Full Description
This collection of essays is divided in two parts. In the first part, security is considered from a theoretical angle, as a phenomenon that has become an integral part of modern society and inevitably interacts with law in many ways. The aim of the authors' analyses is to emphasise the ambiguity of the notion of security and its tendency to expand and affect simultaneously different fields of law. Depending on the adopted approach, security can be understood in many different terms and through various concepts: inter alia through exceptionality, from a constructivist viewpoint, or as human security. Whereas for example, an 'existential' approach takes risk and danger as a fact of life and is based on the assumption of the fragility of the human condition, leading to traditional and military understandings of security, a constructivist approach regards security as a discursive speech act enabling criticism of security claims. Analysing security in connection with law highlights both tensions and contradictions.From classical analyses on states of emergency to new conceptualizations of security as a specific dimension within the process of European integration ('the European Security Constitution'), legal approaches to security and law today are facing many paradoxes and challenges. The second part of the book considers some of these security dilemmas in two specific areas of law: human rights and criminal law. Here, the authors address the militarisation of the fight against terrorism, the distinction between administrative and penal sanctions, the limits of intelligence activities and the scope of criminalisation. As the book brings together scholars from different fields of law focusing on law and security from particular perspectives it is appealing to those constitutional, criminal, international and EU lawyers who are interested in both theoretical and practical aspects of the relationship between security and law.
Contents
About the Authors List of Abbreviations Introduction Jens Kremer, Massimo Fichera PART I Chapter 1. Exception, Protection and Securitization: Security Mindsets in Law Jens Kremer 1. Introduction 2. Security as security mindsets 3. Security mindsets and law: protection and exception 4. Identifying security mindsets - the traditional security mindset 5. The expanded security mindset 6. The constructive security mindset: the Copenhagen School and law 7. Securitization 8. De-securitization 9. Securitization, the exception and law 10. Security mindsets and legal exceptions 11. Exceptions within the law: limitations and derogations 12. Exceptions 'above' the law: amendments 13. Conclusion Bibliography Chapter 2. A European Security Constitution? Kaarlo Tuori 1. Constitution and security 2. Dimensions and levels of constitution 3. Constitution and constitutionalisation Contents 4. Constitutional claims and promises 5. From Trevi to Maastricht 6. The significance of Amsterdam 7. Lisbon and after 8. The concept of security: from emergency to security 9. Individual and social aspects of security 10. Security in the context of the Area of Freedom, Security and Justice 11. The insecure security constitution Bibliography Chapter 3. Security Issues as an Existential Threat to the Community Massimo Fichera 1. Introduction 2. The concept of security 3. Margin of appreciation and security 3.1. The debate in international law (in particular, the ECHR) 3.2. The debate in the European courts 4. Conclusion Bibliography Chapter 4. Public Foundation as the Striving for Security Alun Gibbs 1. Globalised security 2. Security and the state 3. Returning to the problem of global security 4. Political life beyond security 5. Conclusion Bibliography PART II Chapter 5. Security and Rights in the War on Terror: On the Constitutive Insecurity of Rules Jarna Petman 1. Ruling out the enemy: defining terrorism 1.1. The unbridgeable gap 1.2. Those that will not be eliminated 2. A war without rules? 2.1. 'War on Terror' as a non-international armed confl ict 2.2. 'War on Terror' as an international armed confl ict 2.3. 'War on Terror' as an internal armed confl ict 3. Striking a balance: rights or security? 3.1. Rights over security 3.2. Security over rights 3.3. Security as rights 4. Reaching for certainties: the inalienable right not to be tortured? 5. On the constitutive insecurity of rules Bibliography Chapter 6. Administrative Measures in Counter-Terrorism Activities - More Leeway for the Imperatives of Security at the Expense of Human Rights? Tuomas Ojanen 1 Introduction 2. Manifestations and rationales 3. Constitutional implications of the administrative approach 4. Reliance on intelligence as the basis for administrative counter-terrorism measures 4.1. General observations 4.2. Excursion: use of opinions by the Finnish Security Intelligence Service in Finnish immigration law proceedings 5. Concluding observations Bibliography Chapter 7. Security and Criminal Law: A Diffi cult Relationship Kimmo Nuotio 1. Introduction 2. Security and safety 3. Risk/danger 4. The history of thought: Ewald and Foucault 5. 'Policey' as a governance of security 6. The European Union as an Area of Freedom, Security and Justice Bibliography Chapter 8. The Blurred Architecture of European Criminal Law Sakari Melander 1. Introduction 2. The subsidiarity of European criminal law 3. European criminal law in a European and international setting 4. The Area of Freedom, Security and Justice 5. Conclusion Bibliography Conclusions
