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The political constitution of emergency powers: parliamentary and separation-of-powers regulation

Published online by Cambridge University Press:  07 March 2008

Mark Tushnet
Mark Tushnet*
Affiliation:
William Nelson Cromwell Professor of Law, Harvard Law School1
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Abstract

Constitutional democracies control the exercise of emergency powers through law and through politics. Although many believe that legal controls on the exercise of such powers are essential, examining the structure and history of political controls on emergency powers demonstrates that there are conditions under which such controls can be more effective than legal controls, even in systems committed to parliamentary supremacy. Political controls can sometimes be deployed effectively more quickly than legal ones can. Even in settings seemingly quite unfavourable to the development of constraints on the flow of power to executive government during emergencies, political controls can work, and sometimes might work in real time more effectively than judicial controls do in real time.

Type
Research Article
Information
International Journal of Law in Context , Volume 3 , Issue 4 , December 2007 , pp. 275 - 288
Copyright
Copyright © Cambridge University Press 2008

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References

Ackerman, Bruce (2000) ‘The New Separation of Powers’, Harvard Law Review 113: 633.Google Scholar
Benvenisti, Eyal (2007) ‘United We Stand: National Courts Reviewing Counterterrorism Measures’ in Bianchi, Andrea and Keller, Alexis (eds) Democracy, Separation of Powers, and the Fight Against Terrorism (forthcoming; available at http://ssrn.com/abstract=965638).Google Scholar
David, Fergal F. (2006) ‘Extra-Constitutionalism, the Human Rights Act and the ‘Labour Rebels’: Applying Prof. Tushnet’s Theories in the UK’, 4Web JCLI (available at http://webjcli.ncl.ac.uk/2006/issue4/davis4.html).Google Scholar
Donohue, Laura K. (2001) Counter-terrorist Law and Emergency Powers in the United Kingdom 1922–2000. Dublin: Irish Academic Press.Google Scholar
Eaves, John (1957) Emergency Powers and the Parliamentary Watchdog: Parliament and the Executive in Great Britain, 1939–1951. London: Hansard Society for Parliamentary Government.Google Scholar
Finn, John E. (1991) Constitutions in Crisis: Political Violence and the Rule of Law. New York: Oxford University PressGoogle Scholar
Freeman, Michael (2003) Freedom or Security: The Consequences for Democracies Using Emergency Powers to Fight Terror Westport, Conn: Praeger.Google Scholar
Garnett, J. C. (1989) ‘Emergency Powers in Northern Ireland’ in Leng, Shao-Chuan (ed.) Coping with Crises: How Governments Deal with Emergencies. Lanham, Md: University Press of America.Google Scholar
Golden, Tim (2006) ‘For Guantanamo Review Boards, Limits Abound’, New York Times, 31 December, § 1, p. 1.Google Scholar
Hiebert, Janet L. (2005) ‘Rights-Vetting in New Zealand and Canada: Similar Idea, Different Outcomes’, New Zealand Journal of Public and International Law 3: 63.Google Scholar
Issacharoff, Samuel (2007) ‘Fragile Democracies’, Harvard Law Review 120: 1405.Google Scholar
Iyer, Venkat, (2000) States of Emergency: The Indian Experience New Delhi: Butterworths.Google Scholar
Kaarbo, Juliet (1996) ‘Power and Influence in Foreign Policy Decision Making: The Role of Junior Coalition Partners in German and Israeli Foreign Policy’, International Studies Quarterly 40: 501.Google Scholar
Katyal, Neal Kumar (2006) ‘Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within’, Yale Law Journal 115: 2314.Google Scholar
Posner, Eric A. and Vermeule, Adrian (2007) Terror in the Balance: Security, Liberty, and the Courts. New York: Oxford University Press.CrossRefGoogle Scholar
Posner, Richard (2006) Not a Suicide Pact: The Constituion In a Time of National Emergency. New York: Oxford University Press.Google Scholar
Rehnquist, William H. (1998) All the Laws But One: Civil Liberties in Wartime. New York: Knopf.Google Scholar
Tushnet, Mark (2007) ‘The Political Constitution of Emergency Powers: Some Lessons from Hamdan’, Minnesota Law Review 91: 1451.Google Scholar