States of Emergency - Centre for Policy Alternatives

other vastly disparate contextual reasons, the Business as Usual
model, for all its libertarian attractiveness, is of limited concern to
our discussion on states of emergency in Sri Lanka.
2.3
Extra‐Legal
Measures
Models
In international relations, but in some domestic jurisdictions as
well, the school of political realism holds that on the fundamental
questions of survival and interests of the State, legal niceties must
give way to realism, in the sense that there should be no
inhibitions on the political action required to ensure the survival,
or secure the interests of the State. 45 This is reLlected in such
maxims as ‘necessity knows no law’, ‘salus
populi
suprema
lex
est’
and ‘inter
 arma
 silent
 leges.’ Needless to say, both at the level of
international relations and law as well as in the domestic sphere,
these notions that sanction arbitrary action and unlimited
discretion are repugnant to the liberal belief in legal order and
political morality.
However, in the Extra‐Legal Measures models of emergency
powers, it is not necessarily the case that they always sanction a
lawless recourse to arbitrary power in times of crisis. Indeed, in
the model of extra‐legal measures that Gross and Ní Aoláin
construct as a case for ‘rule departures’ based on principles drawn
45
See for e.g. Jack Donnelly (2000) Realism
and
International
Relations
(Cambridge: Cambridge UP); Carl J. Friedrich (1957) Constitutional
Reason
of
State:
The
Survival
of
the
Constitutional
Order
(Providence:
Brown UP): p.14
51