Introduction

The legal response to the threat of terrorism has been driven, in large part, by public fear about future attacks and worst-case scenarios. There are, of course, many risks that ought to be taken seriously by governments. But all too often policy responses are motivated by a widespread public misperception of risk and a heightened collective sense of fear and vulnerability that call into question our ability to think clearly about policy options. In this chapter, I reconsider the role of the legislative, executive and judicial branches of government in an emergency, first by considering how misperception of risk and public fear influence policy-makers, and then by examining the role that judicial review can play in times of crisis.

One response to public fear is to respond legislatively to popular opinion, enacting strict anti-terrorism measures. As democratic as this option might first seem, it is problematic because, as empirical research shows us, social forces amplify and distort our judgments about risk, particularly in emotionally charged situations. Only on a thin, populist conception, could democracy be seen simply as an aggregating mechanism for mere popular opinion, rather than as a sophisticated system to promote public deliberation and ensure that public decisions are fair and informed ones.