Law in Times of Crisis: Emergency Powers in Theory and Practice

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Cambridge University Press, 30 окт. 2006 г.
The terrorist attacks of September 11, 2001, and the ensuing 'war on terror' have focused attention on issues that have previously lurked in a dark corner at the edge of the legal universe. This book presents a systematic and comprehensive attempt by legal scholars to conceptualize the theory of emergency powers, combining post-September 11 developments with more general theoretical, historical and comparative perspectives. The authors examine the interface between law and violent crises through history and across jurisdictions, bringing together insights gleaned from the Roman republic and Jewish law through to the initial responses to the July 2005 attacks in London. Three models of emergency powers are used to offer a conceptualization of emergency regimes, giving a coherent insight into law's interface with and regulation of crisis and a distinctive means to evaluate the legal options open to states for dealing with crises.

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rule and exception
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suspected of involvement in terrorist activities in Northern Ireland was
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invoking them instead of terrorists as the excuse and proposed
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The collaboration of the two organizations and at the same
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Algeria is nothing short of the disintegration of the state
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placed under nightly curfews for unaccompanied children under 16
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under the Antiterrorism Crime and Security Act of 2001 provided
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striking the purpose and inserting a significant purpose What this
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peace and order of significant magnitude then the Presidents decision
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organ that is to exercise emergency powers under a declared
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Nothing in this Constitution shall be invoked to invalidate any
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When government is unified in the sense that the President
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into that ordinary system Legislative provisions that are born out
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Interpretive accommodation
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the constitutions Contract Clause as well as its Due Process
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relaxed or perhaps even suspended in part in order to
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of powers Consequently all these systems are liable to be
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government that was a relic of the past and a
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2 Law for all seasons
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The Founding Fathers and the American people recognized the
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Holding the line
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inevitable49 The argument from the strategy of resistance is that
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question as to whether such a model is correct or
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progress77 may be less inevitable but more dangerous78 By the
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3 Models of extralegality
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law that say we must accept destruction of our way
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popular ex post ratification of such activities The process leading
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extraordinary power20 First the court could impose a punishment that
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All these matters apply to the extent that the judge
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is replete with examples of sophisticated exegesis and hermeneutics of
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crisis would have been the concession of sweeping constitutional
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The Executive in seizing the fugitive occurrence which so much
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ignoring a writ of habeas corpus issued by Judge Dominick
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Supreme Court73 made the question of the legality of those
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post justified acts of disobedience to the law on the
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the necessity of the situation Indeed as we discuss below
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the model is exposed to weighty critiques and the case
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squarely on the shoulders of the public officials who must
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guardians of rights and liberties once the crisis is over
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InterAmerican Court of Human Rights and the United Nations Human
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8 None of the presidential actions can be directed against
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will conform to conventional tests of constitutionality he rejects the
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the security of the state The possibility of extralegal action
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Carl Schmitts dark shadow
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4 Five degrees of separation
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The distinct sphere of national security
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on a wide range of topics188 As one author noted
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us vs them
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pose to us the greater in scope the powers assumed
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The normalization of the exception
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criminal process255 Regardless of the substantive merits of such a
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prepared the Romans for Tiberius If the whole tone of
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Security Act of 2002296 The new department which is composed
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5 International human rights and
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Definitions of emergency
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The International Law Association ILA adopted another definition of
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and emphasis they accentuate the capacity for definitional agreement
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law to accommodate the extraordinary In such states the terms
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powers by the state117 It shows that while accommodation models
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political dilemmas about the rights of persons suspected of the
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willingness of the commission to acknowledge and apply not only
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information received through the 1503 and 1235 procedures202 Despite
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Table 1
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and international of such a declaration The report concludes by
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order of domination also depends on its at least de
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6 Emergencies and humanitarian law
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concerning oversight of emergency situations as offered by international
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was reinstituted Evidently as we have noted above this historical
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imply that some internal conflicts are not appropriately regulated by
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into account the consistent intensity of violence which would account
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ignoring the implications of systematic abuses and rights violations76
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The article contains the lowest threshold of both application and
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the influence of human rights norms In this context the
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7
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of terrorism cannot in and of itself serve as a
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acts of states it has not inquired into the legal
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States will act againstemerging threats before they are fully formed
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The terrorism and law interface
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strict definitional boundaries is to preserve the principle of legality
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plethora of domestic measures that may serve ultimately to undermine
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the realm of ordinary legal regulation143 In this lie some
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Conclusion
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Стр. 237 - Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
Стр. 168 - I did understand, however, that my oath to preserve the Constitution to the best of my ability imposed upon me the duty of preserving, by every indispensable means, that government — that nation, of which that Constitution was the organic law. Was it possible to lose the nation and yet preserve the Constitution...
Стр. 137 - The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.
Стр. 219 - The constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The Executive in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution.
Стр. 139 - Presidents serve us as inspirations, and they also serve us as warnings. They provide bad examples as well as good. The nation, the Supreme Court has said, has "no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.
Стр. 153 - The capacity of the human mind for formulating and solving complex problems is very small compared with the size of the problems whose solution is required for objectively rational behavior in the real world— or even for a reasonable approximation to such objective rationality.
Стр. 141 - ... for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.

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Critique of Security
Mark Neocleous
Недоступно для просмотра - 2008

Об авторе (2006)

Irving Younger Professor of Law and Director of the Center for Legal Studies at the University of Minnesota Law School.

Professor of Law and Director of the Transitional Justice Institute at the University of Ulster.

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