Crossing Legal Boundaries in Defence of the State
Edited by Aniceto Masferrer and Clive Walker
Chapter 3: The fragility of fundamental rights in the origins of modern constitutionalism
The terrorist attacks on the 11th of September 2001, followed by those that took place in Madrid in 2004 and London in 2005, opened up a debate about the difficulty of maintaining a suitable balance between the need for security and the defence of human rights in the context of the fight against terrorism in democratic States. This debate has focused on the question of the degree to which democratic States are justified in restricting or even violating the fundamental rights and liberties of individuals in order to guarantee national security. The abuses committed in Guantánamo, the military interventions in Afghanistan and Iraq, and the promulgation, in a number of States, of legislation designed to establish a series of preventative measures and to punish acts of terror- ism, following the passing of Resolution 1373 by the United Nations Security Council, have all posed serious and complex questions to scholars in a range of disciplines, particularly those of Law, Philosophy and Political Science. More importantly, one may wonder whether reasonable boundaries may be set up here between individual rights and collective security, as well as internal boundaries within rights on a scale of fundamentalism. In principle (though perhaps only purely theoretically), there is a general consensus that human rights constitute a limit to State action, a boundary that States must not cross, however fine and laudable the ends they seek to pursue might be.
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