Jurisprudence for Emergencies

Stephen Holmes, In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror, 97 Calif. L. Rev. 301 (2009), available at SSRN. Martin Krygier Many thinkers have combined a high regard for the rule of law with a negative view of it. This is only an apparent, verbal, paradox. For it is common to understand the rule of law as good, less for what it enables and creates than for what it might prevent. On this interpretation, the point of law is to block and limit the possibility of unruly power, to curb and restrain power's exercise. This is not a new view. Recall Bracton's revealing metaphor from the thirteenth century, of law as 'the bridle of power,' by which a just king, as distinct from a 'tyrant,' must 'temper his power.' The characteristics most associated with law changed over the centuries, particularly moving from custom to legislation, and with those changes went different conceptions of what the law needed to be like to do its proper work. However, the identification of the rule of law's purpose with constraint endured. And it still does. Where the rule of law is commended, it is typically for what it rules out rather than what it rules in; what it restrains and prevents, rather than what it generates and encourages to flourish. That is not the only way of viewing the rule of law, however, and arguably not the best. Jeremy Waldron has recently criticized views of constitutionalism according to which "[e]verything is seen through the lens of restraint and limitation,"1 and has insisted on the empowering role and potential of constitutional provisions. Similar points might be made about the rule of law. Stephen Holmes has long stressed the empowering consequences of law; what, in contrast to the more common negative conception, he calls "positive constitutionalism"2. Appropriately configured laws, on this view, provide "enabling constraints."3. Continue reading "Jurisprudence for Emergencies"

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