the constitution of law legality in a time of emergency

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The Constitution Of Law

Author : David Dyzenhaus
ISBN : 9781139460507
Genre : Law
File Size : 26. 74 MB
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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-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

The Constitution Of The Environmental Emergency

Author : Jocelyn Stacey
ISBN : 9781509920297
Genre : Law
File Size : 86. 83 MB
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This book argues for a reframing of environmental law. It starts from the premise that all environmental issues confront lawmakers as emergencies. Environmental issues pose a fundamental challenge to law because it is impossible to reliably predict which issues contain the possibility of an emergency and what to do in response to such an unforeseen event. These features undermine the conventional understanding of the rule of law. This book argues that approaching environmental issues from the emergency perspective leads us to an understanding of the rule of law that requires public justification. This requirement recentres the debates in environmental law around the question of why governance under the rule of law is something worth having in the environmental context. It elaborates what the rule of law requires of decision-makers in light of our ever-present vulnerability to catastrophic environmental harm. Controversial, compelling and above all timely, this book presents an important new perspective on environmental law.

States Of Emergency And The Law

Author : M. Ehteshamul Bari
ISBN : 9781351685924
Genre : War and emergency legislation
File Size : 77. 87 MB
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In Bangladesh, the absence of effective constitutional safeguards for governing emergency regimes has resulted in each of the five emergencies being invoked on the imprecise ground of internal disturbance. Two of these emergencies were even continued after the alleged threat posed to the life of the nation was over. Furthermore, during these five periods of emergency, either all or most of the fundamental rights guaranteed by the Constitution were suspended and the power of preventive detention was abused. Since no systematic and structured research has so far been carried out evaluating the Bangladeshi Constitution's provisions concerning the proclamation of emergency, suspension of fundamental rights and preventive detention, and the invocation of these extraordinary measures, this book will enhance knowledge by identifying the flaws, deficiencies and lacunae of the constitutional provisions concerning these exceptional measures. Consequently, based on these findings, recommendations will be put forward to rectify these defects from comparative constitutional law and normative perspectives. The outcome of this book will not only establish the best means for ensuring the maintenance of the rule of law but also for preventing undue intrusion on the fundamental human rights of individuals during emergency situations in Bangladesh. This book will be of great interest and use to scholars and students of comparative constitutional law, human rights law and Asian law. Given the law reform analysis undertaken in this work, it will also be beneficial for the policy makers in Bangladesh and for the policy makers of constitutional polities facing similar problems with the issue of constraining the exercise of emergency powers.

Foundations Of Public Law

Author : Martin Loughlin
ISBN : 9780191648175
Genre : Law
File Size : 89. 98 MB
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Foundations of Public Law offers an account of the formation of the discipline of public law with a view to identifying its essential character, explaining its particular modes of operation, and specifying its unique task. Building on the framework first outlined in The Idea of Public Law (OUP, 2003), the book conceives public law broadly as a type of law that comes into existence as a consequence of the secularization, rationalization and positivization of the medieval idea of fundamental law. Formed as a result of the changes that give birth to the modern state, public law establishes the authority and legitimacy of modern governmental ordering. Public law today is a universal phenomenon, but its origins are European. Part I of the book examines the conditions of its formation, showing how much the concept borrowed from the refined debates of medieval jurists. Part II then examines the nature of public law. Drawing on a line of juristic inquiry that developed from the late sixteenth to the early nineteenth centuries-extending from Bodin, Althusius, Lipsius, Grotius, Hobbes, Spinoza, Locke and Pufendorf to the later works of Montesquieu, Rousseau, Kant, Fichte, Smith and Hegel-it presents an account of public law as a special type of political reason. The remaining three Parts unpack the core elements of this concept: state, constitution, and government. By taking this broad approach to the subject, Professor Loughlin shows how, rather than being viewed as a limitation on power, law is better conceived as a means by which public power is generated. And by explaining the way that these core elements of state, constitution, and government were shaped respectively by the technological, bourgeois, and disciplinary revolutions of the sixteenth century through to the nineteenth century, he reveals a concept of public law of considerable ambiguity, complexity and resilience.

