The April 26 issue of the German Journal Der Spiegel has an article (in English) by Professor Dieter Grimm, formerly of the German Constitutional Court (1987-1999), on How to Balance Freedom and Security. The comment gives an analysis of both the importance of and the limits to judicial balancing of individual freedoms and collective interests in the world after 9/11.
For Professor Grimm, it is clear that it is not always possible to maximize both liberty and security. He writes:
"There are limits to maximizing security if one wants to preserve the liberal system. And in a truly liberal democracy there are also limits to protecting the liberty of one's own citizens by denying it to foreigners. This is why the acceptability of security-enhancing measures depends on the right balance.
Balancing has become the most important tool when competing values or interests have to be reconciled. Legislators use balancing; authorities or agencies that apply the law do the same; judges who review laws or government acts engage in balancing. In constitutional law balancing and proportionality tests are in use in most systems when the question arises whether limitations of fundamental rights are acceptable in a free and democratic society."
Professor Grimm then makes a fundamental distinction between absolute principles that cannot be overridden en interests that can. In the German case, the crucial absolute principle is that of dignity. As dignity is inherent in every human being, it would be "a self-contradiction to use dignity-negating means in order to protect dignity. This forbids a number of extremely degrading treatments. Even a terrorist threat does not justify the use of any such means. He who allows it in extreme situations will soon find himself on a slippery slope".
By way of contrast, where this absolute principle of dignity is not at issue, balancing appears to professor Grimm to be "the appropriate method to solve the tension between liberty and security". Professor Grimm describes the "well-tried" four step mode of analysis used, for example, in Europe and in Canada, of assessing: (1) lawfulness, (2) suitability, (3) the availability of less restrictive alternatives, and (4) comparison of "the liberty encroached upon and the value in whose interest that happens". He writes:
"The last operation consists in balancing in the true sense. Here it is extremely important to define precisely what is to be put into the two scales of the balance. One scale, of course, is filled with the liberty that suffers a loss by the law or government act. The other scale is often filled with values like life, survival or security of the nation, protection of liberal democracy etc.
If these super-values are really at stake the result of balancing is clear from the outset. The more important - and the more abstract - the goal is in whose interest a liberty is limited the more likely it is that the balance will result in favour of the goal. Yet, just as a limitation usually does not impair a certain fundamental right totally, but affects only a certain aspect of a liberty, the means employed in the interest of security will rarely protect its object fully. The means the government wishes to employ will normally be a specific, partial contribution to an overall goal. If only this specific contribution goes into the second scale the result may often look different.
Therefore a careful use of the tool is crucial. The controlling and rationalizing effect of balancing depends on the degree of precision with which it is carried out."
The remainder of the article contains an overview of important examples of judicial resistance, from the Supreme Court of Canada, the House of Lords (unlimited detention), the German Constitutional Court (aircraft safety law) and the Israeli Supreme Court (torture), to exessive encroachments on individual liberties.