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Democratic Danger for Democracy? The Precarious Balance Between Security and Freedom

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Democracy and Crisis
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Abstract

The balance between security and freedom has been a concern for political philosophy as well as for empirical political science ever since; since the terrorist attacks of 11 September 2001, it became a highly topical subject. The key question of the chapter is how Western democracies reacted to terrorist threats in the aftermath of 9/11 and whether these reactions themselves pose a threat to democracy.

The analysis shows that the widespread assumption that civil liberties have been restricted in almost all liberal democracies after 9/11 cannot be confirmed across the board. Severe restrictions in the freedom of religion, the strength and impartiality of the legal system, equality before the law, habeas corpus rights, and the right to physical integrity occurred in some Western democracies, but the restrictions vary from country to country. While the Nordic countries and the Netherlands, for example, maintain their high base level for civil liberties over time, moderate to strong decline takes place in the countries like Germany, Austria, the UK, Switzerland, and Portugal—and very strong and even dramatic decline in France, Italy, Spain, and the USA. Surprisingly, neither liberal party programs of governments nor a well-developed media system, federalism, or the strength of constitutional courts do effectively reduce the curbing of civil liberties in times of a dominant security discourse. Instead, only liberal rule of law traditions can at least attenuate the decline of individual liberties.

There was a ‘before 9/11’ and there was an ‘after 9/11.’ After 9/11, the gloves came off. [Quoted from Büsching (2011)]

Cofer Black, former director of the CIA Counterterrorist Centers (CTC)

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Notes

  1. 1.

    Already Isaiah Berlin considered the preference for individual liberties to be a comparatively modern (elite) phenomenon. “The domination of this ideal has been the exception rather than the rule, even in the recent history of the West. Nor has liberty in this sense often formed a rallying cry for the great masses of mankind” (Berlin 1969, 129).

  2. 2.

    Responsiveness is the degree of agreement between the preference orders and action of elected members of parliament or government and the demands and wishes of the entire electorate or a section of the electorate (see Schmidt 1995, 837). The concept is hence closely associated with the democracy principle (or to be more precise with the representation principle). But this does not mean that high responsiveness per se has to be beneficial for all institutions of democracy and its functioning.

  3. 3.

    “Freedom in this sense is not, at any rate logically, connected with democracy or self-government. Self-government may, on the whole, provide a better guarantee of the preservation of civil liberties than other régimes, and has been defended as such by libertarians. But there is no necessary connection between individual liberty and democratic rule. The answer to the question ‘Who governs me?’ is logically distinct from the question ‘How far does this government interfere with me?’ It is this difference that the great contrast between the two concepts of negative and positive liberty, in the end, consists” (Berlin 1969, 129f.). For Berlin, positive freedom, by contrast, means not to be the “instrument [...] of other men’s […] acts of will” (ibid, 131), and to this extent it is much more closely connected with democratic self-government.

  4. 4.

    In the words of the German Federal Constitutional Court in their ruling on the national census on the 15 December 1983: “Those who must be unsure if deviant behavior cannot be noticed at any time and persistently stored, used or passed on, will try not to expose themselves by such ways of behavior. Whoever expects that participation in an assembly or a pressure group will be registered by the authorities, causing him future risks, will possibly give up exercising the respective basic rights. This would not only impede the individual development of the personality but also the common good, because self-determination is an elementary precondition for the functioning of a democratic community based on its members’ ability to act and participate. It follows that the free development of the personality under the modern conditions of data processing requires the protection of the individual against unlimited collection, storing, use, and passing on of his personal data” (Decision of the German Federal Constitutional Court, BVerfGE 65,1, 43, transl.).

  5. 5.

    The systematic denial of civil rights and liberties to large sections of the Afro-American population of the USA until well into the 1960s, for example, reached this roughly defined threshold in both regards. By contrast, the anti-terror measures taken by the Bush administration after 9/11 quite possibly impaired the very substance of civil rights and liberties but caused no fundamental disturbance of the functional logic of American democracy. The contrary is perhaps true for present-day Hungary, where, although the constitutional and legal reforms carried out by the Orbán government do perhaps remain below the threshold, the totality of the measures taken considerably disrupt the functioning of the democratic partial regimes. Without a doubt, all the examples cited involve a loss of democratic quality. Whether they are also cases of “democratic crisis” must first be demonstrated by more precise analysis.

  6. 6.

    A fundamental break with the “open society” model could, for example, presumably not have been achieved in Norway, even after the terrorist act of the radical right-wing mass murderer Anders Breivik and even if the Norwegian government had sought to do so. But this naturally remains speculation and is mentioned here only to illustrate the basic plausibility of the argument.

  7. 7.

    Turkey and Greece are not among the best 30 OECD democracies, so they are not included in the version of the Democracy Barometer used here.

  8. 8.

    To download and for documentation: http://www.democracybarometer.org/

  9. 9.

