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When an economic collapse, natural disaster, epidemic outbreak, terrorist attack, or internal crisis puts a country in dire need, governments must rise to the occasion to protect their citizens, sometimes employing the full scope of their powers. How do political systems that limit government control under normal circumstances allow for the discretionary and potentially unlimited power that such emergencies sometimes seem to require? Constitutional systems aim to regulate government behavior through stable and predictable laws, but when their citizens' freedom, security, and stability are threatened by exigencies, often the government must take extraordinary action regardless of whether it has the legal authority to do so. In Extra-Legal Power and Legitimacy: Perspectives on Prerogative, Clement Fatovic and Benjamin A. Kleinerman examine the costs and benefits associated with different ways that governments have wielded extra-legal powers in times of emergency. They survey distinct models of emergency governments and draw diverse and conflicting approaches by joining influential thinkers into conversation with one another. Chapters by eminent scholars illustrate the earliest frameworks of prerogative, analyze American perspectives on executive discretion and extraordinary power, and explore the implications and importance of deliberating over the limitations and proportionality of prerogative power in contemporary liberal democracy. In doing so, they re-introduce into public debate key questions surrounding executive power in contemporary politics.
In Extra-Legal Power and Legitimacy: Perspectives on Prerogative, Clement Fatovic and Benjamin A. Kleinerman examine the costs and benefits associated with how governments have yielded extra-legal powers in times of emergency.
This book examines how the economic survival strategies of former fighters in Liberia can help explain the trajectories of war-to-peace transitions.
This book presents a systematic and comprehensive attempt by legal scholars to conceptualize the theory of emergency powers, combining post-September 11 developments with more general theoretical, historical and comparative perspectives. The authors examine the interface between law and violent crises through history and across jurisdictions.
When an economic collapse, natural disaster, epidemic outbreak, terrorist attack, or internal crisis puts a country in dire need, governments must rise to the occasion to protect their citizens, sometimes employing the full scope of their powers. How do political systems that limit government control under normal circumstances allow for the discretionary and potentially unlimited power that such emergencies sometimes seem to require? Constitutional systems aim to regulate government behavior through stable and predictable laws, but when their citizens' freedom, security, and stability are threatened by exigencies, often the government must take extraordinary action regardless of whether it has the legal authority to do so. In Extra-Legal Power and Legitimacy: Perspectives on Prerogative, Clement Fatovic and Benjamin A. Kleinerman examine the costs and benefits associated with different ways that governments have wielded extra-legal powers in times of emergency. They survey distinct models of emergency governments and draw diverse and conflicting approaches by joining influential thinkers into conversation with one another. Chapters by eminent scholars illustrate the earliest frameworks of prerogative, analyze American perspectives on executive discretion and extraordinary power, and explore the implications and importance of deliberating over the limitations and proportionality of prerogative power in contemporary liberal democracy. In doing so, they re-introduce into public debate key questions surrounding executive power in contemporary politics.
Most modern states turn swiftly to law in an emergency. The global response to the 11 September 2001 attacks on the United States was no exception, and the wave of legislative responses is well documented. Yet there is an ever-present danger, borne out by historical and contemporary events, that even the most well-meaning executive, armed with extraordinary powers, will abuse them. This inevitably leads to another common tendency in an emergency, to invoke law not only to empower the state but also in a bid to constrain it. Can law constrain the emergency state or must the state at times act outside the law when its existence is threatened? If it must act outside the law, is such conduct necessarily fatal to aspirations of legality? This collection of essays - at the intersection of legal, political and social theory and practice - explores law's capacity to constrain state power in times of crisis.
States of Exception in American History brings to light the remarkable number of instances since the Founding in which the protections of the Constitution have been overridden, held in abeyance, or deliberately weakened for certain members of the polity. In the United States, derogations from the rule of law seem to have been a feature of—not a bug in—the constitutional system. The first comprehensive account of the politics of exceptions and emergencies in the history of the United States, this book weaves together historical studies of moments and spaces of exception with conceptual analyses of emergency, the state of exception, sovereignty, and dictatorship. The Civil War, the Great Depression, and the Cold War figure prominently in the essays; so do Francis Lieber, Frederick Douglass, John Dewey, Clinton Rossiter, and others who explored whether it was possible for the United States to survive states of emergency without losing its democratic way. States of Exception combines political theory and the history of political thought with histories of race and political institutions. It is both inspired by and illuminating of the American experience with constitutional rule in the age of terror and Trump.
This book examines the relationship between constituent power and the law, and the place of the former in constitutional history, drawing from constitutional theory beyond the Anglo-American sphere, with new material made available for the first time to English readers.
Carl Schmitt ranks among the most original and controversial political thinkers of the twentieth century. His incisive criticisms of Enlightenment political thought and liberal political practice remain as shocking and significant today as when they first appeared in Weimar Germany. Unavailable in English until now, Legality and Legitimacy was composed in 1932, in the midst of the crisis that would lead to the collapse of the Weimar Republic and only a matter of months before Schmitt’s collaboration with the Nazis. In this important work, Schmitt questions the political viability of liberal constitutionalism, parliamentary government, and the rule of law. Liberal governments, he argues, cannot respond effectively to challenges by radical groups like the Nazis or Communists. Only a presidential regime subject to few, if any, practical limitations can ensure domestic security in a highly pluralistic society. Legality and Legitimacy is sure to provide a compelling reference point in contemporary debates over the challenges facing constitutional democracies today. In addition to Jeffrey Seitzer’s translation of the 1932 text itself, this volume contains his translation of Schmitt’s 1958 commentary on the work, extensive explanatory notes, and an appendix including selected articles of the Weimar constitution. John P. McCormick’s introduction places Legality and Legitimacy in its historical context, clarifies some of the intricacies of the argument, and ultimately contests Schmitt’s claims regarding the inherent weakness of parliamentarism, constitutionalism, and the rule of law.
There has been intense debate in recent times over the legitimacy or otherwise of international law. This book contains fresh perspectives on these questions, offered at an international and interdisciplinary conference hosted by the Max Planck Institute for Comparative Law and International Law. At issue are questions including, for example, whether international law lacks legitimacy in general and whether international law or a part of it has yielded to the facts of power.