LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE by OREN GROSS AND FIONNUALA NÍ AOLÁIN
| Date | 01 December 2007 |
| DOI | http://doi.org/10.1111/j.1467-6478.2007.00408_1.x |
| Published date | 01 December 2007 |
| Author | Adrian Hunt |
LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND
PRACTICE by OREN GROSS AND FIONNUALA NI
ÂAOLA
ÂIN
(Cambridge: Cambridge University Press, 2006, 518 pp., £55.00 (hbk),
£27.99 (pbk))
When states face situations of `emergency' or `crisis', political actors are
presented with practical questions concerning which measures to take in order
to overcome and address the situation. In states where the exercise of public
power is premised upon adherence to some version of the liberal-democratic
conception of the `rule of law', such situations also present a range of legal
issues about the extent to which official responses are facilitated by existing
legal measures concerning the exercise of public power and whether the
exercise of powers in such situations is subject to mechanisms of control and
legitimation such that they can be reconciled with notions of the rule of law.
Where domestic constitutions and legal regimes purport to enable and regulate
the exercise of special powers in a crisis, difficulties arise concerning the
potential for `constitutionally permitted' emergency powers to become a
conventional and accepted part of the constitutional and legal landscape such
that they distort or threaten the pre-eminent position and substantive content of
`ordinary' constitutional principles. Furthermore questions arise concerning
the mechanisms for regulation of the exercise of special powers and, in
particular, the relationship between and the roles of the executive, legislative,
and judicial branches of government in relation to them. On the other hand,
failure to provide any constitutionally grounded mechanisms which
contemplate the exercise and control of such special powers presents the
possibility of the exercise of special powers in times of crisis outside of the
legal realm, and as such, incapable of being controlled or legitimated in
accordance with any existing or possible legal or political mechanisms
consistent with the rule of law ideal. Along with these difficulties, emergencies
present political and legal actors with the problem of reconciling their response
with obligations derived or enforced through international law mechanisms,
such as international human rights law instruments. Finally, there are issues
associated with distinguishing upheavals or conflict which merely constitute an
`emergency' and those where the nature of conflict constitutes a `wartime'
situation (whether inter-state or internal) such that international humanitarian
law would provide the primary legal regulatory framework.
In Law in Times of Crisis, Oren Gross and Fionnuala NõÂ AolaÂin address
these issues in a comprehensive work which, though not likely to be the last
word on these matters, will certainly be an indispensable point of reference
in future writing and thinking about them. Of course these issues have
attracted particular attention recently as a consequence of actions taken as
part of the so-called `war on terror.' Gross and NõÂ AolaÂin state that:
prior to al Qaeda's attacks in New York, Washington, and Pennsylvania,
violent crises and emergencies and their implications for legal systems had not
attracted much attention in legal scholarship (p. 2).
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ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
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