Liberty and Security E-Book

Conor Gearty

• Herausgeber: John Wiley & Sons
• Kategorie: Geisteswissenschaft
• Serie: Themes for the 21st Century Series
• Sprache: Englisch

Seitenzahl: 233

Veröffentlichungsjahr: 2013

Beschreibung

All aspire to liberty and security in their lives but few people truly enjoy them. This book explains why this is so. In what Conor Gearty calls our 'neo-democratic' world, the proclamation of universal liberty and security is mocked by facts on the ground: the vast inequalities in supposedly free societies, the authoritarian regimes with regular elections, and the terrible socio-economic deprivation camouflaged by cynically proclaimed commitments to human rights.

Gearty's book offers an explanation of how this has come about, providing also a criticism of the present age which tolerates it. He then goes on to set out a manifesto for a better future, a place where liberty and security can be rich platforms for everyone's life.

The book identifies neo-democracies as those places which play at democracy so as to disguise the injustice at their core. But it is not just the new 'democracies' that have turned 'neo', the so-called established democracies are also hurtling in the same direction, as is the United Nations.

A new vision of universal freedom is urgently required. Drawing on scholarship in law, human rights and political science this book argues for just such a vision, one in which the great achievements of our democratic past are not jettisoned as easily as were the socialist ideals of the original democracy-makers.

Leseprobe

Table of Contents

Cover

Title page

Copyright page

Acknowledgements

1 Introduction

2 Struggling Towards the Universal

Liberty Captured by Security

Escaping Hobbes?

Managing Dysfunction

Imperfect Protectors

Universalism under Attack

3 The Global Stage

Security Predominant

Blacklists

Fight-Back

Drifting beyond Law

4 The Enemy Within

Alibi for Oppression

Dressing the Window

The New Normal

International Pressure

Uncertain Futures

5 A Very Partial Freedom

An American Dream

Commander-in-Chief

Turning to the Law

Neo-Democracy Comes to America

Belmarsh

The Habit Spreads

6 Cultural War

Doing the Right Thing

Global Clamp-Down

The Opening Seized

A New Front Against the Different

7 Returning to Universals

Human Security

Fighting Denial

Liberty and Security for All

Index

Copyright © Conor Gearty 2013

The right of Conor Gearty to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.

First published in 2013 by Polity Press

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ISBN-13: 978-0-7456-4718-0 (hardback)

ISBN-13: 978-0-7456-4719-7 (paperback)

ISBN-13: 978-0-7456-6998-4 (Multi-user ebook)

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Acknowledgements

This book began life as a couple of talks at my workplace, the London School of Economics, and also at the School of Oriental and African Studies. I am grateful to colleagues who came along for their very helpful input into the ideas that I developed there and which have now grown into this book. In particular, I’d like to thank Alasdair Cochrane, Phil Cook, Neil Duxbury, Steve Hopgood, Paul Kelly, Chandran Kukathas, Annabel Lever, Emmanuel Melissaris, Tom Poole, Peter Ramsay, Mike Redmayne, and Leslie Vinjamuri for their insightful comments and general support. Later on I was very grateful to Aoife Nolan for reading pretty well the whole manuscript and making many helpful suggestions. The book is dedicated to my two lovely children, now pretty well grown up, Eliza and Owen.

1

Introduction

What do we mean when we use the terms ‘liberty’ and ‘security’? The first has a range which takes it across a spectrum, from the essence of human freedom at one end, to a far narrower statement about the need for unrestrained movement at the other. Liberty is sometimes thought of as concerned with the individual qua individual. On other occasions, it is presented as the individual within society. At one moment the word seems to be about the need to be left alone by all authority, while at the next, it positively suggests active participation in the government of the state. No one seems quite sure whether ‘liberty’ is – in any of its incarnations – the same as ‘civil liberties’, and even if it is, there are, as Jeremy Waldron has pointed out, at least four separate meanings to the latter term.1 As for the lawyers, in pre-rights days they got into the habit of thinking of ‘civil liberties’ as primarily concerned with the law on the control of police powers, and this is a space that the subject still occupies in practice, in the UK at least and sometimes further afield as well.2

