Balancing, Judicial Review and Disobedience: Comments on Richard Posner’s Analysis of Anti-Terror Measures (Not a Suicide Pact)
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Israel Law Review 43 (2):234-247 (2009)
The general assumption that underlines Richard Posner’s argument in his book Not a Suicide Pact is that decisions concerning rights and security in the context of modern terrorism should be made by balancing competing interests. This assumption is obviously correct if one refers to the most rudimentary sense of balancing, namely, the idea that normative decisions should be made in light of the importance of the relevant values and considerations. However, Posner advocates a more specific conception of balancing, both substantively and institutionally. Substantiality, he argues for balancing based on a consequential moral theory that rejects the ideas of deontological rights and particularly absolute or very weighty deontological rights. More specifically, it seems that Posner assumes a utilitarian theory that also rejects intrinsic concern for distributive justice. Institutionally, Posner argues that this method of reasoning should be adopted by judges when interpreting the constitution. These substantive and institutional background assumptions are of course controversial, but I do not dispute them in this Article. My critique concerns Posner’s conclusions based on these assumptions. Posner’s main claim is that given the magnitude of the danger of modern terrorism, even a small probability that an act of terror may occur justifies extreme anti-terror measures. While the general idea that even a slight risk of very serious harm justifies significant cost is plausible, I doubt Posner’s assumptions regarding the cost of various means of preventing these dangers, his claim that judicial review in this context should be very limited, and his suggestion of an absolute formal prohibition that is not strictly enforced in the context of measures such as interrogational torture.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Richard A. Posner (2001). Frontiers of Legal Theory. Harvard University Press.
Elbridge Colby (2007). Not a Suicide Pact: The Constitution in a Time of National Emergency - by Richard A. Posner. Ethics and International Affairs 21 (3):391–394.
Matthew D. Adler & Eric A. Posner (eds.) (2001). Cost-Benefit Analysis: Legal, Economic, and Philosophical Perspectives. University of Chicago Press.
William Martin (1999). Aristotle and Posner on Corrective Justice. Business Ethics Quarterly 9 (4):651-657.
Ilya Somin (2004). Pragmatism, Democracy, and Judicial Review: Rejoinder to Posner. Critical Review 16 (4):473-481.
Richard A. Posner (1995). Overcoming Law. Harvard University Press.
Brian E. Butler (2000). Posner's Problem with Moral Philosophy. The University of Chicago Law School Roundtable 7:325-343.
Ilya Somin (2004). Richard Posner's Democratic Pragmatism and the Problem of Ignorance. Critical Review 16 (1):1-22.
Added to index2010-01-06
Total downloads19 ( #203,823 of 1,911,774 )
Recent downloads (6 months)4 ( #181,474 of 1,911,774 )
How can I increase my downloads?