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Security, Rights and Equality

This book opened with recent examples of terrorism, all of which are aimed at undermining the security of citizens of democratic states. The general response to these attacks has been a call for greater security, often via policies that constrain (that is, limit the scope of) or restrict (that is, deny) the exercise of some key democratic rights. After the truck attack in Nice, there were calls for greater surveillance, for which citizens of France were asked to sacrifice some privacy. After Anders Breivik shot and killed nearly 70 people participating in a summer camp associated with a political party he detested (one he believed was responsible for admitting the Muslims he believed were a scourge in Europe), there were calls for greater infiltration of internet spaces known to support and mobilize those with far-right views, one consequence of which might be restricted access to platforms in which to exercise hateful speech. What these examples highlight is a common framework for understanding the choices that democratic states are said to confront: to fight terror, democratic states must choose between protecting national security and protecting civil rights. In the most common way of expressing this choice, security must be balanced against rights, and the goal is to find the best balance between them (Newey 2012; Reed 2013). The supposed best balance often translates into a priority for security since - say many national security authorities - rights are of no use if it is unsafe to use them.

However, this chapter argues, the idea that political actors in an era of terrorism are just tasked with finding the appropriate balance between "security" and "rights" is too simple to help adjudicate the difficult cases with which this chapter began. Instead, it proposes two modifications in order to better assess the challenges democratic states face in combatting terrorism. First, security must be understood to have an individual ("I am secure") and collective ("the city of Ottawa is secure") dimension. Second, democratic states may face situations in which a community can overall be more secure only if the rights of all - or only some - citizens are constrained or restricted. Where rights constraints are proposed as a way to protect security for a community (especially where they impact some but not all citizens), evaluating the legitimacy of the proposed constraints will require attention to the equality that is central to democratic politics.

What Is Security?

For political theorists, the original consideration of security and its import to individuals is usually traced back to Thomas Hobbes and John Locke. For both Hobbes and Locke, one reason to move from the state of nature to a collectively governed political community is to increase one's individual security. For Hobbes, life in the state of nature is one of perpetual war, whereas for Locke life in the state of nature is generally peaceful. In both cases, individuals are motivated to resolve the insecurities of the state of nature; whereas, for Hobbes, these insecurities are so severe that they prompt individuals to cede nearly all of their rights to the sovereign, for Locke, they are comparatively minor, and so individuals cede only so much authority as is needed to render life in society one in which more freedom can be exercised. Correspondingly, Hobbes believes that the sovereign to whom power is ceded must possess nearly total power in order to preserve security for citizens, whereas Locke believes that the governing authority is ceded only the power needed to ensure that citizens can live in freedom (Meisels 2008).

Political theorists have recently done additional work to define "security." Jeremy Waldron draws on Hobbes' account to note that the core of security lies in physical security (Waldron 2003, 2006). Whatever else it means to be secure, it certainly means that one is free from physical violence and its threat; this is the "pure safety" account of security. Waldron observes that security also means that one's material possessions are secure - one can leave the house without worrying that it will be burgled - and that there is an expectational dimension to security. A secure individual believes she, and her belongings, are secure presently as well as into the future - i.e., that the conditions that shape her life, and in which she makes choices, are likely to continue into the future.

The sense of one's future security has objective and subjective components. One can be objectively secure or insecure - the likelihood that one will be the victim of a terrorist incident, or that one's home will be burgled, is measurable (Wolfers 1952, 485). However, even where someone is objectively secure, she can at the same time believe that she is highly insecure. Where someone is fearful of physical violence, or believes that her way of life is under threat, even where it is objectively not the case, she is insecure in a meaningful way.

In reality, no individual, and no state, can be perfectly secure (Baldwin 1997, 15). This means that there is no set of policies that, if adopted, will fully protect a state and its citizens from the dangers of terrorism. Rather, security exists on a continuum. Individuals and states can be more or less secure; and policies can render citizens and states more or less secure. As a result, one challenge in deliberations around whether to adopt a particular "security-protecting" policy is that citizens will disagree about the risks to security they are willing to accept; for some, small risks will render them subjectively insecure, and for others, relatively larger risks can be borne without damaging their sense of security.

Notice the dual usage of the term "security" running through the discussion above. Political actors raising the importance of "national security" seem to be describing a community; Waldron's theorizing, however, describes individuals. In fact, both are apposite: security is properly understood as a feature of communities and of individuals. To return to Waldron's "pure safety" starting point: an individual is secure to the extent that she is physically safe and her subsistence needs are met, presently and (she believes) over time. Similarly, a community is secure to the extent its members are physically safe and generally able to meet their subsistence needs, presently and (they believe) over time.

One might propose that to say that a given community is safe is equivalent to saying its individual members are safe. On this view, the security of the community simply is the aggregated security of its individuals. But this does not seem quite right. On the contrary, the observation that "security" can be a feature of communities and of individuals throws into relief the "distributional" questions raised by security. That is, security can be distributed unequally in a community (Waldron 2006). Some neighbourhoods in a state can be safer than others; some are known for having more drug use or gang violence than others. As well, some individuals in a community can be more secure than others - in most communities, men are still more secure than women, who continue to face higher risks of domestic violence and assault. An overall safe community, in other words, can be composed of citizens, of whom some are safer than others.

Which Rights Matter?

When Ronald Dworkin proposed that rights should be understood as trumps against the majority's preferences, he was worried about a situation in which minorities are asked to sacrifice rights in exchange for protecting something of value to the larger community (Dworkin 1981). Dworkin's general worry was that democratic states may sometimes believe that a particular policy, which is preferred by a majority, can legitimately be adopted, even though it violates the rights of a minority. Maybe that minority is looked down upon in polite society, or is marginalized in a particular community, and this in part explains why a democratic majority might be willing to violate, or refuse to protect, its rights; when democratic states refused to grant LGBTQ persons the right to marry, for example, the refusal stemmed in part from a discomfort with, and in many cases hatred of, homosexuals. Or maybe - and this is what is at stake in strategies adopted to fight terrorism - the majority believes that the security gain from pursuing particular policies is so significant that a particular minority can be asked, and should be willing, to forsake rights, in the name of collective security for everyone.

In response to this worry, Dworkin proposed that rights are trumps - i.e., there are certain rights that are so important that they can, in effect, trump the majority's preference. What rights should these be? Usually the answer to which rights should be treated as so important that they should trump majority preferences is the set of rights that are foundational to democratic rule, including rights to due process, to bodily integrity, to freedom of speech, conscience, association, religion and so on (Rawls 1993). A state must protect these rights for all citizens in order to rightfully be described as democratic.

However, in cases of emergency, including terrorist emergencies, many...