Über die Autorinnen und Autoren

Michael Ignatieff is Carr Professor and Director of the Carr Center for Human Rights Policy at The Kennedy School of Government, Harvard University.

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

The Lesser Evil

Edinburgh University Press

Chapter One

DEMOCRACY AND THE LESSER EVIL

On the appointed day the unarmed crowd of the Gothic youth was carefully collected in the square or forum; the streets and avenues were occupied by the Roman troops, and the roofs of the houses were covered with archers and slingers. At the same hour, in all the cities of the East, the signal was given of indiscriminate slaughter; and the provinces of Asia were delivered, by the cruel prudence of Julius, from a domestic enemy, who in a few months might have carried fire and sword from the Hellespont to the Euphrates. The urgent consideration of the public safety may undoubtedly authorize the violation of every positive law. How far that or any other consideration may operate to dissolve the natural obligations of humanity and justice is a doctrine of which I still desire to remain ignorant.
- Edward Gibbon, The Decline and Fall of the Roman Empire (1776), 2.36

I

What lesser evils may a society commit when it believes it faces the greater evil of its own destruction? This is one of the oldest questions in politics and one of the hardest to answer. The old Roman adage-the safety of the people is the first law-set few limits to the claims of security over liberty. In the name of the people's safety, the Roman republic was prepared to sacrifice all other laws. For what laws would survive if Rome itself perished? The suspension of civil liberties, the detention of aliens, the secret assassination of enemies: all this might be allowed, as a last resort, if the life of the state were in danger. But if law must sometimes compromise with necessity, must ethics surrender too? Is there no moral limit to what a republic can do when its existence is threatened? As Edward Gibbon retold the story of how the Romans slaughtered defenseless aliens in their eastern cities in 395 C.E. as a preemptive warning to the barbarians massing at the gates of their empire, he declined to consider whether actions that political necessity might require could still remain anathema to moral principle. But the question must not only be asked. It must be answered.

If the society attacked on September 11, 2001, had been a tyranny, these ancient questions might not be relevant. For a tyranny will allow itself anything. But the nation attacked on that bright morning was a liberal democracy, a constitutional order that sets limits to any government's use of force. Democratic constitutions do allow some suspension of rights in states of emergency. Thus rights are not always trumps. But neither is necessity. Even in times of real danger, political authorities have to prove the case that abridgments of rights are justified. Justifying them requires a government to submit them to the test of adversarial review by the legislature, the courts, and a free media. A government seeking to respond to an attack or an expected danger is required to present the case for extraordinary measures to a legislature, to argue for them with reasons that might convince a reasonable person, and to alter the measures in the face of criticism. Even after extraordinary measures receive legislative approval, they will still come under review by the courts.

The first challenge that a terrorist emergency poses to democracy is to this system of adversarial justification. The machinery of legislative deliberation and judicial review grinds slowly. Emergencies demand rapid action. Hence they require the exercise of prerogative. Presidents and prime ministers have to take action first and submit to questions later. But too much prerogative can be bad for democracy itself.

In emergencies, we have no alternative but to trust our leaders to act quickly, when our lives may be in danger, but it would be wrong to trust them to decide the larger question of how to balance liberty and security over the long term. For these larger questions, we ought to trust to democratic deliberation through our institutions. Adversarial justification is an institutional response, developed over centuries, to the inherent difficulty of making appropriate public judgments about just these types of conflicts of values.¹ Citizens are bound to disagree about how far the government is entitled to go in any given emergency. Because we disagree deeply about these matters, democracy's institutions provide a resolution, through a system of checks and balances, to ensure that no government's answer has the power to lead us either straight to anarchy or to tyranny.

In a terrorist emergency, we disagree, first of all, about the facts: chiefly, what type and degree of risk the threat of terrorism actually presents. It would make life easy if these facts were clear, but they rarely are. Public safety requires extrapolations about future threats on the basis of disputable facts about present ones. Worse, the facts are never presented to the public simply as neutral propositions available for dispassionate review. They come to us packaged with evaluation. They are usually stretched to justify whatever case for action is being made. Those who want coercive measures construe the risk to be great; those who oppose them usually minimize the threat. The disagreements don't end there. Even when we agree about the facts, we may still disagree whether the risks justify abridgments of liberty.

These disagreements extend to the very meaning of democracy itself. For most Americans, democracy simply means what Abraham Lincoln said it was: government of the people, by the people, for the people. In this account, democracy is a synonym for majority rule. Popular sovereignty, through elected representatives, has to be the final arbiter of what the government can be allowed to get away with when it is trying to defend our freedoms and our lives. Democracies do have bills of rights but these exist to serve vital majority interests. When the executive branch of government suspends rights, for example, it does so in the interest of the majority of citizens. The public interests that these rights defend are defined by the elected representatives of the people, and courts must interpret what these rights mean in obedience to what legislatures and the people say the rights mean.² Defending a right of an individual, for example, to freedom of association in times of safety protects the liberty of all. But protecting that same individual in a time of emergency may do harm to all. A terrorist emergency is precisely a case where allowing individual liberty-to plan, to plot, to evade detection-may threaten a vital majority interest. A democracy has no more important purpose than the protection of its members, and rights exist to safeguard that purpose. Civil liberty, the chief justice of the U.S. Supreme Court has written, means the liberty of a citizen, not the abstract liberty of an individual in a state of nature.³ Such freedom, therefore, must depend on the survival of government and must be subordinate to its preservation.

What prevents such a system from falling prey to the tyranny of the majority is the system of checks and balances and, more broadly, the democratic process of adversarial justification itself. While injustice can always be justified if you have to justify it only to yourself, it is less easy when you have to justify it to other democratic institutions, like courts and legislatures or a free press....