States of Emergency - Centre for Policy Alternatives

of things that what liberals, pretensions notwithstanding, assume
to be the rule of law in normal times is suspended wholly or in
part – it becomes apparent the challenge remains largely
unanswered. On the contrary, Dyzenhaus in fact shows how, “…
Schmitt’s challenge is supported by much of the history of the way
in which judges in the Commonwealth have failed to impose the
rule of law during times of emergency…[and how]…in the United
States, academic debate about how best to respond to
emergencies stand to support that challenge.” 73
From this critical viewpoint, Dyzenhaus goes on to present a
powerful argument about a substantive notion of the rule of law
that utilises ‘the moral resources of the law’ and which exists
within the liberal legal order independently of written
constitutional instruments, that can meet Schmitt’s challenge.
What is important to note here is that Dyzenhaus’s critique of the
inability of the rule of law to meet Schmitt’s challenge even in
jurisdictions with comparatively entrenched liberal democratic
cultures, should give Sri Lankans pause in thinking about this
problem. It is theoretically questionable to criticise the behaviour
of the State by reference to ideals such as human rights and the
rule of law, without Lirst understanding the full meaning and reach
of the analytical ideal. Dyzenhaus indicates how this might be
done, in a way that answers Schmitt’s challenge. On the other
hand, Schmitt’s conception of the exception gives us the
conceptual tools, adapted and appropriately extrapolated to local
experience, to understand the behaviour of the Sri Lankan State
from an analytical perspective that is different from the familiar
liberal critique.
73
Dyzenhaus (2006), op cit., p.16
62