An array of commentators has reacted to the Australian government’s proposed anti-terrorism laws by branding them an unprecedented and unjustifiable infringement of civil rights and liberties. According to the president of the Law Council of Australia, John North: ‘The major concern is that when a government gives power to police to stop, arrest, question and detain for long periods people not reasonably suspected of a crime we have crossed into uncharted territory. Nothing can justify giving up such fundamental rights’. Writing in the Australian Financial Review (3 October), Geoffrey Barker agrees, viewing the measures as a betrayal of liberal democratic institutions and traditions: ‘But now we may be entering the twilight of liberal democracy as the spectre of the national security state looms larger and closer’.

These would be important and disturbing statements were they to be true. But they are not. The constitutions of many Western liberal states contain emergency powers provisions permitting the curtailment of normal legal rights under conditions of threat to public security or the stability of the state. When the Quebec Liberation Front kidnapped and assassinated a cabinet minister in 1970, for example, the Canadian government under Pierre Trudeau invoked the state’s War Measures act. This permitted the government to suspend the Bill of Rights, increase police powers, and deploy its armed forces in order to crush the secessionist group. Where such constitutional provisions are not available, then states will enact requisite self-defence laws, typically with sunset clauses designed to kick-in once normal conditions have been restored.

Other commentators have not been so absolute in their criticisms of the government’s proposed laws. Rather than treating them as unprecedented and unjustifiable, these commentators argue that restricting certain rights in order to protect public security is indeed justifiable, but only if the relevant measures remain proportionate. Here the talk is typically in terms of the need to maintain a balance between security and individual rights, and to hold the government accountable for any restrictive measures. What kind of agency, though, is capable of sitting in judgment on this balance and holding a sovereign government to account? The only possible candidate would appear to be human rights law, at least as far as juristic commentators are concerned. Ben Saul’s formulation can stand for many: ‘At the same time, human rights law does ensure that governments are held to account for restrictions they place on rights, so that they do not abuse their power under the guise of protecting security. It provides a principled framework for evaluating terrorism laws, ensuring they are strictly necessary and proportionate to the threat’.

This is an important viewpoint and should not be treated lightly, especially given the real danger of democratic parties in government abusing security powers for electoral advantage. Nonetheless, it begs several key questions and leaves others unanswered. First, is it the case that the physical security of citizens is one ‘social value’ among others, including especially individual rights and freedoms, against which it must be balanced on a single scale? Or does the state’s protection of citizens from physical harm have a primacy that sets it apart from these other political goals, desirable as they are?

Secondly, who is to decide whether a given set of security measures are proportionate to a possible threat? Saul indicates that this will be decided by ‘human rights laws’. Elsewhere in his commentary appeals to the example of the UK where domestic courts can hold the government to account on this score because the UK has enacted elements of the European Convention on Human Rights (ECHR) as domestic law (in the Human Rights Act of 1998). But are domestic constitutional courts capable of determining who is the enemy and what kind of threat is being posed? When, six months prior to the London underground bombings, the UK Law Lords struck down laws for the preventive detention and deportation of foreign terrorist suspects, they attempted no concrete assessment of proportionality in relation to threat. Instead, the majority argued for disproportionality on the legal ground that the laws were inconsistent in not applying to UK citizens. Only Lord Hoffmann argued that the government could not invoke the opt-out clause of the Human Rights Act - allowing the state to suspend provisions of the ECHR under conditions of public emergency - because, in his view, no such emergency existed.

But Lord Hoffmann’s position, which continues to receive widespread support from human rights jurists and liberal journalists, prompts a third question: What is the source of the obligating power of international human rights laws and covenants? Domestic laws derive their obligating power from two conjoint sources: their coercive enforcement by a territorial sovereign or state, and the citizens’ consent to this coercion in exchange for security. Given that human rights laws purport to obligate the state itself, however, in the name of what higher power (political or moral) might they do this? This question cannot be answered by appealing to the ‘rule of law’, as it concerns the scope and power of law in relation to acts of a territorial sovereign who may also be the supreme legislator. The issue here is not the rule of law but the exercise of sovereignty. Carl Schmitt’s memorable aphorism has it that ‘Sovereign is he who decides on the exception’. In other words, we discover who is sovereign when we see who determines that exceptional or emergency conditions obtain (or not), thereby authorising the state’s exercise of extraordinary self-defence powers. Were Lord Hoffmann’s position to have formed the basis of the Law Lord’s decision, would we have been witnessing a fracturing of UK sovereignty?

