The Law of Emergency and Reason of State

Abstract

This paper examines the role of human rights in political emergencies. It introduces the concept of reason of state as an alternative to theories of emergency powers that are based on either state prerogative or liberal legalism. It argues that state prerogative and liberal legalism suffer from a common defect: both are premised on a dynamic of norm and exception and thus are poorly equipped to deal with the ‘pseudo-emergencies’ that dominate state practice today. Reason of state better illuminates ongoing legal and political dynamics by focusing on the state’s role as custos – a guardian or protector of the regime of law – and the pressures such a claim place on legal order. Viewed from this perspective, human rights adjudication can be seen as a mechanism for normalizing and constitutionalizing reason of state by subjecting its exercise to public deliberation, contestation, and justification.