Aniceto Masferrer

Introduction: Security, Criminal Justice and Human Rights in Countering Terrorism in the Post 9/11 Era

In the aftermath of the 9/11 attacks on New York and Washington, many commentators claimed that the world had changed ‘forever’ with international terrorism constituting one of the defining global security challenges of the twenty-first century. The renewed focus on counter-terrorism law and policy also called into question whether the lessons drawn from previous terrorism emergencies are pertinent to the post-9/11 environment. Indeed, to what extent, if at all, are the principles identified for the liberal democratic response to traditional forms of terrorism applicable to a response to contemporary international terrorism? The historical, political and security implications of 9/11 notwithstanding, many scholars and policy-makers appear to agree that the basic tenets of the traditional liberal democratic response continue to apply to responses to contemporary international terrorism.

The Liberal State and Criminal Law Reform in Spain

Throughout the nineteenth century, European legal science experienced a profound transformation, the consequences of which are still relevant today1. It would be a mistake to suppose, however, that all the legal reforms that took place in Europe in the nineteenth century, originated and developed from nothing. The roots of this process of transformation can already be seen in the sixteenth, seventeenth and especially in the eighteenth century, and the course of the European Enlightenment.

The Myth of French Influence Over Spanish Codification: The General Part of the Criminal Codes of 1822 and 1848

The chapter aims to explore the scope of the foreign influences, that of the French in particular, in the criminal codes of 1822 and 1848/50. In doing so, the author departs from the views of some 19th century criminal lawyers who, like J. F. Pacheco, stated that in the old criminal laws “nothing was worthy of respect, or conservation” and “there was only one legitimate and viable system, the system of codification, the system of absolute change,” and recognizing that drafters were fully acquainted with the case of France, a jurisdiction that managed to turn its old laws—including the criminal ones—into modern codes (1804–1811). The author briefly presents the status quaestionis of the dichotomy between tradition and foreign influences in the 19th century codification of criminal law, then focuses on the scope of French influence in the criminal codes of 1822 and 1848/50, and concludes with some final considerations.

Tradition and Foreign Influences in the 19th Century Codification of Criminal Law: Dispelling the Myth of the Pervasive French Influence in Europe and Latin America

Any civil law student knows that most of provisions in any European or Latin American civil code derive from Roman law, that they were the outcome of a long and gradual scholarly elaboration extending from 12th century glossators to the natural lawyers of the 18th century. However, there is no such consensus about criminal law. The civil law tradition has doubtlessly committed more effort to the scholarly development of private law institutions than to those of public law, privileging civil law over criminal law. The main consequences of this fact are twofold: (i) 19th century criminal jurisprudence is sometimes presented as if had arisen out of the blue, or as if institutions contained in the 19th criminal codes broke with the past or bore no traces of Roman law; and (ii) since criminal codes supposedly broke with the past, the extent and scope of foreign influences—and the French in particular—on the criminal codes in Europe and Latin America are overemphasized. The chapter aims at dispelling this common place, and particularly the myth of the overall French influence in Europe and Latin America.

Taking Human Dignity More Humanely

The chapter argues that Kantian autonomy has sometimes been misunderstood, as if Kant would have viewed any choice as lawful, whatever its content might be. It should be noted that Kant followed earlier thinkers who had already found human rights (or natural rights) in the ‘dignity of human nature’. Thus Kant was not the first thinker to connect human rights with dignity, and the latter with human nature. The link between human rights, human nature and the expression ‘dignity’ appeared in the eighteenth century, but earlier than Kant.

Vulnerability and Human Dignity in the Age of Rights

The chapter emphasizes the fragility of human condition and the need for political powers and laws that pursue the protection of all individuals.

The Ill-Fated Union: Constitutional Entrenchment of Rights and the Will Theory from Rousseau to Waldron

This chapter revisits the key theses of Georg’s Jellinek’s Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History [1895]. The objective of this chapter is to expose the ‘umbilical cord’ that linked the notion of ‘constitutional’ rights and the will theory, on one side, and the internal incompatibility of notion of ‘inalienable rights’ with the will theory – reflecting an unabated conflict of the doctrines of parliamentary supremacy and constitutional rights, on another side. These doctrines are part of both ‘continental’ and ‘common law’ traditions. Our intent is also to reflect on the shared groundwork of the doctrine of sovereignty of Hobbes, Austin (and Dicey), on one side, and Rousseau, on another side. Our more particular thesis is that ‘neo-Benthamite’ positivists, as Waldron, assailing adjudication as being ‘undemocratic’, seem to return to the Rousseauan position, with all its flaws.

The State Power and the Limits of the Principle of Sovereignty: An Historical Approach

This chapter explores the notion of sovereignty and the limits of state power in the framework of criminal justice. It is not an easy enterprise to counter terrorism while respecting the rule of law and guaranteeing the security of citizens to the maximum extent possible without violating their fundamental rights. Theoretically, modern constitutionalism emerged to protect citizens from political abuses of power. In practice, however, fundamental rights are not always fully respected since the state is often tempted to exercise its power beyond legal boundaries. To limit the power of the state means to limit its sovereignty. Otherwise, the abuses of power by the state become inevitable. Surprisingly, modern constitutionalism applied limits to the state during an historical period in which sovereignty was regarded, in the realm of political philosophy, as an unlimited notion (Rousseau). Nevertheless, the notion of sovereignty, being the result of a long development in the Western legal tradition (particularly from the Middle Ages to the sixteenth century), was never regarded as unlimited. The first chapter analyses the limits to the principle of sovereignty in three specific periods. Firstly, in Roman antiquity, when, during the transition between the Republic and the Principality, Cicero weighed the values, principles and institutions of the republic, by resorting to the defence of freedom, the class of the optimates, a mixed constitution and to the natural law. Secondly, in the Middle Ages, where, in front of the Emperor, the Papacy, Pact laws and the observance of natural law became elements to limit the sovereignty of the monarch. Lastly, in the early Modern Age, the notion of sovereignty – and its limits – was notably developed by Jean Bodin in his most famous work, The Six Books of the Commonwealth. This historical survey is an attempt to demonstrate that the challenge of dealing with emergency is not new, and that the lessons of history demonstrate that unchecked power of the sovereign leads to the demise of liberty.