Some jurists, human rights advocates and civil libertarians view the anti-terrorism measures as anomalous or paradoxical, suggesting that they amount to destroying civil rights in order save them. This is the view reflected in the claim that the government’s anti-terrorism laws mean that the terrorists have already won, by stampeding us into destroying our own way of life. Again, these would be chilling statements were they to be true. But the historical facts are otherwise. Emergency powers provisions and self-defence enactments are in fact pointers to a quite different historical reality: namely, that the prime directive of liberal states has always been the physical security of their citizens, with legal rights and freedoms then emerging within the security envelope provided by the state. In contradistinction to the status claimed for natural and human rights, positive legal rights and entitlements are not the moral foundation of the state. Rather, they are instruments that have evolved as a means of ordering and enhancing the lives lived within the protective cordon of the state’s coercive powers. They can thus be curtailed when the state is forced to assume a defensive posture without undermining the fundamental norms of the liberal state. But to see this we need to take an historical detour.

Before all else, it is necessary to discard the historical myth that liberal rights and freedoms - habeas corpus, religious freedom, freedom of movement, freedom of speech - were the creation of late-eighteenth-century democratic struggles against absolutist states, carried out in the name of natural or human rights. The first thing to observe is that these rights and freedoms emerged much earlier, from a wide variety of pre-democratic conflicts and settlements, in relation to which natural rights doctrines were only one ideological banner among many. Taking the case of religious freedom, we can say that it began to emerge in particular states during the seventeenth century, in the context of the problem of religious civil war, and as a result of concrete settlements reached between various protagonists. Brandenburg-Prussia accepted toleration of the three main religions - Lutheranism, Calvinism and Catholicism - when it signed the Treaty of Westphalia in 1648. This, however, was also a de facto acknowledgement that a century of attempts by the ruling dynasty to impose its own religion, Calvinism, had failed, due to the stubborn resistance of the territory’s Lutheran ‘estates’, in particular the nobility and the clergy.

This resistance had in part been carried out through the courts and parliaments of the Holy Roman German Empire, which the estates could use to defend their rights against aspiring territorial sovereign states like Brandenburg-Prussia. The settlement that provided freedom for the three official religions - and that was later reinterpreted as ‘freedom of conscience’ - was not the product of democratic resistance to absolutism but of an accommodation between a territorial state and its estates. (This was not always a cause for rejoicing among the people. When the estates of Mecklenburg finally defeated their would-be territorial prince, they immediately implemented serfdom for the peasantry). Similarly, the Anglican Settlement of the 1690s represented an accommodation between royalists intent on implementing an Anglican confessional state and dissenting noble and clerical estates, giving rise to limited toleration for dissenters and Catholics within and Anglican hegemony. Liberal constitutionalism was thus born from concrete political compromises to which it remained subject.

The second thing to observe is that security emerged as the objective of the sovereign territorial state as the result of a particular intellectual-historical development: namely, the secularisation of the goals of politics. The first sovereign territorial states were confessional states, attempting to impose a dominant religion within their borders - Catholicism in France and Bavaria, Anglicanism in England, Lutheranism in Saxony and Sweden - and it was widely accepted that the state should care for the morality and salvation of its citizens as well as their physical well-being. Until the middle of the seventeenth century natural law and natural rights doctrines were ideological defences of the confessional state, as they argued that natural law (typically the Ten Commandments) was the conduit that channeled divine law into the positive law of earthly states. The whole point of the secularising reconstruction of natural law carried out by Grotius, Hobbes and Pufendorf was to break this connection between natural and divine law, by making social peace into the purpose of natural law and physical security into the prime goal of politics. In the case of Hobbes and Pufendorf this secularisation of law and politics was also associated with absolutism, as it was designed to exclude the estates - particularly the clergy - from participation in political power, by destroying the ideological basis of such participation. A secularised conception of politics organised around security was, however, eventually accepted in parliamentary ‘estate states’ too. Here, though, it was often caught up in ideological battles with estate conceptions of natural or ‘human’ rights, where the latter are held to trump physical security as values championed by privileged estates such as the judiciary or clergy. These battles are ongoing.

