Open society

The idea of an ‘open society’ is one that is strongly connected to the rule of law. ‘Open society’ specifically refers to liberal democracies that are tolerant and that adopt transparent and flexible political measures. Popper, writing in 1945, defined an open society as one in which political leaders can be overthrown without the need for bloodshed (Reference Popper1945/1995). Significantly, the distinction between an open and closed society rested with the recognition of the role of responsibility and accountability for personal choices. Popper was referring to clear violations of civil liberties and freedoms that occurred in a ‘closed society’, or totalitarian regime. At the heart of the legal system that was imposed on Communist states was fear. ‘Fear was the first principle buttressing Soviet-style control. A key to communist societies’ stability was the well-internalised fear of the party-state and its seemingly omnipresent security forces’ (Łoś Reference Łoś2002, p. 169).

In a closed society, liberty does not rank very high when compared to security. Laws are instrumental, far from static, and their arbitrary application ensures that society feels their reach in both public and private lives. Some features of the totalitarian regime support the use of terror for achieving the long-term goal of eliminating any political opposition to the state order. For the post-Communist world, the agreement that human rights should be protected unconditionally was accompanied by selected models of rule of law from more established democracies. Although later criticised for being naive, one could find little fault with the passion, enthusiasm and belief in that a judiciary which boasts ‘confidence in the men and women who administer the judicial system that is the true backbone of the rule of law’ could be created (Scheppele, Reference Scheppele2000).Footnote ³ It is not in the scope of this essay to examine the complexities of judicial systems in transition, suffice it to say that ‘Communist ideas, patterns of behaviour and institutions still pervade constitutional developments’ (Sajó, Reference Sajó1995, p. 253). Equally, Dyzenhaus also draws on similar experiences, namely the South African one, to demonstrate that judges in both open and closed societies have an obligation to the rule-of-law project. The judge in an open society should be sensitive to the project at all times, none more so than in times of political instability.

Fear also is, unfortunately, a dreadful feature of our open society. In an extreme form of insecurity, anxiety and vulnerability we feel impotent and helpless. Our helplessness hinders us from finding those solutions that ‘could allow our politics to be lifted to the level where power has already settled, so enabling us to recapture and repossess control over forces shaping our shared condition’ and defining the variety of choices and boundaries to our freedom (Baumann, Reference Baumann2006, p. 128). This is a particular concern for civil libertarians, who find that ‘[a] tranquil state rooted in fear is not a free society’ (Gearty, 2007, p. 119). Baumann notes:

In an attempt to address our fears we naturally turn to the state to maintain law and order. Accompanying the fear that affects liberal democracies is the challenge that states undertake new and unusual methods to discipline and punish. Following 9/11, the concern related to these unique measures increased, causing certain scholars to question political motives, and pondering whether ‘we currently allow practices that go against their original meaning’ (Kateb, Reference Kateb2006, p. 47). In a similar vein, Baumann observes that the ‘plight of ‘stranger’, cast and held in disturbingly underdefined ‘grey zone’ stretching between declared enemies and trusted friends, has been at all times ambivalence incarnate’ (Reference Baumann2006, p. 126).Footnote ⁴ However, it is equally important to note that for some scholars, such as Richardson, there are doubts concerning ‘a great evolutionary leap in September 2001, that the human race suddenly produced a new brand of evildoers’ (Reference Richardson2006, p. 13, my emphasis). Terrorism is not a new phenomenon; governments through time have had to create legal responses to violent movements within their borders. ‘We must always remember, however, that terrorists cannot derail our democracy by planting a bomb in our midst. Our democracy can be derailed only if we conclude that it is inadequate to protect us’ (p. 280).

The crux of the question rests with essence of the regime itself. The separation of powers and judicial review are two mechanisms to ensure government responsibility. These mechanisms have been critically analysed by scholars of public law, seeking an answer about the controlling national power. Tushnet (Reference tushnet2005), for example, rejects both mechanisms, while others in the area painstakingly analyse key case law to reveal judicial commitment to the constitutive elements of the legal authority, exploring the manner in which precedent allows judges to rise to challenges to the rule of law (Scheppele, Reference Scheppele2000; Scheuerman, Reference Scheuerman2006).

