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12 - Necessity, torture and the rule of law

Published online by Cambridge University Press:  10 August 2009

Victor V. Ramraj
Affiliation:
National University of Singapore
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Summary

Not every aspect of the debate over regulating states of emergency is especially controversial. There is widespread agreement, for example, that the scope of executive power has grown in recent years, most notably in the United States of America. Constitutional scholars also generally concur that, at least in ordinary times, this trend is undesirable. The debate becomes more heated in the context of emergencies. Even here, however, many commentators accept that officials will sometimes need to do acts that are not permitted under the ‘ordinary’ law. What they disagree about is how to allow for them.

Various solutions have been advocated. In what follows, I will note just four. The first, and most extreme, possibility is for the legislature to create a legal ‘black hole’, within which officials have unfettered power to act. At the opposite end of the spectrum is to do nothing, leaving the actions of each official to be governed and judged according to the resources of the ordinary law. Third, somewhere between these options, one might not change the operative law but instead create a mechanism by which a retrospective indemnity or validation, may be conferred upon officials who perform otherwise unlawful actions in an emergency: one version of this proposal is the extra-legal measures (ELM) model advocated by Oren Gross. The fourth alternative is to create a specialist regime of administrative law, operative during a state of emergency, which governs actions taken by officials within the scope of the regime; this prospect has been explored by David Dyzenhaus.

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Publisher: Cambridge University Press
Print publication year: 2008

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