Book Review: The Constitution of Law: Legality in a Time of Emergency by David Dyzenhaus (New York: Cambridge University Press, 2006). 250 Pages.
17 Pages Posted: 8 Apr 2008
The terrorist attacks on September 11, 2001 and the ensuing war on terror has brought to the fore a number of issues that were not previously centre stage in legal discourse. The question about the limits of the rule of law during times of crisis is one such issue. David Dyzenhaus's new book explores this very issue and raises a number of interesting and fresh arguments against those who contend that extraordinary times demand extraordinary powers that enhance legislative or executive authority at the expense of the rule of law, rights and judicial review. Much of the debate and prescriptive recommendations we see in recent scholarship on national security are framed within the broader realm of the state of exception or state of emergency. The normalcy-rule, emergency-exception paradigm has been adopted as normatively desirable by most of the legal and political thinkers who have considered the subject of emergencies and emergency powers. The essential dilemma that these theorists are attempting to deal with is: should a democracy that is confronted with a serious existentialist terrorist threat respond with countermeasures which may or may not be effective but challenge fundamental principles of the democratic and liberal order? There is, of course, no better way to explore these controversial issues than by setting out to answer Carl Schmitt's challenge to liberal legal theory, which is essentially that the claim that a response to an emergency situation has in the nature of things to be partly or even wholly exempted from the requirements that we associate with the rule of law in normal times. In this book and some of his other work, Dyzenhaus has attempted to respond to Schmitt as well as to those who fall short in their own attempts to defend liberal legal theory from Schmitt's attack. Overall, Dyzenhaus's volume is a wonderful addition to the growing literature responding to Schmitt's challenge and to those who argue that the rule of law is optional for liberal democracies in times of emergencies. As any good book does, it raises as many good questions as it attempts to answer.
Keywords: Rule of law, state of exception, emergency, Schmitt, Gross, Sunstein, Ackerman, Locke, Rousseau, 9/11, terrorism, constitution, constitutional law, September 11, Agamben, liberalism, national security, Dworkin, Fuller, human rights, international law, Kelsen, Dicey, Cole, Liberty, Torture
JEL Classification: K10, K19, K33
Suggested Citation: Suggested Citation