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Emergency and Modernity: Contextuali...

Finn, Peter David,

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Emergency and Modernity: Contextualizing the Contemporary Debate /

紀錄類型:	書目-電子資源 : Monograph/item
正題名/作者:	Emergency and Modernity: Contextualizing the Contemporary Debate // Peter David Finn.
作者:	Finn, Peter David,
面頁冊數:	1 electronic resource (234 pages)
附註:	Source: Dissertations Abstracts International, Volume: 84-09, Section: A.
Contained By:	Dissertations Abstracts International84-09A.
標題:	Legal history. -
電子資源:	https://pqdd.sinica.edu.tw/twdaoapp/servlet/advanced?query=30339993
ISBN:	9798374485585

Emergency and Modernity: Contextualizing the Contemporary Debate /
Finn, Peter David,

Emergency and Modernity: Contextualizing the Contemporary Debate /Peter David Finn. - 1 electronic resource (234 pages)

Source: Dissertations Abstracts International, Volume: 84-09, Section: A.

All states are subject to emergency circumstances that may suggest special responses challenging the normal rule of law. The debate between Oren Gross and David Dyzenhaus asks how emergency powers can be best designed and employed to prevent their abuse and 'normalization' - the phenomenon by which the use of exceptional powers leaves persistent traces of their use in a state's normal institutions of government.This dissertation argues that containing normalization on the terms proposed by Dyzenhaus and Gross is unlikely to succeed because ideas about what emergency entails have expanded in the modern age, contributing to this normalization, and that these phenomena have been fuelled by intellectual features of modernity itself that the debate leaves largely unconsidered.The dissertation traces the contribution of this process, beginning with the medieval origins of modern ideas on emergency powers. This is a different point of departure from the current literature, which mostly focusses on classical precedent, and in particular the Roman idea of dictatorship. The dissertation argues that while the classical model is influential, too exclusive a focus on it obscures the precise nature of the change in thinking about emergency powers in the modern period. The medieval distinction between iurisdictio and gubernaculum, or between that part of the activity of government that was restrained by the rule of law, and the functions of government that are limited only by the ruler's responsibility to God, is an important source for the theoretical distinction the dissertation employs between instrumental and non-instrumental law.Instrumental and non-instrumental law represent two ideal types of law. Noninstrumental law is concerned to provide a legal framework for the relations between members of a state, but leaves them free to choose their own purposes. Instrumental law treats law as an instrument of policy and subordinates the members of a state to the pursuit of one or more shared goals. In actual states, legal systems combine elements of both concepts of law. But emergency tends to shift the balance towards the instrumental perspective. War in particular imposes the overriding purpose of securing victory and this tends to be reflected in lasting changes in the law of the state. But ideological and technological factors have also made a significant contribution.The dissertation traces this process in outline in the early modern and medieval periods in relation to the idea of martial law in particular. It then offers a much more detailed analysis of some of the key episodes to do with colonialism, the two World Wars, and the ideological conflict involved in the clash between the Western and the Communist powers after 1945. It shows that the cumulative effect of all these episodes has been to create a more or less permanent and global condition of emergency that has been treated in legal terms in an ever more instrumental manner, liberating the executive to behave in a way unrestrained by considerations of due process.

English

ISBN: 9798374485585Subjects--Topical Terms:

3826749
Legal history.

Emergency and Modernity: Contextualizing the Contemporary Debate /
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