Once placed in this historical setting, the action of the Law Lords in striking down provisions of the UK government’s anti-terrorism laws start to assume its proper historical shape. This act is not a democratic defence of natural or human rights but an estate defence of positive rights indicative of a particular domestic constitutional settlement. To grasp this it must be observed that the House of Lords represents the estates of England rather than the ‘people’. It is the survivor of a long struggle between the estates and forces seeking singular and unified sovereignty. Its members are appointed rather than elected and consist of the archbishops and (some) bishops of the Anglican Church (the ‘Lords Spiritual’) and a mix of hereditary and government-appointed peers (the ‘Lords Temporal’), including the Law Lords selected for the juridical expertise. Lord Hoffmann and his fellow Law Lords are thus not the representatives of the people or the bearers of their ‘will’ - a dubious idea in any case. Rather, they are the appointed representatives of a special estate or social ‘corporation’, the judiciary, one of whose roles is to provide the government with advice on the appropriateness or constitutionality of government legislation.

In doing so, however, it is quite inappropriate for this estate to appeal to (‘human’) rights lying beyond the positive laws of the territorial state. This is in part because such rights only acquire domestic force when they have been converted into domestic laws (the 1998 Human Rights Act), at which point they become commands of the domestic sovereign, hence capable of being suspended at the sovereign’s discretion for the purposes of security. It is also because the Law Lords do not themselves exercise sovereignty, as can be seen from the fact that the government’s anti-terrorism laws remained in force even after they were ‘struck down’, and are only likely to be strengthened after the July bombings. Finally, it is because the Law Lords do not speak on behalf of human rights - as no non-divine agency can do this - but only on behalf of positive rights they champion as an estate in relation to the security imperative of the state.

We can suggest, then, that the liberal state and the security state are the Janus face of the same entity - the Western sovereign territorial state - although we will need to extrapolate a series of points in order to take the paradoxical edge off this proposition:

The Western state is secular. This does not mean that it is based on a secularist or atheist ideology that it is intent on imposing on society as a whole. Rather, in being restricted to the purpose of social peace, coercive state institutions - laws, judiciary, police, army - are not used to enforce transcendent (and incendiary) doctrines, adopting instead a position of neutrality towards competing religious and ideological truths. Only the political and juridical framework of society is thus secularised, not the religious and ideological associations that it contains, which are more free than ever to pursue rival absolute truths once the state is capable of preventing their mutual persecution. It is thus quite normal for secularised liberal states to draw on religious institutions in a range of governmental areas - education, hospitals, social welfare - to the extent that the proselytising imperatives of these institutions can be kept within the limits of pluralism and mutual toleration.

The security state is not totalitarian. Some commentators allow themselves to use the word ‘totalitarian’ when characterising the curtailment of rights in the government’s proposed anti-terrorism legislation. But this is both misguided and misleading. The whole point of making the population’s physical well-being into the prime directive of government was to free states from having to enforce divisive religious or ideological doctrines. Religious toleration required states to develop ideologically neutral judiciaries and bureaucracies - within the limits of the possible - and to keep these from party capture once states acquired democratic electoral systems. Conversely, total states like the Soviet Union and Nazi Germany arose from the capture of state institutions by an ideological party. The party state then attempts to use these institutions to enforce ideological truth across all areas of society - private and public - thereby transforming the security state into a modern version of the earlier confessional state.

The security state is the default setting of the liberal state. Liberal rights and freedoms emerged from two interrelated sources: First, they appeared in the spaces vacated by the confessional state when, in order to render its coercive powers supreme, it restricted them to the domain of physical security. Second, they resulted from the concrete accommodations arising from the struggles between would-be absolute sovereigns and estates defending their particular material and moral interests. These rights and liberties are thus not fundamental and inalienable, donated by God or inherent in conscience. They are historical entitlements to legal action, contingent on the state’s establishment of the envelope of security whose perimeters it polices. Under conditions of peace, the ‘sovereign’ state is scarcely visible, and this allows the old religiously-based natural law doctrines to resurface, with their argument that the state only exists to protect natural rights and freedoms inherent in humanity. This remains the argument of most human rights and civil liberties ideologists. As soon as the security envelope is threatened, however, whether internally (hate speech, incitement to insurrection, domestic terrorism, treason) or externally (foreign terrorism, invasion, subversion), then civil rights and liberties are retracted to the degree that it is necessary to protect the space in which they are unfolded. And then natural law and human rights arguments - old and new - lose plausibility. Like the Canadian War Measures act and the British government’s anti-terrorism laws, the Australian government’s proposed anti-terrorism laws are an example of the way in which the liberal state defaults to the security state when it is under threat.

