New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Oxford Journal of Legal Studies (2009)

Abstract

Wartime challenges democracies both from without and within. The need to marshal resources against a foreign enemy prompts the centralization of authority which, in turn, threatens to compromise domestic liberty. This article, originally delivered as the 2008 Hart Lecture, examines the ability of democracies to survive military threat with their core liberties intact. The focus is not on the more familiar liberty versus security trade-offs, but on the ways in which divided political authority in democracies serves as a check to both military misadventure and excessive internal suppression. The article begins with a historic account of how political accountability in democracy, from Athens forward, helps explain the relative military success that democracies have enjoyed. Further, even where military emergency has forced emergency measures, the longer-term result tended to be an expansion of democratic accountability, as with the grant of the franchise to those who had served. The core argument is that the political accountability of executive authority, even in times of war, has had both military and political benefits. The article then turns to an examination of the modern war on terror. Here the historic advantages of democracy in terms of citizen involvement and common enterprise are least apparent. The final sections of the article question how well our inherited institutions will perform over long-term conditions of asymmetric warfare against non-state adversaries. The final conclusion is that new frontier of war may place greater strains of judicial oversight of executive claims of exceptional authority precisely because the political safeguards of democracy, while still critical, may not be sufficient.

Date of Authorship for this Version

4-2-2009