The term ‘security’ has a similar range and equivalent levels of vagueness. Used in conjunction with liberty, security has historically been taken to refer to ‘national’ security, to the protection from external and perhaps even internal threat of particular lands organized as states.3 The field of counter-terrorism has grown out of this orientation of security towards territorial protection. Taking a different tack, we now also see the idea of security being reconfigured for the global age as ‘human security’ – an approach to protection that focuses on people, not places, and which tries to get beyond immediate attacks on freedom to systemic failures in the public sphere that render us all (in a broader sense) less secure.4 Lurking in the background is the idea of security as a guarantor of well being, captured in a contemporary term, ‘social security’, now so familiar to us that we have forgotten the startling idealism and ambition that once oozed from these two words.5

Paradoxically this uncertainty over the meaning of ‘liberty’ and ‘security’ has not detracted from their power as positive signifiers within many contemporary discourses, societal, political and legal. The first suggests freedom, an unconstrained self, a life lived to its full, flourishing limit. The second secures the space for such a life, hedging it against the threats that might destroy it, seeing off the intrusions that threaten to make this success impossible. In this way, security is the platform for liberty, simultaneously constituting a launching pad and safe landing place for the soaring self. These words echo across the European languages (‘liberté’; ‘libertas’; ‘sécurité’; ‘securitas’) but also find expression in other tongues with different etymological roots: the practical impact of these phrases may be confusing but the thought behind them (the free person safe from harm) is universal.

This book is about the shape that these words have taken through time and from place to place, how much they have been realized and for how many, and what their standing is today. What mainly occupies us here is not their core meaning so much as it is the reach of the benefits that each so powerfully evokes. It is the ‘for how many’ issue that mainly concerns us: to whom are liberty and security to be extended? Is it to be to all or just the few? If it is to be to all, is it to be through community, state, non-state, regional or international action? If guaranteed for all, how practical in their reach do these theoretical commitments prove themselves to be, or – to put this in a cruder way – for all the fine talk, what is truly going on on the ground?

The central arguments over liberty and security have really always been about this issue of remit rather than of meaning. They are reflected in the growing presence of walls in divided societies, blatant efforts by the ‘haves’ to shut out not only the sight of the ‘have-nots’ but also any opportunity the unlucky many might have to glimpse what a better future would look like. Israel’s ‘partition fence’ might be the most well known of these but it is by no means the only one.6

To ask if liberty is constituted by ‘freedom from’ external constraint rather than ‘freedom to’ access the necessities for a good life is immediately to raise this question of whose freedom we have in mind. Our answer will reveal whether we are thinking of those already in a position to live a decent life (and who want to protect it) or those for whom presently it is a faraway dream. Equally when we talk of ‘personal security’ or ‘national security’ or ‘human security’ or (even) ‘social security’, it is immediately clear that our differences with each other will be mainly about who is to enjoy these valuable protections, rather than what it means to be safeguarded in these various ways.

This book tracks the breadth of these terms, tracing the fluctuating range of beneficiaries to be found within their remit. It argues as well for a particular approach, one that regards the benefits of liberty and security as being rightfully available to all, and thereby capable of reaching (being required to reach) the many rather than the few. The book does not argue the ethic of such a perspective from first principles. Instead it rather takes the moral desirability of universality for granted – as most societies now say they do (whatever about how they truly act). Viewing liberty and security in this all-inclusive way shapes how I approach both the past work these words have done and the present-day reach that (I say) should be consistently accorded to them.

This is not as easy as it might seem. If we look beyond the present, neither term has been routinely understood in such broad terms; indeed (as we shall see) the primary understanding of liberty and security in the pre-democratic era was always narrowly selective as to who was to benefit from the opportunities afforded the one and the safety delivered by the other. It was only when the radically egalitarian idea of community self-government took hold on a national scale that liberty and security found themselves open to being wrenched out of their elitist corrals and offered to all. Democracy gave the universalist reading of liberty and security an entry point and strong support, but it could not by itself deliver effortless supremacy for the reach that this approach affords these words. This was because (as we shall see shortly) the democratic victory was itself incomplete, a freedom for all that was invariably not forged afresh but rather tentatively grafted onto a pre-existing society that had been designed for the few. Old elite readings of liberty and security persisted into the democratic era, jostling for space with their egalitarian interlopers.

And now, as we drift towards a post-democratic model of government (or as I will be calling it here ‘neo-democratic’), a polity that increasingly wears democratic clothes as a disguise rather than a proud necessity, we see these old pre-democratic meanings of the terms returning into popular use, underpinning and explaining readings of liberty and security, which remain ostentatiously universal but are now falsely so – words that hide inequality and unfairness by seeming to reach all when in fact in their practical impact they are tailored to the few. It is this sense of double standards, of saying something and acting in a way that is quite different, that underpins the ethic of universalism which drives forward the central argument of this book.