The liberal-security state is subject only to laws of its own making. The emergence of states that were both territorial and sovereign led to a territorialisation of law and morality. Natural law had depended on the existence of a universal church and a universal empire in order to impose morality - in fact mix of religious and political ideologies - on subordinate territorial states. Once these territorial states became sovereign, then law was immediately identified with the commands of the territorial ruler, leading to the collapse of natural and international (ie, imperial) law, as there is no cosmopolitan sovereign. Human rights jurists sometimes point to international courts and treaties - especially the International Covenant on Civil and Political Rights - as evidence that individual rights and duties are cosmopolitan, transcending the territorial state and setting limits to its sovereignty. International treaties and covenants, however, do not really escape the centripetal jurisdiction and morality of territorial states, for two reasons. First, they depend upon super-states or condominiums for their existence and enforcement. The religious rights enshrined in the Treaty of Westphalia thus depended on the power of its super-state broker, France; but also on synchronising with domestic state religious policies, as in the case of Brandenburg-Prussia. Second, territorial states possess the authority to ‘derogate’ or suspend the provisions of international human rights covenants should these impair its overriding purpose of protecting the physical security of its own citizens. Where a state is prevented from exercising this authority - whether by an external hegemon or by domestic agencies or groupings - then its sovereignty is defective.

The liberal-security state is an ideological disappointment. Once the state dropped its higher goals - the defence of the faith, the salvation or moral perfection of its citizens, the protection of transcendent rights and freedoms - it began to lose its moral nobility, at least in the eyes of those groups or estates whose religious or ideological affiliations kept them committed to these ideals. Social peace and physical security are sometimes not enough to supply the state with adequate moral credentials. This is particularly so when long periods of peace and stability within a state lead to forgetfulness regarding the sheer fragility and misery of human existence that follows from the dissolution of the state’s power to protect. Under these conditions, groups that play an important role in maintaining the division of powers and keeping the state in its place as perimeter guard - dissenting academics, civil libertarians, human rights jurists - can be led to declare the moral bankruptcy of the state, by holding it to moral standards precluded by its manner of historical existence. These are the circumstances in which such measures as the government’s proposed anti-terrorism legislation can trigger a deep cultural fissure, running at a tangent to the usual Labor-Liberal, left-right divisions of party politics, as Paul Kelly has observed in the Australian (1 October 2005): ‘The divide is over the guiding principles of the liberal democratic state in an age of globalised terror. It is a divide over principle, morality and politics and it will become entrenched.’ Kelly characterises this as a ‘battle of philosophies best labeled as the national or majority interest versus the cause of individual rights’. We might also see this battle as symptomatic of what happens when the liberal state defaults to its security setting, provoking the deep ideological disappointment of those whose roles require them to imagine that the state is something higher than it can be.

The liberal-security state is imperfect. This is so in two ways. It is imperfect by birth, as to be born it had to renounce perfection, both its own and its citizens, making do instead with its capacity to enforce peace and their capacity to act peaceably. But it is also imperfect because it is nothing more than a bundle of institutions - legislature, executive government, legal system, bureaucracy, police and army - reliant on contingent funding, fallible (or worse) management, and prone to varying degrees of dissolution arising from a whole variety of sources: the greed and venality of those who staff its institutions; the impact of natural, economic or military disasters that overwhelm its resources; the rise of disaffected religious or ideological groups seeking its capture for their higher ends; and its use by political parties to buttress their own power, rather than exercising sovereignty for its proper purpose. Sometimes the liberal-security state wins our endorsement only because it appears to be the least worst option, as is perhaps the case today with military-led states like Pakistan or Algeria. At other times, though, when it does its job of maintaining the security envelope inside which its citizens can exercise their rights and entitlements - but only so far and for the time being - then we should support it, imperfections and all.