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

Legal Theory, Vol. 16, pp. 161-189, 2010

Osgoode CLPE Research Paper No. 47/2010

31 Pages Posted: 24 Nov 2010 Last revised: 22 Oct 2014

Date Written: November 24, 2010

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

Suggested Citation

Tanguay-Renaud, François, The Intelligibility of Extra-Legal State Action: A General Lesson for Debates on Public Emergencies and Legality (November 24, 2010). Legal Theory, Vol. 16, pp. 161-189, 2010; Osgoode CLPE Research Paper No. 47/2010 . Available at SSRN: https://ssrn.com/abstract=1714624 or http://dx.doi.org/10.2139/ssrn.1714624

François Tanguay-Renaud (Contact Author)

Osgoode Hall Law School, Toronto ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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