Permanent states of emergency and the rule of law : constitutions in an age of crisis / Alan Greene.
2018
K4700 .G74 2018 (Map It)
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Details
Title
Permanent states of emergency and the rule of law : constitutions in an age of crisis / Alan Greene.
Published
Oxford [UK] ; Portland, Oregon : Hart Publishing, 2018.
Call Number
K4700 .G74 2018
ISBN
9781509906154 (hardback ; alk. paper)
1509906150
1509906150
Description
xx, 223 pages ; 24 cm.
System Control No.
(OCoLC)1007042878
Bibliography, etc. Note
Includes bibliographical references and index.
Available in Other Form
Online version: Greene, Alan (Law teacher) author. Permanent states of emergency and the rule of law. Oxford [UK] ; Portland, Oregon : Hart Publishing, 2018 9781509906161 (DLC) 2017055288
Record Appears in
Table of Contents
Acknowledgements
vii
Introduction
xiii
1.
Ideal State of Emergency
1
Introduction
1
`Ideal' Emergency
2
Dictatorship of the Roman Republic
3
Function and Powers of the Dictator
4
Controls on the Roman Dictatorship
7
Unleashing the Tyranny of Dictatorship
10
`Ideal' Emergency in Legal Systems Today
11
Defining the Phenomenon
12
International Human Rights Law
12
Constitutional Definitions
15
Emergency Response
19
Ideal Type Emergency Paradigm
21
Existence of a Serious Threat to the State Recognised by an Organ of the State
22
Reactive or Defensive Mechanism
23
Consolidation of Powers in a Branch/Office of Government
24
Enactment of Exceptional Measures that would not have been Permitted in a State of Normalcy
25
Necessity of the Measures Enacted
26
Separation of Normalcy and Emergency
27
Conclusion
30
2.
Permanent State of Emergency
33
Introduction
33
Permanent State of Emergency: Separating Normalcy from Emergency
34
Individual Separation: Distinguishing Friend from Enemy
35
Geographical Separation
37
Legal Manifestations of Geographical Distinctions
43
Temporal Separation: The Permanent State of Emergency
45
Fall of the Emergency Paradigm?
48
Is the Emergency Paradigm Obsolete? Focusing on the Decision-Maker
48
Framing the Emergency: Focusing on the Decision-Makers
50
Democratic Decision-Making and States of Emergency
52
Broadening of Emergency Powers: Expanding the `Penumbra'
54
Terrorism as a Permanent Emergency
54
Economic Emergencies
57
De Facto Emergencies
61
Conclusion
62
3.
Permanent States of Emergency and Constituent Power
65
Introduction
65
Power beyond Law? The State of Emergency and the Legal Order
66
State of Emergency and the Pure Theory of Law
68
Power beyond the Law: Rejecting the Identity Thesis?
69
Carl Schmitt and the State of Exception
71
Concept of the Political: The Friend-Enemy Distinction
71
Schmitt's Critique of Liberalism: The State of Exception
73
Carl Schmitt and the State of Exception
74
Confronting the State of Exception: Preserving the Identity Thesis
77
Conflicts between Norms: The Hierarchy of Norms
78
Conflicts between Constitutional Norms
80
Unconstitutional Constitutional Norms: The Case for Judicial Review
82
Permanent State of Emergency as an Unconstitutional Constitutional Amendment
85
Constitutional Desuetude
86
Permanent State of Emergency and the Validity and Effectiveness of Constitutional Norms
88
Permanent States of Emergency and the Repudiation of Constitutional Norms
90
Permanent State of Emergency as a Claim for the Constituent Power
91
Constituent Power and the State of Emergency: The Case of Ireland
95
Conclusion
98
4.
Permanent States of Emergency and Legal Black Holes
99
Introduction
99
Legal Black Holes
100
National Security and Judicial Review
105
From Administrative Review to Constitutional Review
110
Constitutional Validity of Legislation
111
Political Questions and Judicial Review
113
Sceptical Views of Judicial Review and the Rule of Law
116
Legal Black Holes and Zones Beyond Law
119
Zones Beyond Law v Legal Black Holes: The Irish Example
120
Non-Justiciability of Article 28.3.3° and Constituent Power
123
Conclusions
125
5.
Permanent States of Emergency and Legal Grey Holes
127
Introduction
127
Legal Grey Holes
127
Emergency Powers and Legal Grey Holes in Practice
130
Ireland
130
Article 15 ECHR and the Meaning of `Public Emergency Threatening the Life of the Nation'
132
United Kingdom
134
Judicial Push Back?
136
Fortifying the Rule of Law? Human Rights and Legal Grey Holes
139
National Security and Human Rights
143
Legal Grey Holes and Constituent Power
147
Two Limbs of the Schmittian Challenge
148
Beyond Human Rights Norms
152
Ireland: Beyond the Security--Liberty Divide
152
Article 48 of the Weimar Constitution: Beyond the Security--Liberty Divide
155
Beyond National Security Emergencies
157
Conclusions
158
6.
Alternatives to Constitutional States of Emergency
161
Introduction
161
Why Emergency? The Problem with `Business as Usual'
161
`Business as Usual' and the `Shielding Effect' of Emergency Powers
164
Deepening of Emergency Powers: Legislative Accommodation
165
Legislative Accommodation: United States
166
Legislative Accommodation: United Kingdom
167
`Deepening' Effect of Legislative Accommodation
171
Permanent States of Emergency and Parliamentary Sovereignty
174
Prerogative Powers in a State of Emergency
175
Common Law Constitutionalism and Parliamentary Sovereignty
176
Common Law Constitutionalism and Emergency Powers
179
Parliamentary Sovereignty and Constituent Power
182
Relational Constituent Power
186
Parliamentary Sovereignty and Constituent Power: Conclusions
187
Extra-Legal Measures Model
189
ELM and the Source of Legal Authority
191
ELM and the Authority of Affirmation
192
Extra-Legal Measures: Conclusions
193
Conclusions
194
7.
Resisting the Permanent State of Emergency
197
Introduction
197
Reviewing the Existence of a State of Emergency
198
Ensuring Robust Review
198
Independent Reviewers in a Culture of Justification
202
Engineering Constitutions against Permanent States of Emergency
204
Legislative Scrutiny of Emergency Powers: Bruce Ackerman's Super-Majoritarian Escalator
204
Time-Limits and Sunset Clauses
205
`Discrete Conditions': The `Shielding Effect' of Emergency Powers
206
Limited Emergency Powers
207
Proportionality as a Controlling Factor
208
Transformative Nature of Permanent States of Emergency
209
Permanent States of Emergency and Constitutional Moments
211
Final Conclusions
213
Index
215