Dyzenhaus reveals a different problematic that is not isolated to the United Kingdom or the Commonwealth. It is the claim that since 9/11 we have moved into a state of permanent emergency and have abandoned or are slowly abandoning the rule of law. As noted above, tension between national security interests and protecting civil liberties can be identified in many states’ histories at different points in time. Ironically, our open society is experiencing a crisis with the very issues that comprise its beginnings. It is equally ironic that comparisons are drawn with the experiences that constitute the inception of the open society. Paradoxically, while we live in an open society, it is seemingly threatened by fear. And because the fear is not entirely tangible, it appears even more menacing and more demanding of a solution.

Those living in the most developed countries are living in the most secure societies which ever existed, yet at the same time we reveal obsessions about security-related issues, linked to anxiety and fear (Baumann, Reference Baumann2006, p. 101). Polls taken after the 9/11 and London terrorist attacks support this contention. ‘True to its name, the paramount weapon of terrorism is sowing terror’ (p. 107). It is asserted that we are dealing with a different kind of terrorism, one that is ‘new’ and has a ‘more ominous face […] in Europe’ (Baumann, Reference Baumann2006, p. 108; Cowell and Bonner, Reference Cowell and Bonner2007).Footnote ⁵ Counter-terrorist measures are ‘openly and blatantly desecularized version[s] of the totalitarian temptations that accompanied the whole of modern history, being tested with particular zeal and to most spectacular effect by the communist and fascist movements of the century that has just drawn to its close’ (Baumann, Reference Baumann2006, p. 115). As pointed out by Gross and Ni Aoláin, ‘[t]he rush to legislate means that it is not unusual that when emergency legislation is initially adopted, no meaningful debates over it take place’ (Reference Gross and Ni aoláin2007, p. 72). All of this seems to paint a gloomy picture indeed, especially when we consider Rosen’s observation that we are not very good at digesting complicated information, making us more impatient to make good decisions about complex issues (Reference Rosen2004, p. 15). This is particularly relevant when we are driven by a ‘psychology of fear’ (p. 14). Thus, in the current context, our rush to apprehend terrorists and prevent future terrorist attacks has meant that our respective governments have taken far-reaching steps that potentially violate fundamental rights and freedoms and call into question the balancing exercise between national security and the protection of civil liberties.

The future of the open society

In maintaining law and order, it is clear that the state may decide to introduce and impose extraordinary measures. For some, liberal democracies are always in a state of vulnerability to this inevitable development. Carl Schmitt, writing in the early twentieth century, reflected on events in Weimar Germany (1919–1933), and argued that traditional political and legal thought does not address the problem of exception, which is composed of an extreme danger to the existing political and legal order. Schmitt’s work comprises an important part of Dyzenhaus’s critique (and others working in the area) of legal spaces. For Schmitt, it is not clear what measures should be taken, but what is clear is that not every legal norm can foresee, let alone contain, what measure might be required. Schmitt found liberal-minded proponents of this form of government naive (Reference Schmitt and Schwab1922).

It is easy to forget that under the 1919 Weimar constitution constitutional rights were not entrenched. Discussions relating to constitutional rights occurred within a different context, led by positivists who stressed the idea of the ‘people’ rather than the individual (Fuzer, Reference Fuzer2004, p. 135). This meant that the:

In contrast, during this time, and in response to developments in Weimar Germany, Kelsen went further with his positivism, or the ‘pure theory of law’, where the freedom of the people, as part of the state, was most important of all. The application of any norms beyond legal and positive ones was out of the question. Not surprisingly, natural law interpretations were rejected. As Dyzenhaus notes, ‘the state is totally constituted by law’ (2007, p. 199), so when a political entity acts outside the law, its acts cannot be attributed to the state and they have no authority. Interestingly, Schmitt, when writing about constitutional rights, held two different positions in the course of developing his ideas. While he expanded on the political dimension of constitutions early on in his career, at the centre of his argument basic rights and liberties could be found. ‘Restriction of the individual’s freedom could only occur as an exception and even then it had to happen in an assessable manner’ (Fuzer, Reference Fuzer2004, p. 208). He would later change his stance to accommodate the new political situation.

