The Intelligibility of Extra-Legal State Action: A General Lesson for Debates on Public Emergencies and Legality

Abstract

This is the penultimate draft of an article to be published in Legal Theory. Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Keywords: Jurisprudence, legality, extralegal, state, state action, emergencies, duty-imposing rules, power-conferring rules, Hans Kelsen, David Dyzenhaus, Philip Pettit

JEL Classification: K39