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Law & Security Reading
Summaries + Lecture Notes -
Week 1-6
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Lecture notes
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Law & Security Reading Summaries + Lecture Notes - Week 1-6 1
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Law & Security Reading
Summaries + Lecture Notes -
Week 1/6
Week 1
Bedner, A. (2010). An Elementary Approach
to the Rule of Law. Hague Journal on the
Law & Security Reading Summaries + Lecture Notes - Week 1/6 1
, Rule of Law, 2, 48–74.
Introduction
The rule of law concept is not so easy to define.
Rule of law definitions seem bound to vary over time, place, context, and from
author to author.
Some of this contestation about the rule of law can be resolved by taking into account
the national context in which the concept is used.
However, even within a single (national) context rule of law is contested.
Two Functions of the Rule of Law
There is indeed considerable disagreement about rule of law definitions, but virtually
everyone agrees on the two main functions the rule of law serves:
1. Protect citizens against the power of the state.
2. Protect citizens’ property and lives from infringements or assaults by fellow
citizens.
It is important to see that these functions tend to conflict.
States often feel that, in order to protect citizens from one another, they need more
of
unfettered power than is actually good for them.
Competing Definitions
The distinctions between definitions of the rule of law basically reflect views on the
desirability or the necessity to have particular ‘instruments’ in place to promote
the twin functions discussed above, i.e., protecting citizens against the state and
protecting one citizen from the other.
Such choices are inspired by views on which instruments are best suited to
attain an optimum balance between limitations on state power and protecting
Law & Security Reading Summaries + Lecture Notes - Week 1/6 2
, citizens’ property and lives.
This raises a number of questions which are at the heart of the ‘essential contests’
about rule of law definitions:
1. Which instruments potentially offer the best guarantees to protect citizens
against the state and fellow citizens, and which connections exist between them.
2. Which of the two functions the rule of law is supposed to serve should be
prioritised if they come into conflict.
Is it possible to protect citizens against terrorist attacks without reducing their
right to privacy?
An important reason to pay attention to this issue is that many donor agencies
promoting rule of law development pretend to promote something that is ‘beyond
politics’. Their version of the rule of law is presented as a ‘universal good’, while much
of it actually is not.
This serves their ends better than to admit that various rule of law instruments may
actually compete.
Some authoritarian regimes take this matter even further, stretching the definition of rule
of law so far that one wonders whether anything is left of it.
It is politically advantageous to claim that you stay within the boundaries of
the rule of law, if only a ‘different kind’ of rule of law.
So, in contrast to the degree of unanimity on rule of law functions, the common ground
of definitions is rather thin.
Dissecting Rule of Law Definitions
To solve the problem of definitions, instead of talking about ‘the rule of law’ as a
monomorphous concept for analytical purposes we should dissect it into elements.
Law & Security Reading Summaries + Lecture Notes - Week 1/6 3
, There have been two approaches to achieve a more systematic classification:
1. The first has been to make the now familiar distinction between formal and
substantive versions of the rule of law – formal versions going back to the Greek
tradition and substantive to the Lockean fundamental rights approach.
Formal versions are concerned with law as an instrument and a basis of
government, but are silent on what the law should regulate.
Substantive versions, on the other hand, set standards to the contents of a
norm, which should be morally justified.
2. The second approach to classification builds on the insight that rule of law
definitions range from restricted (thin) to elaborate (thick) and that there is
some sequence in this.
Thisessay further refines their models by paying separate attention to controlling
mechanisms and by presenting them in a more clear-cut form that can be readily
applied. This ‘elementary rule of law model’ thus builds on the ‘formal-substantive’
distinction and the ‘thin-thick’ continuum.
Three categories that make up the rule of law conceptual framework are:
1. Procedural elements:
a. Rule by law
States rule by law, giving them legitimacy in their mode of governing. To
avoid ‘ruling by exception’ laws should in principle be general in its content
and should be known.
b. State actions are subject to law
It requires a legal basis for every government act, the so-called principle of
legality and it demands that the government obey its own rules.
One of the legality concerns so-called ‘open concepts’ in the law, such
as ‘the public interest’, the ‘common good’ and others, which can be
filled in by the government according to its own wishes and
preferences.
c. Formal legality
Law & Security Reading Summaries + Lecture Notes - Week 1/6 4
, Law must be clear and certain in its content, accessible and predictable for
the subject, and general in its application. This enables citizens to plan their
behaviour, as they can predict how the state will respond.
d. Democracy
Democracy serves the function of protecting citizens against the state. At
the same time, an argument can be made that the opportunity democracy
offers citizens to pursue their goals by electoral means is likely to reduce
infringement on their fellow citizens’ rights and property.
Consent determines or influences the content of the law and legal actions.
2. Substantive elements
a. Subordination of all law and its interpretations to fundamental principles
of justice
It is not always easy to define what are to be regarded as fundamental
principles in a given social field – certainly not when it concerns a state that
is culturally diverse. The most ‘relative’ of such elements consists of
principles of justice, morality, fairness and due process. These vary from
one place to the other and over time and thus allow for a contextual
interpretation.
b. Protection of individual rights and liberties
It has become clear that in order to achieve any improvement in the
realisation of human rights – whether it concerns the right to press freedom
or to food – one needs an effective legal system to achieve this.
c. Furtherance of social human rights
These rights create the much further reaching obligation for the state to use
its power for the benefit of its citizens, giving them a right to food, shelter,
education, etc. Other parts of the rule of law can only function effectively if
social rights are fulfilled and therefore a rule of law definition without makes
little sense for the poor and disadvantaged.
d. Protection of group rights.
