Roach, Kent --- "Comparative Constitutional Law and the Challenges of Terrorism Law" [2011] ELECD 389; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 29

Section Title: Comparative Constitutional Law and the Challenges of Terrorism Law

Author(s): Roach, Kent

Number of pages: 19

Extract:

29. Comparative constitutional law and the challenges of
terrorism law
Kent Roach



1 INTRODUCTION

Terrorism has been a main preoccupation for governments and courts since the terrorist
attacks of September 11, 2001 (henceforth 9/11). The response of governments, legislatures,
courts and international institutions to 9/11 provides a kind of horrible natural experiment of
comparative constitutional law and scholarship in action. Book-length studies are starting to
appear which examine on a comparative basis common constitutional themes in counter-
terrorism law such as the limitation of rights (Sottiaux, 2008; Donohue, 2008) and the fate of
non-discrimination norms (Moeckli, 2008). Comparative constitutional law as applied to
terrorism is becoming an innovative, wide-ranging and challenging field.
Some of the most prominent scholarship has stressed that courts have generally deferred
to the executive and legislative branches of government in circumstances of real or appre-
hended emergency such as those caused by terrorism. Building on this historical record, some
scholarship has argued that courts should, for reasons of democratic legitimacy and institu-
tional competence, defer to governments (Posner, 2006; Posner and Vermeule, 2007). In
order to preserve the law from distortions caused by the exigencies of terrorism, others
suggest that courts should avoid confrontations with governments and that governments
should be allowed to act in an extra-legal manner (Tushnet, 2003; Gross, 2003). Some have
even predicted that 9/11 would demonstrate the `futility' of relying on a bill of rights enforced
by courts (Ewing, 2004; Ewing and Tham, 2008), while ...