    Not included were other variables on the protection of physical integrity (see Tanneberg in this volume), on property rights (which in the context of the issues we are discussing are not core civil liberties), as well as variables belonging to explanatory factors.

  10. 10.

    They are the variables on “freedom of information” and “informational openness” for the media, as well as “degree of federalism” to cover federalism. See Appendix 3 for an overview of variables.

  11. 11.

    In the case of coalition governments, the parties were weighted in terms of the number of seats held, so that smaller coalition partners were given less weight than larger government parties.

  12. 12.

    Linear regressions with panel-corrected standard errors were calculated.

  13. 13.

    They include the indicators “freemove,” “pubtrial,” “judindepcor,” “judindepinf,” “impcourts,” “profjudg,” “proftenure,” and “fairjust.”

  14. 14.

    The likelihood ratio test suggests that a model with squared year term is significantly superior to a model with a linear explanatory variable. A model that contains both terms (year and year2) and thus posits an initial rise and subsequent fall is, by contrast, not superior to the more parsimonious model with only the squared term.

  15. 15.

    According to the LR test, the random slope multilevel model used, which takes account of the nested data structure, provides a better fit for the data than a single-level model or a model without random slope effect coefficients. In addition, intra-class correlation of the null model shows that cross-country variance is much higher than variance within countries.

  16. 16.

    Confirmation is given by the significant correlation between intercept and slope.

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Correspondence to Aiko Wagner .

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Appendices

Appendix 1

Regression analyses (with panel-corrected standard errors) of the key variables; explanatory variable: year2 (1, 1990; 182 = 324, 2007)

Variable

Constitutional provisions banning torture (consttort)

Ratification of the UN torture convention (convtort)

Political terror (politterr)

The use of torture (torture)

Provisions for freedom of religion (constrel)

Year2

+0.0002

+0.0006**

−0.0007*

−0.0006**

0.0000

Constants

+0.24*

+0.81***

+0.92***

+0.86***

No. of cases

396

396

396

396

396

R 2

0.003

0.168

0.230

0.205

Variable

Provisions for freedom of movement (constfreemov)

Free practice of religion (freerelig)

Freedom of movement (freemove)

Fairness of the system of justice (constfair)

Public trial (pubtrial)

Year2

0.0000

+0.0012*

0.0000

0.0000

+0.0002

Constants

+0.92***

+0.95

+0.42***

No. of cases

396

396

396

396

396

R 2

0.118

0.427

0.061

Variable

Judiciary independence (judindepcor)

Noninterference by the government in judiciary (judindepinf)

Non-manipulation of the courts (impcourts)

Integrity and strength of the legal system (integrlegal)

Judges’ professionalism—degree and experience (profjudg)

Year2

−0.0001

−0.0003

−0.0004

−0.0005***

0.0000

Constants

+0.99***

+0.76***

+0.77***

+0.97***

No. of cases

396

396

396

396

396

R 2

0.059

0.403

0.445

0.377

Variable

Judges’ professionalism—term of office (proftenure)

Freedom of assembly (constfras)

Freedom of association (constass)

Freedom of speech (constspeech)

Freedom of press (constpress)

Year2

0.0000

+0.0001

+0.0001

+0.0001

+0.0001

Constants

+0.446***

+0.38***

+0.42***

+0.40***

No. of cases

396

396

396

396

396

R 2

0.261

0.096

0.238

0.201

Variable

Confidence in the legal system (confjust)

Fairness of transposition of laws (fairjust)

Year2

−0.0001

−0.0001

Constants

+0.53***

+0.70***

No. of cases

  

R 2

0.390

0.381

  1. Note: *p < 0.05; **p < 0.01; ***p < 0.001; original variable names in brackets

Appendix 2

Regression analyses (OLS, countries) pro country, dependent variable, civil liberties; explanatory variable, year2 [1 (1990) to 324 (2007; = 182)]