Routledge Handbook Of Constitutional Law

Author : Mark Tushnet
ISBN : 9781135100193
Genre : Law
File Size : 51. 46 MB
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The Routledge Handbook of Constitutional Law is an advanced level reference work which surveys the current state of constitutional law. Featuring new, specially commissioned papers by a range of leading scholars from around the world, it offers a comprehensive overview of the field as well as identifying promising avenues for future research. The book presents the key issues in constitutional law thematically allowing for a truly comparative approach to the subject. It also pays particular attention to constitutional design, identifying and evaluating various solutions to the challenges involved in constitutional architecture. The book is split into four parts for ease of reference: Part One: General issues "sets issues of constitutional law firmly in context including topics such as the making of constitutions, the impact of religion and culture on constitutions, and the relationship between international law and domestic constitutions. Part Two: Structures presents different approaches in regard to institutions or state organization and structural concepts such as emergency powers and electoral systems Part Three: Rights covers the key rights often enshrined in constitutions Part Four: New Challenges - explores issues of importance such as migration and refugees, sovereignty under pressure from globalization, Supranational Organizations and their role in creating post-conflict constitutions, and new technological challenges. Providing up-to-date and authoritative articles covering all the key aspects of constitutional law, this reference work is essential reading for advanced students, scholars and practitioners in the field.

The Harbinger Theory

Author : Robert Diab
ISBN : 9780190243258
Genre : Law
File Size : 67. 63 MB
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North American law has been transformed in ways unimaginable before 9/11. Laws now authorize and courts have condoned indefinite detention without charge based on secret evidence, mass secret surveillance, and targeted killing of US citizens, suggesting a shift in the cultural currency of a liberal form of legality to authoritarian legality. The Harbinger Theory demonstrates that extreme measures have been consistently embraced in politics, scholarship, and public opinion, not in terms of a general fear of the greater threat that terrorism now poses, but a more specific belief that 9/11 was the harbinger of a new order of terror, giving rise to the likelihood of an attack on the same scale as 9/11 or greater in the near future, involving thousands of casualties and possibly weapons of mass destruction. It explains how the harbinger theory shapes debates about rights and security by virtue of rhetorical strategies on the part of political leaders and security experts, and in works of popular culture, in which the theory is often invoked as a self-evident truth, without the need for supporting evidence or authority. It also reveals how liberal advocates tend to be deferential to the theory, aiding its deeper entrenchment through the absence of a prominent public critique of it. In a unique overview of a range of skeptical evidence about the likelihood of mass terror involving WMD or conventional means, this book contends that a potentially more effective basis for reform advocacy is not to dismiss overstated threat claims as implausible or psychologically grounded, but to challenge the harbinger theory directly through the use of contrary evidence.

Democracy Emergency And Arbitrary Coercion

Author : Nick Sagos
ISBN : 9789004282575
Genre : Social Science
File Size : 85. 84 MB
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Liberal democracies deal poorly with states of emergency because they underestimate the corrosive effect of arbitrary coercion on established liberal democratic values. Far from protecting the rights of citizens, arbitrary emergency measures undermine citizens’ rights.

Necessity And National Emergency Clauses

Author : Diane A. Desierto
ISBN : 9789004218536
Genre : Law
File Size : 50. 3 MB
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Unveiling the complex dynamic between State sovereignty and necessity doctrine as historically practiced in international political relations, this book proposes analytical criteria to assess the lawfulness and legitimacy of interpretations of necessity and national emergency clauses in specialized treaty regimes.

Allgemeine Theorie Der Normen

Author : Hans Kelsen
ISBN : STANFORD:36105043741235
Genre : Jurisprudence
File Size : 62. 5 MB
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States Of Emergency In Liberal Democracies

Author : Nomi Claire Lazar
ISBN : 9781139479585
Genre : Political Science
File Size : 79. 22 MB
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In an emergency, statesmen concentrate power and suspend citizens' rights. These emergency powers are ubiquitous in the crisis government of liberal democracies, but their nature and justification is poorly understood. Based on a pluralist conception of political ethics and political power, this book shows how we can avoid the dangers and confusions inherent in the norm/exception approach that dominates both historical and contemporary debate. The book shows how liberal values need never - indeed must never - be suspended, even in times of urgency. Only then can accountability remain a live possibility. But at the same time, emergency powers can sometimes be justified with reference to extra-liberal norms that also operate in times of normalcy. By emphasizing the continuity between times of normalcy and emergency, the book illuminates the norms of crisis government, broadening our understanding of liberal democratic government and of political ethics in the process.

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