By Victor V. Ramraj
This publication used to be first released in 2008. most recent 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 definitely documented. but there's an ever-present chance, borne out through ancient and modern occasions, that even the main well-meaning govt, armed with remarkable powers, will abuse them. This unavoidably results in one other universal tendency in an emergency, to invoke legislations not just to empower the nation but additionally in a bid to constrain it. Can legislations constrain the emergency nation or needs to the nation from time to time act outdoor the legislations whilst its life is threatened? If it needs to act open air the legislations, is such behavior unavoidably deadly to aspirations of legality? This number of essays - on the intersection of criminal, political and social conception and perform - explores law's means to constrain nation energy in occasions of problem.
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Additional resources for Emergencies and the Limits of Legality
68 And while Dyzenhaus, with Dicey, prefers ex ante constraints 65 66 67 68 See K. L. Lim, ‘Inter Arma Silent Leges? Black hole theories of the laws of war’ (Chapter 16), this volume, p. 000. This includes not only the authors already mentioned, but also Johan Geertsema, Chapter 14. Scheuerman, ‘Emergency Powers and the Rule of Law After 9/11’. Gross specifically addresses the temporal issue in Chapter 3, p. 000. no doctrine more pernicious? 17 on power where governments have adequate time to craft them,69 he acknowledges, again echoing Dicey, that in times of emergency, it may be necessary for the executive to act first, and seek legal permission retrospectively.
C. Schmitt, Political Theology: Four Chapters on the Theory of Sovereignty (Cambridge, MA: MIT Press, 1988). , p. 15. For his most recent statement of the model, see O. Gross and F. N´ı Aol´ain, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006), pp. 110–72. 33 34 emergencies and the limits of legality might seem to be a version of external realism but, as I will show, his position is subject to what I call the compulsion of legality: the compulsion to justify all acts of state as having a legal warrant, the authority of law.
Torture). 93 So he argues for a conception of necessity as a rationalebased justification which focuses on the actor’s reasons for acting. On this approach, Simester argues, most putative reasons for torture would be excluded. As for whether necessity or duress could be invoked as an excuse, Simester insists that, as a ‘concession to human frailty’,94 it would 88 90 91 93 89 Chapter 7. Dyzenhaus, Law of the Constitution, pp. 189–90. O. Gross, ‘Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience’.
Emergencies and the Limits of Legality by Victor V. Ramraj