Table of Contents
Acknowledgements vii
Introduction xiii
1 The Ideal State of Emergency 1
Introduction 1
The 'Ideal' Emergency 2
The Dictatorship of the Roman Republic 3
The Function and Powers of tire Dictator 4
Controls on the Roman Dictatorship 7
Unleashing the Tyranny of Dictatorship 10
The 'Ideal' Emergency in Legal Systems Today 11
Defining the Phenomenon 12
International Human Rights Law 12
Constitutional Definitions 15
The Emergency Response 19
The Ideal Type Emergency Paradigm 21
The Existence of a Serious Threat to the State Recognised by an Organ of the State 22
A Reactive or Defensive Mechanism 23
The Consolidation of Powers in a Branch/Office of Government 24
The Enactment of Exceptional Measures that would not have been Permitted in a State of Normalcy 25
The Necessity of the Measures Enacted 26
The Separation of Normalcy and Emergency 27
Conclusion 30
2 The Permanent State of Emergency 33
Introduction 33
The Permanent State of Emergency: Separating Normalcy from Emergency 34
Individual Separation: Distinguishing Friend from Enemy 35
Geographical Separation 37
Legal Manifestations of Geographical Distinctions 43
Temporal Separation: The Permanent State of Emergency 45
The Fall of the Emergency Paradigm? 48
Is the Emergency Paradigm Obsolete? Focusing on the Decision-Maker 48
Framing the Emergency: Focusing on the Decision-Makers 50
Democratic Decision-Making and States of Emergency 52
The Broadening of Emergency Powers: Expanding the 'Penumbra' 54
Terrorism as a Permanent Emergency 54
Economic Emergencies 57
De Facto Emergencies 61
Conclusion 62
3 Permanent States of Emergency and Constituent Power 65
Introduction 65
Power beyond Law? The State of Emergency and the Legal Order 66
The State of Emergency and the Pure Theory of Law 68
Power beyond the Law: Rejecting the Identity Thesis? 69
Carl Schmitt and the State of Exception 71
The Concept of the Political: The Friend-Enemy Distinction 71
Schmitt's Critique of Liberalism: The State of Exception 73
Carl Schmitt and the State of Exception 74
Confronting the State of Exception: Preserving the Identity Thesis 77
Conflicts between Norms: The Hierarchy of Norms 78
Conflicts between Constitutional Norms 80
Unconstitutional Constitutional Norms: The Case for Judicial Review 82
The Permanent State of Emergency as an Unconstitutional Constitutional Amendment 85
Constitutional Desuetude 86
The Permanent State of Emergency and the Validity and Effectiveness of Constitutional Norms 88
Permanent States of Emergency and the Repudiation of Constitutional Norms 90
The Permanent State of Emergency as a Claim for the Constituent Power 91
Constituent Power and the State of Emergency: The Case of Ireland 95
Conclusion 98
4 Permanent States of Emergency and Legal Black Holes 99
Introduction 99
Legal Black Holes 100
National Security and Judicial Review 105
From Administrative Review to Constitutional Review 110
The Constitutional Validity of Legislation 111
Political Questions and Judicial Review 113
Sceptical Views of Judicial Review and the Rule of Law 116
Legal Black Holes and Zones Beyond Law 119
Zones Beyond Law v Legal Black Holes: The Irish Example 120
The Non-Justiciability of Article 28.3.3° and Constituent Power 123
Conclusions 125
5 Permanent States of Emergency and Legal Grey Holes 127
Introduction 127
Legal Grey Holes 127
Emergency Powers and Legal Grey Holes in Practice 130
Ireland 130
Article 15 ECHR and the Meaning of 'Public Emergency Threatening the Life of the Nation' 132
The United Kingdom 134
Judicial Push Back? 136
Fortifying the Rule of Law? Human Rights and Legal Grey Holes 139
National Security and Human Rights 143
Legal Grey Holes and Constituent Power 147
The Two Limbs of the Schmittian Challenge 148
Beyond Human Rights Norms 152
Ireland: Beyond the Security-Liberty Divide 152
Article 48 of the Weimar Constitution: Beyond the Security-Liberty Divide 155
Beyond National Security Emergencies 157
Conclusions 158
6 Alternatives to Constitutional States of Emergency 161
Introduction 161
Why Emergency? The Problem with 'Business as Usual' 161
'Business as Usual' and the 'Shielding Effect' of Emergency Powers 164
The Deepening of Emergency Powers: Legislative Accommodation 165
Legislative Accommodation: United States 166
Legislative Accommodation: United Kingdom 167
The'Deepening' Effect of Legislative Accommodation 171
Permanent States of Emergency and Parliamentary Sovereignty 174
Prerogative Powers in a State of Emergency 175
Common Law Constitutionalism and Parliamentary Sovereignty 176
Common Law Constitutionalism and Emergency Powers 179
Parliamentary Sovereignty and Constituent Power 182
Relational Constituent Power 186
Parliamentary Sovereignty and Constituent Power: Conclusions 187
The Extra-Legal Measures Model 189
ELM and the Source of Legal Authority 191
ELM and the Authority of Affirmation 192
Extra-Legal Measures: Conclusions 193
Conclusions 194
7 Resisting the Permanent State of Emergency 197
Introduction 197
Reviewing the Existence of a State of Emergency 198
Ensuring Robust Review 198
Independent Reviewers in a Culture of Justification 202
Engineering Constitutions against Permanent States of Emergency 204
Legislative Scrutiny of Emergency Powers: Bruce Ackerman's Super-Majoritarian Escalator 204
Time-Limits and Sunset Clauses 205
'Discrete Conditions': The 'Shielding Effect' of Emergency Powers 206
Limited Emergency Powers 207
Proportionality as a Controlling Factor 208
The Transformative Nature of Permanent States of Emergency 209
Permanent States of Emergency and Constitutional Moments 211
Final Conclusions 213
Index 215
