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War is undoubtedly a dirty business, usually entailing massive destruction and loss of life on both sides. In an attempt to limit this inevitable death and destruction…
War is undoubtedly a dirty business, usually entailing massive destruction and loss of life on both sides. In an attempt to limit this inevitable death and destruction, philosophers have argued that belligerents must following certain principles in the conduct of warfare; namely, the principles of discrimination (that only legitimate military targets may be attacked) and of proportionality (that the damage done in attacking such targets must not be out of proportion to the military value of the target). These principles have come to be enshrined in International Law through a range of treaties, which are collectively known in military circles as the International Law of Armed Conflict (LOAC).
The essential idea at the heart of Michael Walzer’s supreme emergency argument, or as Brian Orend calls it, the supreme emergency exemption, is that desperate times call for desperate measures. If the situation is dire enough, and the consequences faced are serious enough, then it will be justifiable to act in ways which would normally be prohibited. In concrete terms, what this means is that during a time of war, a state can in some circumstances ignore the usual rules of warfare (i.e. the principles of discrimination and proportionality). Walzer claims this is justified if and only if the following conditions are met: the state is the victim of aggression, the state is about to be militarily defeated, and that the consequences of defeat will be catastrophic (i.e. would include extreme and widespread violations of fundamental human rights). In other words, when faced with a supreme emergency one is justified in engaging in widespread violations of the rights of some people (people to whom one only has a general duty) in order to prevent widespread violations of the rights of others (people to whom one has a specific duty).
In this paper I argue that the ‘rules’ which must be applied in order for widespread rights-violations to be considered justified are actually well understood, and that supreme emergency is not an unusual situation for which new rules must be considered, but simply an important specific example of such a situation. Essentially I argue that one must dirty one’s hands in war, but that there is no need for one’s hands to get any dirtier in a situation of supreme emergency.
This paper provides a novel framework for considering a much-debated question within military ethical fields, using insights from two of the major proponents of contemporary military ethics.
Giorgio Agamben has used the notion of the state of exception to describe the United States’ detention camps in Cuba. Agamben argues that the use of the state of exception…
Giorgio Agamben has used the notion of the state of exception to describe the United States’ detention camps in Cuba. Agamben argues that the use of the state of exception in the U.S. can be traced back to President Lincoln's suspension of the right of habeas corpus during the Civil War. This paper suggests that this argument obscures more relevant legal and political precedents that can be found in U.S. territorial legal history. Moreover, while Agamben's argument obscures conceptual distinctions between a state of emergency and a state of exception, his argument also provides resources that can expose the limits of liberal interpretations of the relationship between the State, the citizen, and the law.
The object of this research is the reconstruction of the existing legal response by European Union states to the phenomenon of immigration. It seeks to analyse the process of conferral of protection.
One main dimension is selected and discussed: the case law of the national courts. The study focuses on the legal status of immigrants resulting from the intervention of these national courts.
The research shows that although the courts have conferred an increasing protection on immigrants, this has not challenged the fundamental principle of the sovereignty of the states to decide, according to their discretionary prerogatives, which immigrants are allowed to enter and stay in their territories. Notwithstanding the differences in the general constitutional and legal structures, the research also shows that the courts of the three countries considered – France, Germany and Spain – have progressively moved towards converging solutions in protecting immigrants.
The research contributes to a better understanding of the different legal orders analysed.
Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and…
Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.
This chapter examines the influence of the Federalist Society for Law and Public Policy on some of the most important Supreme Court decisions of the past three decades…
This chapter examines the influence of the Federalist Society for Law and Public Policy on some of the most important Supreme Court decisions of the past three decades. Mobilizing the epistemic community framework, it demonstrates how network members, acting as amici curiae, litigators, academics, and judges worked to transmit intellectual capital to Supreme Court decision makers in 12 federalism and separation of powers cases decided between 1983 and 2001. It finds that Federalist Society members were most successful in diffusing ideas into Supreme Court opinions in cases where doctrinal distance was greatest; that is, cases where the Supreme Court moved the farthest from its established constitutional framework.
From one angle, abortion law appears to confirm the regime politics account of the Supreme Court; after all, the Reagan/Bush coalition succeeded in significantly…
From one angle, abortion law appears to confirm the regime politics account of the Supreme Court; after all, the Reagan/Bush coalition succeeded in significantly curtailing the constitutional protection of abortion rights. From another angle, however, it is puzzling that the Reagan/Bush Court repeatedly refused to overturn Roe v. Wade. We argue that time and again electoral considerations led Republican elites to back away from a forceful assertion of their agenda for constitutional change. As a result, the justices generally acted within the range of possibilities acceptable to the governing regime but still typically had multiple doctrinal options from which to choose.
The formality of modern law is a constitutive element in its operation, but the “revolt against formalism” and the charge of mechanical jurisprudence are also as old as…
The formality of modern law is a constitutive element in its operation, but the “revolt against formalism” and the charge of mechanical jurisprudence are also as old as the law. This chapter focuses on formalism in legal decision-making in hard cases and assumes that contemporary decision-making in law combines formalistic with nonformalistic expressions as part of its routine operation. The research develops a sensitive multidimensional measure that will be used to evaluate legal texts by examining various vectors of formalism. It begins by exploring diverse jurisprudential cultures of formalism, which have developed mainly in American legal thought. Based on the historical analysis of cultures of formalism, the chapter continues to frame eight claims of formalism that have all been contested in legal writing. It proposes to examine the following parameters, based on these claims: (1) the introduction and framing of the legal question; (2) the use of extralegal arguments; (3) reliance on policy arguments and on legal principles; (4) reference to discretion and choice; (5) the relationship between what is presented as facts and what is presented as norms; (6) preservation of traditional boundaries in law; (7) the use of professional judicial rhetoric; (8) the gap between law in the books and law in action; and (9) judicial stability and institutional deference. Each of these parameters can be used to evaluate the level of formalism in a concrete text. The interplay between diverse evaluations of the same case is a subject for inquiry and contemplation. These parameters can also be redefined as variables for a quantitative content analysis, and legal decisions can be coded accordingly. This will enable an analysis of differences between justices, legal issues, legal jurisdictions, and time frames, as well as the correlation between the various parameters of formalism. The tendency to formalism, according to the analysis here, is never pure and is part of a complex legal culture that usually combines formalistic elements with nonformalistic ones.
This paper challenges and expands commonplace assumptions about problems of time and temporality in emergencies. In traditional emergency powers theory “emergency time” is…
This paper challenges and expands commonplace assumptions about problems of time and temporality in emergencies. In traditional emergency powers theory “emergency time” is predominantly an “exceptional time.” The problem is that there is “no time” and the solution is limited “in time”: exceptional behavior is allowed for a special time only, until the emergency is over, or according to formal sunset clauses. But what is characteristic of many emergencies is not the problem of “no time” but the ways in which time is legally structured and framed to handle them. Using the Israeli High Court of Justice 1999 decision on the use of physical interrogation methods under conditions of necessity, this paper illustrates how legally significant emergency-time structures that lay beyond the problematic of exceptional time, gravely implicate the way that “exceptional measures” are practiced and regularized.