Such rights can be a powerful weapon against the state’s encroachment on
citizens’ rights or of other citizens, most likely in the form of large
Law & Security Reading Summaries + Lecture Notes - Week 1/6 5
, companies, doing the same. The gross injustices committed in this way
against indigenous or other groups provide compelling reasons to look at
group rights in the attempt to realise the functions pursued by the rule of
law.
3. Controlling mechanisms (guardian institutions)
a. An independent judiciary (sometimes broadened to trias politica)
The judiciary is an actor, whose task it is to guarantee that the government
and citizens obey the limitations set to their exercise of power. It therefore
makes sense to coin a separate ‘actor’ category consisting of controlling
mechanisms.
Independence is the means through which impartiality should be achieved.
If they are to be effective, judiciaries must not only be independent but also
accessible, their second quality required by this element.
b. Other institutions charged with safeguarding elements of the rule of law.
‘Guardian institutions’ are charged with safeguarding particular aspects of
the rule of law.
The reason to include them in rule of law definitions is that in many cases
the judiciary alone is not sufficient to protect citizens, which is a logical
result of the rise of the welfare state.
Another particular feature of these institutions is that they are very much the
outcome of international or transnational processes.
Concluding Remarks
This essay has attempted to ‘dissect’ the rule of law concept into elements, using
the distinctions between ‘thin’ and ‘thick’ and between ‘formal’ and ‘substantive’ as
points of departure.
Rule of law elements can be evaluated in their context and discarding an element in a
certain context does not necessarily lead to refuting the entire rule of law concept.
Law & Security Reading Summaries + Lecture Notes - Week 1/6 6
, Zedner, L. (2003). The concept of security:
an agenda for comparative analysis. Legal
studies, 23(1), 153-176.
Introduction
Concern about the everyday security of citizens is hardly new, but the ending of the
Cold War licensed a new level of political and economic investment in this
principally domestic question.
Events like 9/11 substantially erodes the distinction between external and internal
threat, introduce a major new source of anxiety (if not of risk) to our collective
imagination and create new spheres of activity for security services whose role in
the post-Cold War era was arguably unclear.
Demand for security can be transformed beyond recognition by single
events such as terrorist attack or, indeed, the activities of lone gunmen. Single
events regularly have an impact disproportionate to their scale or the damage
they cause.
Aside from single triggers such as these, profound changes can be brought about by
political feat, policy decisions and media inspired 'moral panic'. Selfevidently,
therefore, security takes on different connotations at different historical moments.
Likewise, large differences arise from one country to another and cry out for
comparative analysis.
Linguistic, political, social and economic distinctions combine to generate very
different sources of insecurity and equally various responses to them.
The pursuit of security as a matter of everyday domestic policy stands high on the
political agenda and is a booming area of private investment in many (though not all)
Western nations.
Law & Security Reading Summaries + Lecture Notes - Week 1/6 7
, The different meanings, variable salience and models of distribution of
security will be the subject of this paper.
The concept of security is inherently complex, diverse and configured above all
by the material practices through which it is pursued.
The semantics of security
Security is both a state of being and a means to that end.
As a state of being, security suggests two quite distinct objective and subjective
conditions:
As an objective condition, it takes a number of possible forms:
1. It is the condition of being without threat: the hypothetical state of absolute
security.
2. It is defined by the neutralisation of threats: the state of 'being protected from'.
3. It is a form of avoidance or non-exposure to danger.
The latter two, more commonly employed, meanings predicate security on
the presence of that which threatens it. The presumption of continuing
threat is therefore an important factor in keeping crime high on a political
agenda that has invested so much capital in its control.
As a subjective condition, security again suggests both the positive condition of
feeling safe, and freedom from anxiety or apprehension defined negatively by
reference to insecurity.
Neither of these subjective conditions makes any reference to the objective
reality to which the feeling may or may not pertain: they describe feelings alone.
This renders security open to a particularly powerful form of political
exploitation.
The mismatch between risk and subjective security arises not only in the
amount of risk perceived, but also in identification of what is at risk.
Law & Security Reading Summaries + Lecture Notes - Week 1/6 8
, Individual, community or state perceptions of what is vulnerable may be of
no value or interest to the criminal. This 'security gap' arises in part out of a
mismatch of interests and in part because individuals and institutions tend
to focus upon that over which they
think they have control.
If security describes a state of being, it is used no less commonly to refer to the means
to that end.
Although the purported ends to be attained are again either objective freedom from
risk (protection, guard or defence) or the subjective feeling of safety (or absence of
fear or apprehension), the pursuit of security may be something like an end in
itself.
In part emphasis on pursuit of security is licensed by the difficulty of identifying
whether or not the end has been achieved or not. Even if security were today
obtainable (which arguably it is not), the potentiality for new threats means that
the pursuit can never be said to be over.
Aditionally, emphasis on pursuit arises because it is not in the interests of those
who provide, offer or sell security for that state ever to be achieved.
In particular, the burgeoning private security industry purports to sell something
it has no interest in providing absolutely. For the industry to continue to thrive, it
must never attain its fictitious end goal.
It should be clear that the concept of security defies simple definition.
This imprecision not only means that many divergent measures can be justified in
the name of security, it also gives licence to exceptional measures that might
otherwise appear indefensible.
Different constructions of security
Given the wealth of possible meanings contained within this clearly capacious concept,
the ways in which security has been constructed by those studying, as well as by those
selling, has important implications.
Law & Security Reading Summaries + Lecture Notes - Week 1/6 9
