order to prevent crises of such proportions, the executive must have the means to act
proactively making of discretionary powers a tool for crisis management
○ Liberty-reducing policies reduce security
Let’s think about this…
What are the limits to the exercise of monopoly of use of force in democratic societies?
- Breaches to legal principles might be considered justified and normalized..but to what
extent?
- What kind of impact do these measures have on social, civic and human rights and
freedoms of citizens & specific minorities and groups such as religious communities
or migrants?
Importance of law & security
→ knowing about the law and how it interacts with changing security necessities is crucial
- As future security experts and practitioners you will be able to evaluate the correct
balance to be found between security policies and the legal and political status quo
, - The implications and impact of changes and contestation to existing legal regimes:
what does it mean to suspend rights in the name of security? What kind of society do
you want to be part of and contribute to as a citizen and security expert?
- Different types of (in)securit(ies)?
Connection between legal regimes & interpretation of security/securities
- different responsibilities of security depending on the applicable legal regime and
existing political regime
IMPORTANT:
→ Law and legal regimes are the product of certain specific historical development and
predominance of certain political interests in that specific moment
→ BUT…societies and (in)securities change: legal regimes should change
→ SO...need to understand what regime applies a certain ‘security’ situation
→ BUT ALSO: the problems and tensions between different interests/values associated with
a certain political setting..
→ different legal system & different political regimes, the way states perform their duty of
granting security and order varies around the world
Law in law & security
● Law as an instrument to exercise control: (1)
● Law as an instrument to protect citizens: (1,2,4)
● Law as an instrument to implement normative positions: (2)
● Law as an international construct to limit states' ability to exercise force: (3)
● Law as a way to cooperate among different actors: (3)
Law
- the law is a set of legal rules that governs the way members of a society act towards
one another
- behavioral codes that guide people into actions that conform to societal expectation
- laws are norms supported by codified social sanction
- different levels of law to respond to different necessities
Where does the law come from?
- the state is sovereign
→ power of a government to reign
→ over its territory
→ without any interference
,Sovereignty
the state is superiorem non recognoscens: the highest authority within one country
- peace of westphalia (1648)
- the state gets to be a ‘legitimate’ actor within the international system with the other
‘legitimate’ states
- principle of non-interference in internal affairs
- but…things have changed - also thanks to international organizations (i.e. UN)
→ human rights paradigm
Where does the law come from?
- the sovereign has monopoly of the use of force (legitimate violence)
- the ‘social contract’ → freedom per security
→ thomas hobbes
→ john locke
So… what are the functions of law?
→ Order (security)
- essential prerequisite of a society
- by providing order, law provides the security that facilitates social
and political development
→ justice
- more contested - different philosophical and political definitions
→ overall:
- fairness
- moral rightness
- a scheme or system of law in which every person receives their due from the
system, including all rights, both natural and legal
So… what are the functions of law?
- ON JUSTICE SPECIFICALLY… Derrida (1990): justice as a POLITICAL CONCEPT
● Doing justice means giving what is DUE → balancing competing claims and dealing fairly
with all parties
● Necessary ideal, a horizon towards which the best impulses of human civilisation are
directed
● Think about the debate between equality & equity
→ Different sources of law
● Constitution
● Legislation (national & international)
● General administrative decisions
● International treaties
● Recognized custom
● Case law/ Jurisprudence
● Religious texts
→ Different legal systems
- civil & common law
- religious law
- customary law
- mixed systems
, Different legal systems (Check Wacks 2008, Chap. 1)
1. customary law
- unwritten law
- oral, informal and flexible
- related to culture
2. religious law
- law integral to religious sources & sanctions are religious
3. civil law
- romano-germanic (continental)
- codified (legal texts + scholars)
4. common law
- anglo-american
- originally unwritten case law + precedents
…. BUT.. cross pollination!!
Different levels of law
→ national law
- National boundaries
- Individuals
- Internal domestic affairs
- Law enforcement to protect legislature and court system
→ EU law
- Transnational, regional boundaries
- Individuals and ‘organizations with public function’
- Independent court system
- Law enforcement to protect legislature and court system
→ international law
- Relationship state & other subjects
- External affairs of a State but development of international criminal law (that applies
to individuals)
- International Court System based on treaties
- No international law enforcement system
Human & fundamental rights
→ Human rights
- Rights enjoyed by all humans irrespective of race, sex, gender, religion, language, or
any other status
- Universal
- Protected internationally
- Promoted and applied by the ONU
- Documented by the International Bill of Human Rights and a series of international
conventions
→ Fundamental rights
- Essential rights enjoyed by every citizen of a country irrespective of creed, place of
birth, religion, sex, gender or other status
- Country specific
- Protected by the Constitution of a country
- Implemented and enforced by the court of law of a country
