So used are we in the Western democracies to the nostrums of our political system and the cycles by which that system operates that the notion that liberal democracy is not a natural state of affairs is difficult to comprehend. Yet it is so. It was only in the last decade of the 20th century that democracy finally reached across Europe. Terrorism poses the greatest dilemma for believers in the rule of law since World War II.
Some argue that it is one thing to apply the rule of law to those who recognise such a concept, but when dealing with terrorists the gloves are off, that it is necessary to fight dirty opponents with the same techniques or with the same ruthlessness. For example, Ted Lapkin of the Australia/Israel and Jewish Affairs Council, writing in The Australian on 25 August 2004, contended:
‘In combat, there is no legal requirement to read the enemy his rights before shooting him from ambush or calling down an artillery barrage on his head. Thus, it is self-defeating folly to apply peacetime legal standards to a wartime environment where they are utterly irrelevant … It would be absurd to allow those who violate the laws of war to benefit from the protections of the international treaties that they themselves systematically flout.’
On the other hand, American legal scholars have often used the story of Ulysses and the Sirens as a metaphor for their Constitution’s role in keeping short-term political impulses from imperilling the nation’s long-term, historical commitment to a free society based on the rule of law. The United States Constitution prevents presidents and governments from following the siren song of authoritarianism, the very evil against which the American colonists revolted.
The first duty of all nation states is the protection of its citizens. If it cannot provide it, the very existence of the nation is endangered. This is self-evident.
One of the chief predicaments for governments in liberal democracies is striking the appropriate balance between national security and the maintenance of the civil liberties that characterise such societies. What is apposite will depend on circumstances but if a liberal democracy is to remain such, there must be a line beyond which its government will not follow the siren call of national security.
Few have expressed the value of the rule of law more eloquently than Robert Bolt in his famous play, A Man for All Seasons, when