Research Paper Number
Australia; Canada; emergency; executive; governmentality; human rights; judiciary; Michel Foucault; National Security; precaution; risk society; UK; Ulrich Beck; war on terrorism
After the terrorist attacks of 11 September 2001 terrorism was added to the list of potentially catastrophic global events, such as global warming or nuclear explosions, which characterise Ulrich Beck's risk society. Operating in an atmosphere of fear, executive governments and parliaments around the world take precautionary measures to prevent future terrorist acts - governments accumulate information, detain terrorism suspects, freeze funds and so on. International Relations scholars see the judiciary as a guardian of human rights that can stop or at least curb the excesses of the other two branches of government. The article argues that this view is naive. The first section includes a brief historical overview of the judiciary's tendency to go to war together with the executive in times of crisis, a tendency which goes back to the 19th century and well precedes risk society. To put the same idea in Foucauldian terms the judiciary governs itself through the prevailing regime of truth, whether the emergency is the war on terrorism or a different war. In the second section, the focus is on six sets of recent cases, two from Australia, Canada and the UK each. In almost all the cases the judiciary shows a willingness to defer to the executive on questions of national security. Based on the limited number of cases analysed, it is argued that in some respects the regime of truth of the war on terror is nothing new, while in other ways the reasoning of the judiciary post 9/11 has certain distinctive characteristics.
Gelev, Filip, ""Risk Society" and the Precautionary Approach in Recent Australian, Canadian and UK Judicial Decision Making" (2009). Comparative Research in Law & Political Economy. Research Paper No. 5/2009.