Judicial Balancing in Times of Stress: Comparing Diverse Approaches to the War on Terror

Abstract

This article explores the proper role of judicial balancing in cases arising out of the war on terror. The relevant cases have all relied on judicial balancing in spite of criticism suggesting that in relation to the war on terror the judicial role should be minimized or confined to application of preestablished categorical standards. The article advances the thesis that judicial balancing is appropriate and indispensable in this context, but that it has thus far not been used properly. This is because existing cases fail to distinguish between states of emergency and conditions of stress and seem caught between a criminal law paradigm, a law of war paradigm and a police powers law paradigm. After comparing recent decisions of the U.S. Supreme Court, the U.K. Law Lords and the Israeli Supreme Court, the article suggests that judicial balancing combined with a process-based institutional approach could be optimal, provided it is circumscribed by a conception of the war on terror as creating conditions of stress and a new hybrid legal paradigm, the war on terror law paradigm.

Keywords: balancing tests, terrorism, state of emergency