Introduction to New Book on Counter-Terrorist Judicial Review

For the past year my colleague at UNSW, Fergal Davis, and I have been working on a project funded by the British Academy & Leverhulme entitled Critical Debates on Counter-Terrorist Judicial Review. The project brought world-leading scholars to Durham for a major international workshop last June, and also funded a further small event in Sydney (at the NSW Bar Association) on November 20th. The product of the project is an edited collection to be published by CUP next year, the introduction to which (Davis & de Londras, “Counter-Terrorist Judicial Review: Beyond Dichotomies) you can now download for free here. The abstract for the introduction is:

Contemporary debates about terrorism and counter-terrorism have become dominated by dichotomous thinking, in which complicated questions can become reduced to simplistic analyses of terrorist v. freedom fighter, terrorism v. counter-terrorism, vengeance v. protection, fundamentalism v. necessity, security v. liberty. Such an approach, however, masks much of the ‘murkiness’ of the debates; a murkiness that must be grappled with because, in practice, it has contributed to some extent to the design, appropriation, implementation and exercise of extensive powers of counter-terrorism, often without even a legislative basis. The extent of counter-terrorism is of clear concern to lawyers, although how counter-terrorism might be controlled is something upon which many — including us — can disagree. Thus, there is an on-going debate across legal systems and continents, about mechanisms of such control and, in particular, about the role of courts in this respect. In this chapter, which is the introduction to Critical Debates on Counter-Terrorist Judicial Review (2014, CUP), we reflect on why this debate has generated so much attention and is of significance. In particular, we argue that the debate on the appropriateness and capacity of counter-terrorist judicial review has raged because of the fundamental values that counter-terrorism puts at stake: distortion of democratic debates and mechanisms, the functioning and content of deeply entrenched constitutionalist values of limited power, and people’s faith in the law and in its legitimacy. At its very heart, we argue, what is at stake when we debate whether and how counter-terrorism can be limited and especially the possible role of judicial review in such limiting exercises is a commitment to constitutionalism even in a situation of crisis.