The Indeterminacy of an Emergency: Challenges to Criminal Jurisdiction in Constitutional Democracy (original) (raw)
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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.
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 Rule of Law in Times of Crisis - Legal-Philosophical Considerations on the States of Emergency
2010
This article aims to contribute to the discussion about the rule of law and about its definition by looking at the situations where the rule of law is taken to the test – times of emergencies. States of exception and laws of emergency have specific characteristics – one fundamental characteristic of these emergency mechanisms is that legislative power is shifted from the legislative to the executive or in other words democracies become less democratic. By analysing the principle of the rule of law in its conjunction with the nature of emergencies and the structure of states of emergency, their interconnection will become more transparent. It will logically prove that rules regarding the states of exception concern only democracies and that the rule of law continues also within times of crisis. There is no democracy without a conception of the rule of law and the rule of law is only working in democracies and therefore inapplicable to authoritarian regimes. Having established that, this article adds to the legal-dogmatic understanding of the rules of emergency powers by elaborating them on the basis of the concepts democracy, rule of law and separation of powers.
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
2021
The conceptualisation of a state of emergency has emerged in the discourse of politics, international human rights and constitutional law as the most potent threat to the full realisation and implementation of constitutional and international human rights. During the ongoing COVID-19 pandemic, state of emergency has become a tool for the violation of fundamental human rights not only in the West African region, but globally. This article seeks to examine the concept of state of emergency in international law and constitutional jurisprudence in order to understand whether recent claims of many governments declaring states of emergency can be justified. This article analyses and reviews the constitutional history of the use of state of emergency in Europe, United States and eventually three West Africa counties in Ghana, Nigeria and Sierra Leone.
Human Rights, Emergencies, and the Rule of Law
Human Rights Quarterly, 2012
Experience suggests that public emergencies pose a heightened threat of grave and systematic human rights abuse. To address this threat, international law regulates states’ derogation from their human rights commitments through a two-tiered inquiry: First, are circumstances on the ground sufficiently dire to warrant a state of emergency? Second, if a state of emergency is warranted, are the state’s responsive measures strictly necessary to address the emergency? This article illuminates the normative basis for international law’s two-tiered approach to public emergencies by arguing that human rights are best conceived in Kantian terms as norms arising from a fiduciary relationship between states (or state-like actors) and the citizens and noncitizens subject to their power. States bear a fiduciary duty to guarantee subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory of human rights clarifies the substantive and procedural principles that guide international law’s regulation of public emergencies. It also disarms Carl Schmitt’s critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.
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...
Emergency Powers and Constitutional Theory
2008
On either side of the North Atlantic, constitutional theory has become increasingly parochial. Far too often, constitutional theorists have been so distracted by local controversies and local debates that the broader aspiration of constitutionalism—subordinating arbitrary political power to law—is taken for granted.2 Surprisingly, this parochialism is also evident in contemporary debates over emergency powers. I say ‘surprisingly’ because we might reasonably expect that tension between the aspirations of liberal legalism and the exercise of emergency powers to point directly to the foundations of the legal order. Whatever else we might think about Carl Schmitt’s political philosophy, he was surely right to accord to the ‘exception’ a central theoretical importance: ‘[A] philosophy of concrete life,’ Schmitt argues, ‘must not withdraw from the exception and the extreme case, but must be interested in it to the highest degree.’3