Risking repetition, let me put this in another way, since it maps out so much of what is to follow. I am not interested here in precise definition so much as I am in reach. My thesis is that we need to recover and re-energize true universalism in the way that we use these terms ‘liberty’ and ‘security’. Here are two words that grew to prominence at a time when the work they did was at the service of the few but which, under the energetic influence of the democratic impulse, became the goals towards which it was right for government to work on behalf of all. Now this expansionist trend is being halted by a drift away from democratic fundamentals and back towards elite readings of liberty and security, albeit these versions remain cloaked in apparently universalist language, an echo of past, more egalitarian times. My contention here is that we need to grab back and restore these democratic readings before (I am tempted to add) it is too late and we have forgotten what it means for everybody to enjoy these great life-chances, not only to imagine what is behind the wall, but to walk through to that better life as well.

The version of liberty and security that I argue for here has three important allies in its quest to impose its version of the truth; large-scale movements that have had a beneficial impact across the world. These are (as we have already seen) the move towards democratic government, and also the rule of law and respect for human rights. The first is clearly the main driver behind the insistence that the privileges of the few should be made available to the many. The second pre-dates the democratic turn but complements it, maintaining that everyone must be subject to the same laws and (just as critically) that the maker of any given law should not at one and the same time be its authoritative interpreter. The third, the human rights movement, is of more recent origin (at least insofar as we understand the idea today); the very way that its self-description dedicates itself to all humans reveals the commitment shown by human rights to an egalitarian vision of the world, one in which we all should have a right to the freedoms that were once assumed to be the privilege of the few. And human rights today also reach beyond the protection of liberty (narrowly defined) to encompass rich readings of human security, the sort to which I alluded a moment ago and which democratic government once made popular.

The neo-democratic turn wants us to regard democracy, the rule of law and human rights as outmoded. It wants us to see these ideas as ‘old hat’, incapable of coping with the challenges of the modern global world, the rise of extremism, climate change, the movement of capital, population growth, refugees, etc. Now perhaps (as will sometimes be suggested in the chapters that follow) there is a link between the current supremacy of the market (hiding under the pseudo-scientific ‘neo-liberal’ label) and the neo-democracy that I am describing. The connection strikes me as present but it is not a necessary link in my argument. Whatever their underlying perspective, the proponents of neo-democracy (conscious and unconscious) are happy to see the terms ‘liberty’ and ‘security’ contaminated by misuse, forsaken by those who should love them most as creatures of illusion and hypocrisy. True liberty and security – that is liberty and security for all and not just the already empowered few – depends on recovering the finest meanings of these terms and then using them as offensive weapons against the onward surge of the over-privileged minority whose ideal world would see liberty and security as their exclusive preserve alone. They must be resisted.

Notes

1 J. Waldron, ‘Security and Liberty: The Image of Balance’ (2003), Journal of Political Philosophy, 11: 191, 195.

2 See for example, R. Clayton, H. Tomlinson, E. Buckett, and A. Davies, Civil Actions Against the Police, 3rd edn (London: Sweet and Maxwell, 2005).

3 See, for example, the remit for security adopted by the Institute of Public Policy Research, Shared Destinies: Security in a Globalised World. The Interim Report of the IPPR Commission on National Security in the 21st Century (London: IPPR, 2008).

4 There is a good account of the rise of the term in G. Oberleitner, ‘Porcupines in Love: The Intricate Convergence of Human Security and Human Rights’ in A. Melbourn and G. Gunner (eds), Human Rights – From the Frontiers of Research (Stockholm: Justus Förlag, 2005).

5 See the Beveridge Report, Social Insurance and Allied Services, Cmnd 6404 (November 1942), describing its vision as a ‘Plan for Social Security’ (para. 10).

6 E.g. those in Belfast, the US-Mexican border and the Indo-Bangladesh barrier. See the work of Niall Farrell on separation walls at http://www.marketplace.org/topics/economy/separation-barriers-world [last accessed 17 June 2012].

2

Struggling Towards the Universal

Liberty Captured by Security

Of course it is possible to go back to antiquity in our search for the origins of the idea of liberty. Like Benjamin Constant we could start with the Greeks, as in his justly famed lecture in 1819, The Liberty of the Ancients Compared with that of the Moderns.1 Or we could dive into the world of Niccolò Machiavelli, a writer who ‘uses “liberty” in a bewildering variety of senses’ the effect of which is to make it very hard ‘to pin down his idea with any precision’.2 When discussing such perennially important terms there will always be an element of arbitrariness to whatever is the chosen starting point. I am beginning here by making a journey back into the 1640s, to the turmoil of the English civil wars from which so much of our contemporary understanding of liberty and security has flowed, not only in Britain and the US but around the world as well. The various threads to their meaning that emerged then endure today, strongly influencing the question of remit upon which, as I have said in the introduction, I mainly want to focus.

