Emergencies and the Limits of Legality

Author: Victor Ramraj
Publisher: Cambridge University Press
ISBN: 9780521895996
Published In: October 2008
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Most modern states turn swiftly to law in an emergency. The global response to the 11 September 2001 attacks on the United States was no exception, and the wave of legislative responses is well-documented. Yet there is an ever-present danger, borne out by historical and contemporary events, that even the most well-meaning executive, armed with extraordinary powers, will abuse them. This inevitably leads to another common tendency in an emergency, to invoke law not only to empower the state but also in a bid to constrain it. Can law constrain the emergency state or must the state at times act outside the law when its existence is threatened? If it must act outside the law, is such conduct necessarily fatal to aspirations of legality? This collection of essays – at the intersection of legal, political and social theory and practice – explores law’s capacity to constrain state power in times of crisis.

Contents:: 1. No doctrine more pernicious? Emergencies and the limits of legality Victor V. Ramraj; Part I. Legality and Extralegality:
2. The compulsion of legality David Dyzenhaus;
3. Extralegality and the ethic of political responsibility Oren Gross; Part II. Conceptual and Normative Theories:
4. Emergency logic: prudence, morality, and the rule of law Terry Nardin;
5. Indefinite detention: rule by law or rule of law? R. Rueban Balasubramaniam; Part III. Political and Sociological Theories:
6. The political constitution of emergency powers: some conceptual issues Mark Tushnet;
7. A topography of emergency power Nomi Claire Lazar;
8. Law, terror and social movements: the repression-mobilisation nexus Colm Campbell; Part IV. Prospective Constraints on State Power:
9. Emergency strategies for prescriptive legal positivists: anti-terrorist law and legal theory Tom Campbell;
10. Ordinary laws for emergencies and democratic derogation from rights Kent Roach;
11. Presidentialism and emergency government William E. Scheuerman; Part V. Judicial Responses to Official Disobedience:
12. Necessity, torture and the rule of law A. P. Simester;
13. Deny everything: intelligence activities and the rule of law Simon Chesterman; Part VI. Post-Colonial and International Perspectives:
14. Exceptions, bare life and colonialism Johan Geertsema;
15. Struggle over legality in the midnight hour: governing the international state of emergency Kanishka Jayasuriya;
16. Inter arma silent leges? Black hole theories of the laws of war C. L. Lim.