The ordinary law of emergencies and democratic derogation from rights

Abstract

Introduction The post-9/11 scholarly debate on emergency powers as represented by the debate between David Dyzenhaus and Oren Gross over legality and extra-legal powers has defined the concept of emergency narrowly in relation to the detention or disruption of suspected terrorists or enemies. This understanding of emergencies is dramatically under-inclusive. It ignores genuine emergencies such as Hurricane Katrina, the Asian tsunami and pandemics, as well as the need for recovery after particularly disruptive acts of terrorism. Although cloaked in the rhetorical urgency of emergencies, the post-9/11 debate about emergencies has been about the treatment of the rights of suspected terrorists, not about how a state will respond to the full range of emergencies that modern society will face. Although I am sceptical about whether the post-9/11 debate is really about emergencies, I am not sceptical about the fact that modern society will confront genuine emergencies. Such emergencies will require the state to engage in extraordinary measures that may have adverse effects on rights. Modern states have recognised the reality of emergencies and have enacted framework statutes to enable the state to deal with emergencies. To this end, we should be concerned about the ordinary law that governs all emergencies. In contrast to the mountains of work that have been devoted to anti-terrorism measures, emergency laws in Canada, the United Kingdom and the United States have attracted comparatively scant scholarly attention.

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