Introduction

Let us consider the Gross–Dyzenhaus debate in light of recent controversy over applying the laws of war in the Bush administration's war on terror. David Dyzenhaus argues against having ‘black holes’, as he calls it, in the law. He criticises Oren Gross, who says that there are certain situations where officialdom may have to step outside the law – such as where an official commits torture under the now-famous ‘ticking bomb’ scenario. In such cases, the official may later be embraced within the law, through an amnesty, pardon, legislative indemnity and so on. The classic example is the official who might have no choice but to commit torture, even where that violates the law but who leaves her treatment or punishment for society to judge as it sees fit in the aftermath. To be sure, Gross is not saying what, for example, the Bush administration was saying at one point – that officials can torture with legal impunity. To the contrary, Gross argues for his model partly because the law should never create an exception for torture. He argues, counter-intuitively perhaps, that we aid legality – or the law's ability to constrain – by forcing officials to step outside the law.

Dyzenhaus fears that Gross's extra-legal measures model poses no legal and constitutional constraint upon public officials at all. Once we countenance extra-legal conduct, the law's constraints go straight out the window.