Abstract
By legal insecurity is here meant infringements on the part of the state on the individual’s personal sphere (IPS). The most common among such violations are violence, restriction of freedom of movement (including choice of residence) and activities, intrusion and harassment. The state has a monopoly of infringements on IPS, e.g., by punishment. In a law-state this monopoly must be regulated and controlled legally in a very strict manner and this is what Chap. 8 is about. In this connection criminalisation is discussed. A closer investigation how legal security is justified by the value of a life of human dignity follows, where a lot of examples are used. The discussion of justification leads to an excursus on evaluation of evidence. After that I try to clarify some important relations between legal security and the other law-state values. Finally some principles intended to guide legal functionaries and politicians when they take a stand on conflicts between legal security and other social values such as the security of the state, e.g., the principle of proportionality, are formulated. The principles are tested against the controversial Data Retention Directive (2006) in European Union Law. The chapter concludes by some reflections on what issues are needed to subordinate to legal regulation in order to warrant legal security.
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Notes
- 1.
For an illuminating discussion of this topic see D. Husak, Overcriminalization. The Limits of the Criminal Law, 2007.
- 2.
C. Beccaria, Dei delitti e delle pene, 5th ed. (the Haarlem-edition), 1766 [1970], § II. Diritto di punire. My trans.
- 3.
I. Kershaw, Hitler. 1936–1945. Nemesis (Penguin Books, 2001), p. 250.
- 4.
- 5.
For detailed information, see Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation by Delegates of the International Committee of the Red Cross, Feb. 2004, Article 15-6 Investigation of the 800th Military Police Brigade (The Taguba report) by Major General Antonio M. Taguba, 2004. For presentations and commentaries of these and other investigations, see Mark Danner, “Torture and Truth”, The New York Review of Books, Vol. LI, Number 10, 2004, pp. 46–50, ibid., “The Logic of Torture”, The New York Review of Books, Vol. LI, Number 11, 2004, pp. 70–74, ibid. “Abu Ghraib: The Hidden Story”, The New York Review of Books, Vol. LI, Number 15, 2004, pp. 44–50, and Anthony Lewis, “Official American Sadism”, The New York Review of Books, Vol. LV, Number 14, 2008, pp. 45–49. About use of torture by US officials see also Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (2008). My examples are taken from Danner’sand Lewis’s articles.
The most terrifying among chambers of horrors exposing outrageous use of violence by state functionaries—as well as restraints on freedom of movement and activities, intrusion and harassment—are, of course, the regimes of Hitler and Stalin. For the latter, see Anne Applebaum, Gulag—a History, 2003.
- 6.
Danner, “Torture and Truth”, p. 46.
- 7.
Ibid. p. 47.
- 8.
Mark Danner, “Abu Ghraib: The Hidden Story”, p. 48.
- 9.
Anthony Lewis, “Official American Sadism”, p. 45, n. 1.
- 10.
Ibid. p. 45, n. 3.
- 11.
Ibid. p. 47.
- 12.
Quoted from Mark Danner, “Abu Ghraib: The Hidden Story”, p. 45.
- 13.
Quoted from Mark Danner, “Torture and Truth”, pp. 46–47. Originally published in The New York Times, May 5, 2004.
- 14.
Ibid. p. 47.
- 15.
Mark Danner, “The Logic of Torture”, pp. 70–71.
- 16.
A suggestion made by Professor Iain Cameron, Uppsala.
- 17.
- 18.
Here is the place to recall Nietzsche’s famous dictum “Wer mit Ungeheuern kämpft, mag zusehn, dass er nicht dabei zum Ungeheuer wird. Und wenn du lange in einen Abgrund blickst, blickt der Abgrund auch in dich hinein”. [He who fights monsters must take care, lest he becomes a monster too thereby. And when you look for a long time into an abyss, the abyss looks into yourself, too.] Friedrich Nietzsche, Jenseits von Gut und Böse (1886), aphorism 146.
- 19.
See case 66/82 Fromançais v. FORMA [1983] European Court Reports 395.
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Frändberg, Å. (2014). Legal Security. In: From Rechtsstaat to Universal Law-State. Law and Philosophy Library, vol 109. Springer, Cham. https://doi.org/10.1007/978-3-319-06784-1_8
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