Equally, it easy to overlook the fact that one of the most important developments in the twentieth century concerns international law and the role of the international community. Most constitutions have provisions on states of emergency that also protect civil liberties and require constant parliamentary review of related executive decisions (Scheppele, Reference Scheppele2004). This is not to deny that questions continue to plague the purported limitations of the rule of law and the reach of the law in controlling emergency powers. If we attempt to find solutions at the European level, we are disappointed. In most cases, the European Court of Human Rights has left the question of emergency provisions to the states under the margin of appreciation.Footnote ⁶

Scheppele convincingly argues that we need to note the historical and material circumstances that existed in Weimar Germany, which resulted in the failure of weak parliamentary democracies, not only in Germany, but throughout continental Europe – which do not exist in the present day. If we pursue this further and examine events during times of stability, we discover that ‘emergency powers are in fact more interesting, politically more revealing and more analytically challenging when considered in periods of “peace”, and the everyday functioning of civil society’ (Neocleous, Reference Neocleous2006, p. 95). Many examples can be found in UK and US experiences with emergency provisions during peacetime. This alternative critique introduces another perspective with which to view the legal spaces that have been identified by scholars working the area. Prior to 9/11 most terrorist offences were dealt with by US federal criminal law; this meant that terrorist suspects were handled by the institutions that formed part of the ordinary criminal justice system. In the United Kingdom, the treatment of IRA suspects has been long criticised along the lines of creating a separate criminal law framework to deal with the ‘suspect community’ (Hillyard, 1995). The recognition and critique of these developments warns against the temptation to discard or dismiss the ‘rule-of-law’ project.

Invisible constitution

As noted above, Dyzenhaus supports the view of a judge taking the role of a ‘weather forecaster’. He constructs a framework for this role after carefully examining cases from various common law jurisdictions to demonstrate that the law provides a moral foundation for it. He alleges inconsistency in adhering to a strict application of the separation of powers or a principle of legality that asks parliament to ‘confront what it is doing and accept the political cost’Footnote ⁷, saying that it reveals further divisions concerning the value of equality as it pertains to citizens and non-citizens. We see evidence of the truth of his allegation in Canadian and Australian approaches which divulge equally alarming developments.Footnote ⁸ For Dyzenhaus, principles derived from lesser-known cases can provide a precedent for future commitment to the ‘rule-of-law project’, especially when judicial uncertainty and weakness are identified. His analysis of the Belmarsh decisionFootnote ⁹ is an excellent example of how judges have failed in their commitment despite holding the provisions in question unconstitutional. This is one of the most critically engaging chapters of Dyzenhaus’s book.

Dyzenhaus’s unwavering position related to the commitment of all three branches of government to the rule of law resonates with developments in the post-Communist world. The former Hungarian Constitutional Court president, Laszlo Sólyom, wrote that ‘[o]f all constitutional principles, the rule of law played a special, symbolic role: it represented the essence of the system change, being the watershed between the nondemocratic, nonconstitutional, socialist system and the new constitutional democracy’ (Scheppele, Reference Scheppele2000; Sólyom and Brunner, Reference Sólyom and Brunner1999). Sólyom refers to the Hungarian experience, where legal continuity and legal certainty guided the transition (and can be a blueprint for developments in the region). It could be argued that for Dyzenhaus, such enthusiasm and commitment to the rule of law complements his idea of the rule-of-law project. He argues that his:

