States of Emergency - Centre for Policy Alternatives

from Jewish law, 46 Locke’s theory of the executive prerogative, 47
Dicey’s ‘spirit of law,’ 48 and the Weberian ideal‐type, 49 inherent
conceptual requirements of institutional morality and legitimation
bring the argument for extra‐legal emergency measures rather
closer to liberal democratic imperatives than some models of
accommodation, in particular the theory of constitutional
necessity. The doctrine of constitutional necessity for validating
emergency measures is borne out of vague, inadequate or absent
constitutional provision for emergency powers, with the result
that necessity has to be recast as an independent source of
constitutional law in general and emergency powers in
particular. 50
In the extra‐legal measures model as conceptualised by Gross and
Ní Aoláin, it is contemplated that “…public ofLicials may act extralegally
when they believe that such action is necessary for
protecting the nation and the public in the face of calamity,
provided that they openly and publicly acknowledge the nature of
their actions.” 51 The aim is to “…preserve the long‐term relevance
of, and obedience to, legal principles, rules and norms. Arguably,
going outside the law in appropriate cases may preserve, rather
46
Gross and Ní Aoláin: pp.113‐119
47
Ibid, pp.119‐130; see also Mark Goldie (Ed.) (1994) John Locke, Two
Treatises
of
Government
(London: Tuttle Publishing): ‘Introduction
to
Two
Treatises
of
Government’ by Mark Goldie
48
Gross and Ní Aoláin: pp.130‐132; see also Dicey (1982), op cit., p.273
49
Gross and Ní Aoláin: pp.132‐134; see also Max Weber (1946) ‘Politics
as
Vocation’ in H.H. Gerth & C. Wright Mills (Eds. & Trans.) (1946) From
Max
Weber:
Essays
in
Sociology (New York: Oxford UP): p.77
50
Gross and Ní Aoláin: Ch.3
51
Gross and Ní Aoláin: p.112
52