THE EVERYDAY PROBLEM OF EMERGENCIES

Abstract

Emergency powers are as old as constitutionalism, reflecting fundamental tensions in the rule of law that pervade many aspects of political life. Hence, exploring philosophical and institutional aspects of emergencies can lead to broader conclusions about law and individual power. By engaging not just emergency powers but aspects of administrative law with a similar structure, David Dyzenhaus concludes that all branches of government ought to rule in a ‘spirit of legality’ according to principles underlying the rule of law. This aspirational conception of the rule of law raises important questions about the relationship between empirical and normative enquiry. Related questions arise in Oren Gross and Fionnuala Ní Aoláin's new book. These authors argue that existing emergency law rests on an empirical mistake with serious normative consequences. If emergencies lack discrete beginnings and endings, which institutional arrangements minimize these consequences? Both books leave critical questions in their wake, brilliantly exploring – without settling – the question of extra-legal action. The complex relationship of is and ought remains: What is the place of empirical facts of political life in normative enquiry? And what role do normative considerations play in establishing empirical conditions?