Emergency Powers and Constitutional Theory (original) (raw)
Related papers
The law of the exception: A typology of emergency powers
International Journal of Constitutional Law, 2004
The law of the exception: A typology of emergency powers 211 and ordinary life taken up again. This conservative purpose is reflected in the fact that the executive is not permitted to use emergency powers to make any permanent changes in the legal/constitutional system. 2 Emergency powers, exercised in this conservative way, have long been thought to be a vital and, perhaps, even an essential component of a liberal constitutionalthat is, a rights-protecting-government. They are the key to resolving the dilemma faced by such governments when they are under either external or internal attack.
The Constitution of Law: Legality in a Time of Emergency
Canadian Journal of Political Science/Revue canadienne de science politique, 2007
This page intentionally left blank THE CONSTITUTION OF LAW Professor Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-oflaw project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.
The Emergency Paradox: Constitutional Interpretation in Times of Crisis
SSRN Electronic Journal, 2020
The Covid-19 pandemic has presented an extreme challenge to legal and political structures around the globe. Institutions are struggling to cope with this new reality, none more strenuously than our legal systems which have rapidly introduced and frequently amended criminal and other sanctions in the hopes of curbing the spread of the virus. In such circumstances, the old adage that desperate times call for desperate measures rings true, prompting calls for a loosening or suspension of previously held legal norms. This paper explores the role that the concept of an emergency plays in our interpretation of fundamental constitutional principles such as the rule of law. Emergencies are, ironically, commonplace. Fires break out and road accidents occur on a daily basis. Indeed, so frequently that we employ full-time emergency services to respond to them. The normalcy of emergencies reveals a descriptive paradox, given that emergencies are often defined as abnormal instances demanding extraordinary responses. As Greene puts it, "emergencies are simultaneously a universal, inevitable reality but also unforeseen, exceptional events invariably requiring equally exceptional responses". 1 If our contention is that an emergency is something exceptional, which requires an exceptional response, it becomes difficult to see how fires or road accidents qualify. In most cases, there is actually not much which is exceptional about an emergency, particularly from the perspective of the law. Even large-scale crises such as natural disasters or viral outbreaks can and have been addressed within the ordinary confines of existing institutional structures, with, at most, a fast-tracked timeline or loosening of some procedural red tape. And yet, these examples do often warrant a different response, even if it is not a wholly exceptional one. The difficulty then arises as to how emergencies interact with our constitutional norms, particularly those relating to the interpretation of legal concepts. Crises such as these force us to reconcile the exceptional with the fundamental. If emergencies are to have any legal significance such that they might trigger a state of exception, they must amount to more than simply natural concepts; they must also be legal concepts, interpreted harmoniously with 1 A Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (2018) 1.
David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency
Criminal Law and Philosophy, 2008
Inter arma silent leges'. In the wake of 9/11 political and theoretical discourse has witnessed an alarming spread of views arguing that in states of emergency the law must be silent or has very little to say. According to such views, governments must have the power to create black holes in the legal system, that is, carve out areas of government action where in the name of security the unfettered and unreviewable discretion of public officials reigns and ordinary guarantees of fairness are suspended. In his latest book David Dyzenhaus takes such views-and the practices they promote-to task and examines the courts' proper role in a state of national emergency. His starting point is actual judicial decisions (including the recent controversial rulings of the Canadian Supreme Court in Baker 1 and of the House of Lords in Rehman 2 and Belmarsh 3). But although he takes great care in teasing out the insights that these cases provide, Dyzenhaus is not so much interested in the-highly important-concrete questions they raise as in the broader puzzles about the nature of law that motivate them. For many years he has tackled these puzzles, often with reference to legal systems in crisis (See for instance D. Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the
The Indeterminacy of an Emergency: Challenges to Criminal Jurisdiction in Constitutional Democracy
Criminal Law and Philosophy, 2010
In this contribution I address the type of emergency that threatens a state's monopoly of violence, meaning that the state's competence to provide citizens with elementary security is challenged. The question is, whether actions taken by the state to ward off these threats (should) fall within the ambit of the criminal law. A central problem is the indeterminacy that is inherent in the state of emergency, implicating that adequate measures as well as constitutional constraints to be imposed on such measures cannot easily be determined in advance. This indeterminacy raises two interrelated issues. Firstly, the issue of whether it makes sense to speak of criminal jurisdiction when the existing jurisdiction is challenged as such. To what extent does the indeterminacy call for inherently unlimited powers of the state, implying there can be no such thing as criminal jurisdiction during a state of emergency? Second-if criminal jurisdiction is not in contradiction with the state of emergency-the issue of what criminal liability could mean in such a state needs to be confronted. To what extent does the indeterminacy inherent in the state of emergency jeopardise criminal liability because such indeterminacy engenders severe legal uncertainty regarding the standards against which the relevant actions are to be judged? Both issues will be discussed from the perspective of constitutional democracy, assuming that what is at stake in times of emergency is both the competence to sustain the monopoly of violence and the possibility to constrain the powers of the state.
Providing for the Unexpected: Constitutional Emergency Provisions
The article seeks to examine some of the general patterns with respect to treating emergencies as they are reflected in domestic constitutional arrangements. The article explores existing constitutional emergency arrangements of over seventy countries around the world, attempting to classify some of the important attributes of such constitutional arrangements into meaningful categories. Specifically, the article examines the various constitutional options with respect to such questions as: (1) how (and whether) to define a state of emergency in the constitutional document; (2) who has the power and authority to declare a state of emergency (and to terminate such a declaration); (3) what political and judicial control (if any) exists under the constitutional framework over the use of emergency powers; and (4) what are the legal ramifications of declaring a state of emergency with respect, for example, to the protection of individual rights and civil liberties and the possibility of s...
Vietnamese Journal of Legal Sciences
This paper seeks to examine the available constitutional models of theories of emergency powers. Part I of the paper traces the historical origins and the subsequent development of emergency states, drawing lessons from the works of Machiavelli, Schmitt, Rossiter, Rousseau... Part II presents and discusses some of the most important contemporary theories of emergency powers that propose different views and perspectives on the central issue of the attribution and exercise of State powers in times of emergency, i.e., either in the hands of the executive, the legislative or the judicial branch of the state, and why. Part III illustrates the concerns pertaining to emergency powers by looking at examples of three specific countries, namely Vietnam, India and Canada.