Emergencies And The Limits Of Legality

Author: Victor V. Ramraj
Publisher: Cambridge University Press
ISBN: 9781107403901
Size: 39.58 MB
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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.

Emergency Powers In Asia

Author: Victor V. Ramraj
Publisher: Cambridge University Press
ISBN: 052176890X
Size: 15.55 MB
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What role does, and should, legal, political, and constitutional norms play in constraining emergency powers, in Asia and beyond.

States Of Emergency And The Law

Author: M. Ehteshamul Bari
Publisher: Taylor & Francis
ISBN: 1351685929
Size: 50.98 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.

Necessity And National Emergency Clauses

Author: Diane A. Desierto
Publisher: Martinus Nijhoff Publishers
ISBN: 900421853X
Size: 56.94 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.

The Harbinger Theory

Author: Robert Diab
Publisher: Oxford University Press
ISBN: 0190243252
Size: 59.21 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.

The Constitution Of The Criminal Law

Author: R. A. Duff
Publisher: OUP Oxford
ISBN: 0191655287
Size: 32.57 MB
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The third book in the Criminalization series examines the constitutionalization of criminal law. It considers how the criminal law is constituted through the political processes of the state; how the agents of the criminal law can be answerable to it themselves; and finally, how the criminal law can be constituted as part of the international order. Addressing the ways in which and the grounds on which types of conduct can be justifiably criminalized, the first four chapters of this volume focus on the questions that arise from a consideration of the political constitution of the criminal law. The contributors then turn their attention to the role of the state, its institutions and officials, and their role not only as creators, enactors, interpreters, and enforcers of the criminal law, but also as subjects of it. How can the agents of the criminal law also be answerable to it? Finally discussion turns to how the criminal law can be constituted as part of an international order. Examining the relationships between domestic laws of different nation-states, and between domestic criminal law and international or transnational law, the chapters also look at the authority and jurisdiction of international criminal law itself, and its relationship to other dimensions of the international order. A vital examination of one of the most important topics in modern criminal legal theory, this volume raises new questions central to the study of the criminal law and offers new suggestions for addressing them.

The Limits Of Constitutional Democracy

Author: Jeffrey K. Tulis
Publisher: Princeton University Press
ISBN: 9781400836796
Size: 24.38 MB
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Constitutional democracy is at once a flourishing idea filled with optimism and promise--and an enterprise fraught with limitations. Uncovering the reasons for this ambivalence, this book looks at the difficulties of constitutional democracy, and reexamines fundamental questions: What is constitutional democracy? When does it succeed or fail? Can constitutional democracies conduct war? Can they preserve their values and institutions while addressing new forms of global interdependence? The authors gathered here interrogate constitutional democracy's meaning in order to illuminate its future. The book examines key themes--the issues of constitutional failure; the problem of emergency power and whether constitutions should be suspended when emergencies arise; the dilemmas faced when constitutions provide and restrict executive power during wartime; and whether constitutions can adapt to such globalization challenges as immigration, religious resurgence, and nuclear arms proliferation. In addition to the editors, the contributors are Sotirios Barber, Joseph Bessette, Mark Brandon, Daniel Deudney, Christopher Eisgruber, James Fleming, William Harris II, Ran Hirschl, Gary Jacobsohn, Benjamin Kleinerman, Jan-Werner Müller, Kim Scheppele, Rogers Smith, Adrian Vermeule, and Mariah Zeisberg.

The Long Decade

Author: David Jenkins
Publisher: Oxford University Press
ISBN: 0199368341
Size: 78.22 MB
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The terrorist attacks of 9/11 precipitated significant legal changes over the ensuing ten years, a "long decade" that saw both domestic and international legal systems evolve in reaction to the seemingly permanent threat of international terrorism. At the same time, globalization produced worldwide insecurity that weakened the nation-state's ability to monopolize violence and assure safety for its people. The Long Decade: How 9/11 Changed the Law contains contributions by international legal scholars who critically reflect on how the terrorist attacks of 9/11 precipitated these legal changes. This book examines how the uncertainties of the "long decade" made fear a political and legal force, challenged national constitutional orders, altered fundamental assumptions about the rule of law, and ultimately raised questions about how democracy and human rights can cope with competing security pressures, while considering the complex process of crafting anti-terrorism measures.

Sovereignty Emergency Legality

Author: Austin Sarat
Publisher: Cambridge University Press
ISBN: 1139483773
Size: 49.16 MB
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It is widely recognized that times of national emergency put legality to its greatest test. In such times we rely on sovereign power to rescue us, to hold the danger at bay. Yet that power can and often does threaten the values of legality itself. Sovereignty, Emergency, Legality examines law's complex relationship to sovereign power and emergency conditions. It puts today's responses to emergency in historical and institutional context, reminding readers of the continuities and discontinuities in the ways emergencies are framed and understood at different times and in different situations. And, in all this, it suggests the need to be less abstract in the way we discuss sovereignty, emergency, and legality. This book concentrates on officials and the choices they make in defining, anticipating, and responding to conditions of emergency as well as the impact of their choices on embodied subjects, whether citizen or stranger.

Torture And Moral Integrity

Author: Matthew H. Kramer
Publisher: OUP Oxford
ISBN: 0191023647
Size: 46.28 MB
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Torture and Moral Integrity is about the wrongness of torture and the nature of morality. It discusses multiple types of torture with great philosophical acuity and it seeks to explain why interrogational torture and other types of torture are always and everywhere morally wrong. At the same time, it rigorously plumbs the general structure of morality and the intricacies of moral conflicts and it probes some of the chief grounds for the moral illegitimacy of various modes of conduct. It sophisticatedly defends a deontological conception of morality against some subtle critiques that have been mounted during the past few decades by proponents of consequentialism. The book tackles a concrete moral problem: a problem that has been heatedly debated during recent years in the governmental and military institutions of many countries as well as in academic circles. At the same time it tackles some very abstract issues in moral and political philosophy. Moreover, as becomes apparent at numerous junctures, the abstract ruminations and the concrete prescriptions are closely connected: Kramer's recommendations concerning the legal consequences of the perpetration of torture by public officials or private individuals, for example, are based squarely on his more abstract accounts of the nature of torture and the nature of morality. His philosophical reflections on the structure of morality are the vital background for his approach to torture, and his approach to torture is a natural outgrowth of those philosophical reflections.