During these vital years, a brilliant apologist for English royal power grabbed hold of the idea of ‘liberty’ – which was then the most progressive term in the vocabulary of the radicals of the day – and, by dint of a phoney divide with ‘security’, turned it from an engine of freedom into a rationale for servitude. Thomas Hobbes may not have been the first servant of power to distort progressive terms to suit his masters, and as we shall see in the course of this book he was by no means the last. But he is the most important, with an influence that as we say these days has ‘gone global’. So this enquiry must start with the Latimer school’s star pupil, later one of Oxford’s most famous graduates, and in early adulthood, a man who earned his bread as the sometimes teacher and afterwards general intellectual factotum of the second Earl of Devonshire.3

In his first major work, Elements of Law,4 Thomas Hobbes saw liberty in fairly simplistic terms as a capacity to act or to forbear from acting, which capacity leads naturally to deliberation as between rival paths (should I go with my appetites or let my fears triumph?), which in turn produces a decision, the will to act or not to act as the case may be. What is marvellous about this, and for its day, highly original, is how it relegates reason to a sideshow to the main event, which is all about emotions – feelings, wants, aversions, and so on. In this world of ‘blameless liberty’, we naturally desire what is good for us and seek to avoid what is bad for us: and above all for Hobbes, this entails fleeing from death. As Quentin Skinner puts it in his book Hobbes and Republican Liberty, it was for Hobbes obvious that ‘[w]e have a natural tendency … to do everything we can to preserve our lives’.5 Because this disposition is so very reasonable, we must furthermore have the natural right to act to preserve ourselves at all costs. The last phrase is of course the rub: there is not enough of the world to go round, and there are too many of us all exercising our natural right to do whatever we want at the same time, for us all to be able to be simultaneously satisfied. Consequently, in Hobbes’s famous phrase, the life of man is ‘solitary, poor, nasty, brutish, and short.’6 To quote Skinner again, ‘[t]he desperate paradox on which Hobbes’s political theory is grounded is that the greatest enemy of human nature is human nature itself.’7

The way out of this conundrum lies in obliging ourselves to forbear from acting according to our will and power. This requires submission to a sovereign to whom we are henceforth to be ‘as absolutely subject … as is a child to the father, or a slave to the master in the state of nature’.8 Because liberty is impossible, our submission to the protective force of the sovereign is practically absolute: true, Hobbes does have some sense of inalienable rights, but these do not figure prominently in his thinking, and he never seriously contemplated any kind of right of revolution against an iniquitous sovereign. His description of his later book Leviathan9 as ‘a work that now fights on behalf of all kings and all who, under whatever name, hold regal rights’10 stands as a description of the author as well as of much of his output.

Hobbes completed Elements in 1640, after which his anthem to sovereign power was rather undermined by facts on the ground, with the then English king Charles I being drawn into an escalating political, and then military, confrontation with Parliament. At the first hint of such trouble, in November 1640, Hobbes bolted. His destination was the France of Cardinal Richelieu and the Bourbon throne – where his comforting views were no doubt regarded as more than making up for his non-Catholicity. As the 1640s progressed, it became increasingly obvious that Hobbes’s version of liberty was falling entirely out of kilter with the republican ideals of the progressive forces that were pushing their way to power in England.

This is the alternative story about liberty and security, anticipated in the Introduction, which I need to draw in from the margins of its day and hold at the centre of my narrative for a moment. On this account, liberty was tied up not with what you were able or not able to do, but with the sort of society in which you lived: if the governing regime was despotic, you were unfree, and this was the case, however unimpeded you were so far as day-to-day movement was concerned. Liberty was about living in a free state; without such freedom, the practice of your conduct was bound to be so cautious and so dependent on the power of others, as to be effectively a life of servitude. The most famous example of this aspect of seventeenth-century English radicalism were the Levellers, ‘a disciplined political group that came into being no earlier than 1646’ albeit ‘[w]ithin three years, they were a spent force’.11 Their manifesto of 7 July 1646 A Remonstrance of many thousand citizens … 12 ‘defended the basic liberties of the people including freedom of the press and freedom from impressment into military service’13 and attacked the laws under which they then laboured as ‘unworthy a free people’.14 The Levellers produced, on 29 October 1647, An Agreement of the People, ‘a landmark in constitutional history’,15 which apart from setting out the rudiments of ‘a system of representative, responsible, accountable, and democratic government’16 demanded also that ‘laws ought to be equal, so they must be good, and not evidently destructive to the safety and well being of the people’.17 In this last phrase you have in a nutshell what I am arguing for in this book, a vision of security (‘safety’) and liberty (‘well being’) which is for all (‘the people’).

