By Victor V. Ramraj
This publication was once first released in 2008. newest states flip speedily to legislation in an emergency. the worldwide reaction to the eleven September 2001 assaults at the usa was once no exception, and the wave of legislative responses is easily documented. but there's an ever-present risk, borne out by way of old and modern occasions, that even the main well-meaning government, armed with impressive powers, will abuse them. This necessarily ends up in one other universal tendency in an emergency, to invoke legislations not just to empower the kingdom but additionally in a bid to constrain it. Can legislations constrain the emergency nation or needs to the kingdom now and then act outdoors the legislation whilst its lifestyles is threatened? If it needs to act open air the legislation, is such behavior unavoidably deadly to aspirations of legality? This selection of essays - on the intersection of criminal, political and social idea and perform - explores law's skill to constrain nation strength in occasions of trouble.
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Additional info for Emergencies and the Limits of Legality
Locke’s account of prerogative authority is highly ambiguous, the manifestation of a profound normative instability in his theory. The ambiguity comes about because Locke vacillates in his answer to the question whether the executive, personified in the figure of the prince, exercises the 15 16 Dicey, Law of the Constitution, p. 289. J. Locke, Two Treatises on Government, P. ) (Cambridge: Cambridge University Press, 1988), p. 375. 17 If it is the former, then it seems that the authority comes not from his official position, but from whether he handles the emergency appropriately, an authority which depends on his moral character, and thus, ultimately on the political constitution.
Or it requires a move to an external normativity, but one which is existential, which is to say unanchored in liberal democratic values. In respect of internal normativity, the commitment to the normativity of law entails that jurists proceed as if law’s claim to authority can be vindicated. Thus, for example, lawyers for the Bush administration and judges sympathetic to its policies, notably Justice Thomas of the USA Supreme Court, do not argue that the Bush administration has authority to act ultra vires – beyond the limits of the law – in its ‘war on terror’.
Fuller, The Morality of Law, rev. edn (New Haven: Yale University Press, 1969). I do not consider Gustav Radbruch’s position to be a natural law one. Rather, as I have argued elsewhere, it is positivism with a minus sign – law is positive law with the exception of extremely unjust laws that do not count as law because of their violation of criteria for injustice external to law. See D. Dyzenhaus, ‘The Dilemma of Legality and the Moral Limits of Law’, in A. Sarat, L. M. ), The Limits of Law (Stanford: Stanford University Press, 2005), p.