The continental legal model that exists in post-Communist states has experienced a similar inspiration. Contrary to some views, Hungarian courts have not ‘gone mad and forgotten wise counsel that the law should be stable and uncertain, that judicial review should be used sparingly, that overconstitutionalisation of law may be too much of a good thing’ (Scheppele, Reference Scheppele2000). The most novel way that this has emerged has taken the form of the ‘invisible constitution’, which first arose in post-Communist Hungary. This is not an idea that is necessarily rooted in positive law, rather, it refers to the constitutional framework that the Hungarian Constitutional Court has developed without speaking about a ‘system of values’ (Sólyom and Brunner, Reference Sólyom and Brunner1999, p. 5). Owing to important historical reasons, the Hungarian Constitution eliminated all ideological references. Incorporating a similar approach to German courts, the Hungarian Court’s post-1989 jurisprudence, in the protection of constitutional rights, refers to the principle of legality and continuity of law as a ‘revolution under the rule of law’ (Sólyom and Brunner, Reference Sólyom and Brunner1999). In other words, it is this guiding principle that holds together the case law of the Court and the rule of law. The most powerful example of this can be found in the Court’s reasoning in the case in which the death penalty was abolished.Footnote ¹⁰ This landmark case lucidly argues that the human right to dignity is another key to the hidden constitution. Despite being the source of controversy, perceived by the Hungarian parliament as judicial activism and clear encroachment on the legislative and executive branches of power, the Court persevered in constructing a constitutional framework that offers a reliable and timeless standard. It adopted the Italian Constitutional Court’s notion of the ‘living law’, where the Court, when reviewing the content of the norm, reviews the ‘meaning and the content that can be attributed to it from the consistent and unitary practice of applying the law’ (Sólyom and Brunner, Reference Sólyom and Brunner1999, p. 4).

Overall, the constitution viewed in its entirety is the starting point. In the Hungarian experience, the Court’s case law explains the theoretical bases of the Constitution and of the rights included in it in order to form a coherent system with its decisions. The construction of the ‘invisible constitution’ provides a reliable standard of constitutionality beyond the Constitution, and answers attempts to amend the document out of political interests. Such a coherent system, it is understood, does not conflict with a new document to be established at any point in the future. The Constitutional Court enjoys the freedom in this process, as long as it remains within the framework of the concept of constitutionality (Scheppele, Reference Scheppele2006).

Concluding remarks

Ultimately, Dyzenhaus’s work concerns judges, and their responsibility – constitutional duty – to uphold the rule of law, especially when there are indications that the government is withdrawing from the rule-of-law project. His earlier work on South Africa (in fact Dyzenhaus went before the Truth and Reconciliation Commission to argue that judges were accountable for the facilitation of secrecy and arbitrariness that characterised the apartheid system) challenges us with questions found at the core of political philosophy when he dissects the Truth and Reconciliation Commission. He adopts a similar approach in his recent work.

His commitment resonates with the creation of the open society. Perhaps some lessons can be learned from revisiting the values upon which the open society was created, when thinking about the current context in which law and its legitimacy are discussed. For Hungary and other states, ‘there is a good deal of improvisation whenever the musicians find the score unpleasant’ (Sajó, Reference Sajó1995, p. 267) that should challenge more established democracies. While Dyzenhaus convincingly demonstrates that responsibility need not be lost in times of emergency, in order effectively to answer and address the challenge of terrorism, it is important not to ignore the context within which the law operates, as well as that within which terrorism operates. As noted above, terrorism will only fade when its sociopolitical roots are destroyed, not by the punitive measures that are imposed (Baumann, Reference Baumann2006, p. 109). Likewise, scholars of terrorism, such as Crenshaw, note that the ‘study of terrorism still lacks the foundation of extensive primary data based on interviews and life histories of individuals engaged in terrorism’ (Reference Crenshaw2000, p. 405). Recently, this point has been taken up by Campbell and Connolly, whose sociolegal-based research on Northern Ireland reveals that the law plays a key role in the repression and mobilisation of violent challenges to the state and, interestingly, demonstrates how a legal challenge can exist in a grey zone (Reference Campbell and Connolly2006). The rule-of-law project – the invisible constitution – ensures that unconstitutionality does not go unnoticed (Sajó, Reference Sajó1995), even when meeting seemingly good intentions defined by national security interests, recalling principles related to a legal culture and legal consciousness peculiar to our civil society. ‘It is we the people’s dedication to a culture of legality that is the guardian of the constitution’ (Dyzenhaus, 2007, p. 233).