Safety and Security

• Publication year: 2021

85 Nebraska L. Rev. 454. Safety and Security

454

Jeremy Waldron(fn*)

Safety and Security

TABLE OF CONTENTS

I. The Neglect of Security in Political Philosophy .................... 455
A. The Trade-off Between Liberty and Security ...................... 455
B. Hobbes as a Theorist of Security ................................ 456
C. Drawing a Blank ................................................. 458
D. Collective Security, National Security, and Human
Security ........................................................ 459
II. The Pure Safety Conception and its Shortcomings ................... 461
III. Deepening the Pure Safety Conception ............................. 466
A. Economic Loss and Mode of Life ................................ 466
B. Security and Fear ............................................. 466
C. Security and Assurance ........................................ 469
D. Security and Other Goods ...................................... 471

IV. Public Goods and the Distribution of Security ..................... 473
A. Breadth and Distribution ....................................... 474
B. Policy and Definition .......................................... 475
C. Maximization: The Greatest Security of the Greatest Number? ........................................................ 477
D. Does Sheer Survival Trump Distributive Justice? ................ 480
E. Security as a Public Good ...................................... 482
F. Diminishing the Security of Some to Enhance the
Security of Others ............................................. 485
G. States, Security, and Political Legitimacy ..................... 489
H. Breadth and the Logic of Legitimacy ............................ 491
V. Breadth and Depth Together ......................................... 494
A. Fear and Identity ............................................... 495

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B. Security and Markets ............................................ 495
C. Our Way of Life ................................................. 497
D. Legal and Constitutional Routines ............................... 498
E. Security as a Collective Good ................................... 500

VI. Complicating the Trade-off ........................................ 502
VII. Conclusion ....................................................... 506

I. THE NEGLECT OF SECURITY IN POLITICAL PHILOSOPHY

A. The Trade-off Between Liberty and Security

When people talk, as they often do, about a trade-off between security and liberty--when they say (as many people said after September 11, 2001) that we need to adjust the balance between security and civil liberties(fn1)--what do they mean by security? Talk of a liberty-security balance has become so common that many view it as just an ambient feature of our political environment: "[I]t has become a part of the drinking water in this country that there has been a tradeoff of liberty for security, . . . that we have had to encroach upon civil liberty and trade some of that liberty we cherish for some of that security that we cherish even more."(fn2) When we spend time discussing the definition of "liberty" and the concept of civil liberties, we try to be clear, because we know it makes a difference to the trade-off what liberties in particular we have in mind.(fn3) However, we almost never address the question of what "security" means. In fact, when people talk in literature or in court about "the definition of security" what they usually produce is some view about what security requires at a particular time (in the way of legal or political measures).(fn4) They say nothing

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about the meaning of the concept itself. Although we know that "security" is a vague and ambiguous concept, and though we should suspect that its vagueness is a source of danger when talk of trade-offs is in the air,(fn5) still there has been little or no attempt in the literature of legal and political theory to bring any sort of clarity to the concept.

B. Hobbes as a Theorist of Security

When legal scholars write about liberty they can take advantage of an immense literature in political philosophy on the meaning of the term.(fn6) But it is shocking to discover how little attention has been paid to the topic of security by political philosophers. Historically, the two philosophers who have written most about security are Jeremy Bentham and Thomas Hobbes. In his book The Theory of Legislation, Bentham argued that "the care of security" was "the principal object of law."(fn7) What he meant by security, however, was legal constancy, certainty, and predictability so far as property rights were concerned, and it might be thought that this is of limited interest in our discussion of the liberty-security trade-off in the war on terrorism. In fact that is not the case; later we will find some aspects of Bentham's analysis to be quite useful (even though it is not an analysis which has been picked up on by any modern discussant of security).(fn8)

If any thinker in the canon of political philosophy could serve as the focus of a modern discussion of security, surely it would be Thomas Hobbes. For Hobbes, as we all know, the whole point of the political enterprise is security. It is for the sake of security--security against each other and security against outsiders--that we set up a sovereign.(fn9) It is the drive for security that leads us to give up our

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natural liberty and submit to the sovereign's commands.(fn10) It is the exigencies of security that determine the scale, the level, the duration, and the quality of organization that is requisite in the political realm.(fn11) Hobbes was a great analyst of concepts.(fn12) Yet almost alone among the leading concepts of the political realm, security is not subjected by Hobbes to any extensive analysis. The closest he comes is in a passage from The Elements of Law, where he writes:

[A] man may . . . account himself in the estate of security, when he can foresee no violence to be done unto him, from which the doer may not be deterred by the power of that sovereign, to whom they have every one subjected themselves; and without that security there is no reason for a man to deprive himself of his own advantages, and make himself a prey to others.(fn13)

Hobbes says surprisingly little beyond this about what "security" actually means, and he is followed in that by his modern commentators, who do not so much as list the concept in their indexes.(fn14) 458

Maybe this is because security operates as a sort of adjectival value in Hobbes's account. Maybe it is a mistake to look for treatments of it as an end in itself. Hobbes is interested in security of self-preservation, security of life and limb, security against violent death, security of "living out the time, which Nature ordinarily alloweth men to live."(fn15) Perhaps what we should be looking for in the index is safety, survival or self-preservation, and not security as such. In fact there is some discussion in Hobbes's book On the Citizen of safety and the sovereign's obligations in respect of his subjects' safety. We are told that "[b]y safety one should understand not mere survival in any condition, but a happy life so far as that is possible,"(fn16) and we are also told that because the sovereign can operate only through general laws, "he has done his duty if he has made every effort, to provide by sound measures for the welfare of as many of them as possible for as long as possible."(fn17) Both points will be important in what follows.(fn18)

C. Drawing a Blank

Whatever hints Hobbes has given us have not been followed up in the political philosophy literature. When asked for articles in two prominent political philosophy journals--Political Theory and Philosophy and Public Affairs--with the word "security" in the title, Journal Storage: The Scholarly Journal Archive (JSTOR) returned the "No Items Matched Your Search" result. (A search for "liberty" or "freedom" in article titles in the same journals returned seventy results.)(fn19) With monographs, it is harder to quantify. In this author's library, there are brief discussions of the concept of security in Henry Shue's book Basic Rights and in Robert Goodin's book Political Theory andPublic Policy.(fn20) Both will be discussed below,(fn21) but for now it is sufficient to say that these are mainly on the importance and priority to be accorded to security, not on its meaning. There is little or no discussion of security in the main texts of political philosophy.(fn22) The topic does not so much as rate a mention in Will Kymlicka's introductory

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text(fn23) or in William Connolly's Terms of Political Discourse,(fn24) while in D.D. Raphael's text, discussion of security is limited to a brief discussion of the state's role in upholding rights.(fn25)

As for the spate of books that appeared in the years immediately following the terrorist outrages of September 11, 2001, there is constant reference to the liberty-security trade-off. However, although these authors give us all sorts of recommendations and bright ideas about what is likely to promote or enhance security, they offer us little or nothing on what security means.(fn26)

D. Collective Security, National Security, and Human Security

We should be clear about what we are looking for. There is an immense literature on national security and also on collective security in the theory and study of international relations. There are whole journals called National Security Outlook and Journal of National Security Law and Policy, and innumerable articles with "collective security" in the title.(fn27) But these concepts are not quite the same as the security contemplated here.

The idea of collective security operates at the wrong level; it concerns security as among the nations of the world (or various subsets of them)...