Variable

Australia

Austria

Belgium

Canada

Denmark

Year2

−0.003***

−0.005***

−0.007***

−0.004***

0.000

Constants

+0.544***

+0.324**

+0.796***

+0.923***

+0.767***

No. of cases

18

18

18

18

18

R 2

0.575

0.680

0.864

0.697

−0.057

Variable

Finland

France

Germany

Island

Ireland

Year2

0.000

−0.008***

−0.005**

−0.001***

−0.003**

Constants

+0.799***

−0.194

+0.039

+0.946***

+0.842***

No. of cases

18

18

18

18

18

R 2

−0.060

0.507

0.283

0.552

0.234

Variable

Italy

Japan

Luxembourg

Netherlands

New Zealand

Year2

−0.002

−0.004**

−0.000

−0.001*

−0.003***

Constants

−1.406***

+0.099

+0.846***

+0.871***

+1.017***

No. of cases

18

18

18

18

18

R 2

−0.014

0.222

0.001

0.125

0.763

Variable

Norway

Portugal

Spain

Sweden

Switzerland

Year2

+0.000

−0.007***

−0.008***

−0.001***

−0.007***

Constants

+0.591***

+0.344**

−0.650**

+0.888***

+0.559**

No. of cases

18

18

18

18

18

R 2

−0.041

0.791

−0.596

0.410

0.541

Variable

Great Britain

USA

Year2

−0.006***

−0.010***

Constants

+0.304*

+0.594***

No. of cases

18

18

R 2

0.668

0.818

  1. Note: *p < 0.1; **p < 0.05; ***p < 0.01

Appendix 3

Overview of variables

Variables

Contents

confjust

Confidence in the legal system: share of survey respondents indicating high confidence/trust

constass

This variable documents the existence of constitutional provisions protecting the freedom of assembly

constfair

Constitutional provisions for fair organization of court system (no exceptional courts and hierarchical judicial system)

constfras

This variable documents the existence of constitutional provisions regarding freedom of association

constfreemov

... measures, weather constitutional provisions guaranteeing freedom of movement exist

constpress

This variable documents the existence of constitutional provisions concerning the freedom of the press

constrel

Existence of constitutional provisions protecting religious freedom

constspeech

This variable documents the existence of constitutional provisions concerning freedom of speech

consttort

Existence of constitutional provisions banning torture or inhumane treatment

convtort

Ratification of the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment

efffoi

Effectiveness of Freedom of Information (FOI) laws. FOI is seen as effective if the following conditions are fulfilled: (A) FOI does not only cover the executive and administration (0.5) but also further public authorities (1); (B) official documents are accessible (except for common exemptions such as matters of national security or documents that contain personal information, etc.) (1) but not considerable number of exemptions and/or delay for Cabinet documents (0.5); (C) compliance with FOI is supervised by an independent commission (1) or at least a court review

fairjust

Assessment of the confidence in the fair administration of justice in the society. Measured on a scale ranging from “There is no confidence in the fair administration of justice in the society” (1) to “There is full confidence in the fair administration of justice in the society”

federgeta

Additive variable with two components: federalism and non-bicameralism

freemove

… indicates the extent to which governments restrict the freedom of citizens to travel within or leave their own country of birth or the movement of certain groups based on political or religious grounds. It also captures the extent to which there are restrictions on the duration of stay abroad, whether citizens lose their property and other assets if they leave for a very long time, ...

freerelig

... indicates the extent to which the freedom of citizens to exercise and practice their religious beliefs is subject to actual government restrictions. Does the government respect rights including the freedom to publish religious documents in foreign languages? Does religious belief affect membership in a ruling party or a career in government?

impcourts

Global competitiveness report’s question: “The legal framework in your country for private businesses to settle disputes and challenge the legality of government actions and/or regulations is inefficient and subject to manipulation (= 1) or is efficient and follows a clear, neutral process (= 7)”

integrlegal

This component is based on the International country risk guide’s political risk component I for law and order: “The ‘law’ subcomponent assesses the strength and impartiality of the legal system.” Measured on a scale ranging from 1 to 10

judindepcor

Documents the level of independence in the judiciary, as reported by the annual human rights reports of the department of state

judindepinf

The judiciary in your country is independent and not subject to interference by the government and/or parties to the dispute. Measured on a scale ranging from “strongly disagree” to “strongly agree”

judrev

The extent to which judges (either Supreme court or constitutional court) have the power to review the constitutionality of laws in a given country

legmedia

Legal environment (reversed). “The legal environment category encompasses an examination of both the laws and regulations that could influence media content and the government’s inclination to use these laws and legal institutions to restrict the media’s ability to operate ...”

politterr

Political terror scale (reversed). The dataset actually provides two scales, one derived from the Amnesty international yearbooks and the other from US State department reports. The two scales were combined here by mutually complementing missing scores

polmedia

Political environment (reversed). “Under the political environment category, we evaluate the degree of political control over the content of news media …”

powjudi

Power of judiciary. Effective possibility to control political decisions

profjudg

Professionalism (law degree, professional experience) is a precondition for appointment of judges to highest courts

proftenure

Professionalism of judges concerning length of tenure. Professionalism is high, if tenure is not restricted, i.e., if it is lifelong

pubtrial

Existence of constitutional provisions guaranteeing a public trial

restricfoi

Restriction of freedom of information/barriers for access to official information

torture

Torture and other cruel, inhumane, or degrading treatment or punishment

  1. Source: Democracy barometer documentation

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Wagner, A., Kneip, S. (2018). Democratic Danger for Democracy? The Precarious Balance Between Security and Freedom. In: Merkel, W., Kneip, S. (eds) Democracy and Crisis. Springer, Cham. https://doi.org/10.1007/978-3-319-72559-8_12

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