Extra-legality and the ethic of political responsibility

Abstract

Whoever wants to engage in politics at all, and especially in politics as a vocation … lets himself in for the diabolic forces lurking in all violence. Would not the burden on the official be so great that it would require circumstances of a perfectly extraordinary character to induce the individual to take the risk of acting? The answer is of course yes, that's the point. Introduction Public officials, like everybody else, ought to obey the law, even when they disagree with specific legal commands. However, there may be extreme exigencies when officials may regard strict obedience to legal authority as irrational or immoral. Public officials who believe that the law is so fundamentally unjust as to be devoid of both legitimacy and legality may exercise their discretion and refuse to apply, or seek actively to undermine, such law. The extra-legal measures model of emergency powers (ELM) invokes the possibility that public officials having to deal with extreme cases may consider acting outside the legal order while acknowledging openly their actions and the extra-legal nature of such actions and accepting the possible consequences. ELM has been challenged as embracing brazen lawlessness by placing public officials in a ‘legal black hole…a zone uncontrolled by law’. This chapter begins to address some of those criticisms.