Recently Posted to SSRN:
"Security vs. Liberty: On Emotions and Cognition"
OREN GROSS, University of Minnesota Law School
The metaphor of balancing and the use of balancing tests have been invoked so regularly since the terrorist attacks of September 11, 2001, to explain the need for a trade-off between liberty and security that they have become “ambient feature[s] of our political environment.” In their book, Terror in the Balance, Eric Posner and Adrian Vermeule argue similarly that there exists a security-liberty frontier along which tradeoffs between security and liberty take place.
This paper examines critically the tradeoff thesis and challenges its basic assumptions through the prism of cognitive theory of decision-making. It argues that the assumption of interpersonal comparability between security and liberty cannot be maintained as the two are neither comparable, in general, nor are they interpersonally comparable in the sense that Posner and Vermeule suggest. Furthermore, I argue that in circumstances of extreme violent crises acts of balancing between security and liberty — of optimizing the tradeoff between the two — are, in fact, likely to be biased in ways that ought, at the very least, to be recognized and accounted for. Significantly, the pressures exerted by acute exigencies on decision-makers, coupled with certain unique features of crisis mentality and thinking, are likely to result in a systematic undervaluation of one interest (liberty) and overvaluation of another (security) so that the ensuing balance would be tilted in favor of security concerns at the expense of individual rights and liberties. The systematic nature of those biases suggests that failure to address them may turn such mistakes and errors into cognitive pathologies, i.e., decision methods that are not only mistaken but, indeed, irrational.
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