From his secure base abroad, Hobbes took these kinds of Republican views on directly, first in De Cive18 and then most famously of all in Leviathan. Far from everything depending on how a country was governed, a ‘free-man is he, that in those things, which by his strength and wit he is able to do, is not hindered to do what he has a will to do’.19 If I choose not to do something merely because I dread the consequences, this does not mean that I am not free to do it; it merely means I do not want to, that is, I am still free. Hobbes defines external impediments very narrowly, therefore broadening the range of freedom – we are free even if we live in a despotic country, cannot afford to eat, and feel we have to comply with damaging laws for fear of vicious punishment.

This version of individual liberty fitted well with Hobbes’s grand scheme of liberty-disavowal, developed in Elements and re-stated in his later work, because it is largely residual. The few inalienable rights apart (on which, as noted above, Hobbes is not very clear in any event), we are free only insofar as we are not stopped from doing something, and the sovereign’s judgment as to when and who to stop can never be contradicted. In particular, what the sovereign does in the name of security goes, and goes without saying, so if it requires that a person be impeded by the force of the state’s jailors, then that is simply that – and if he (or she) obeys the law merely because of a wish to avoid this unpleasant eventuality, then such a person remains free even then, for (as just mentioned) choosing to obey a law does not count as an external impediment to liberty.

Of course, merely to state Hobbes’s theory in the bald way I have just done is to seem to underline the depth of his defeat as an important and influential thinker, at least so far as his role as an apologist for authoritarianism is concerned. The collapse of the royal forces of Charles I, followed shortly afterwards by the failure of the Commonwealth that succeeded him, led to a move to the ‘balanced constitution’ of Charles II, which from 1660, quite explicitly resiled from the absolutism of predecessor regimes. After 1688, increasingly the idea of representative government was to take hold, with the democratization process from 1688 to 1948 gradually turning what had by now become the United Kingdom into a republic in substance if not in form. Accompanying this democratization was a large-scale movement to universal liberty as well.

And of course these developments were not unique to England/Britain, though this state was the one that was to foreshadow so much elsewhere. From the nineteenth century on, all the developed nations experienced the same push towards ever-widening franchises with first working men and then both men and women securing an entitlement that only a few generations before would have been incomprehensible to informed opinion. The defeated Axis nations and the colonial states were to follow in the second half of the following century and after 1989 much of the post-Soviet world as well. By the start of the third millennium, therefore, this republican version of freedom – living in a free state – gave every appearance of having been apotheosized into a universal right to democratic government, indeed some human rights specialists even talked in these terms.20

With this shift to popular government has come a new sense of ‘security’, one (anticipated in our Introduction) which has combined resistance to external threats with a new solicitude for the people. Broad readings of security have come into play, echoes of what the Levellers had been thinking about when calling for laws better focused on the ‘safety’ and ‘well being’ of the people. Starting in Bismarck’s Germany in the nineteenth century, and gradually spreading to the rest of the emerging democratic world, the idea of security as a protection for all within a state gradually took hold. The United Kingdom had its own particular contribution in the form of first the 1909 minority report by Beatrice and Sydney Webb into the iniquities of the then well-entrenched poor law system21 and subsequently in the actions of later Liberal and particularly Labour administrations. The description of a ‘welfare’ (as opposed to ‘warfare’) state appears first to have been used by Archbishop William Temple during the Second World War.22 At the same time, in the United States, President Roosevelt was reconfiguring the idea of freedom to include not only ‘freedom from fear’ but also ‘freedom from want’, by which the president meant ‘economic understandings which will secure to every nation a healthy peacetime life for its inhabitants’.23 In the post-war world of civil and political, but also economic, social, and cultural human rights, it was certainly not Hobbes’s vision which appeared to have triumphed, but that of the Levellers – ‘rebels of the present time’ as Hobbes had called them.24

Escaping Hobbes?