This page intentionally left blank THE CONSTITUTION OF LAW Professor Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial deci- sions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of- law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive. David Dyzenhaus is Professor of Law and Philosophy at the University of Toronto. He is a Fellow of the Royal Society of Canada, and has worked in South Africa, the United Kingdom, Germany and New Zealand. THE CONSTITUTION OF LAW Legality in a Time of Emergency DAVID DYZENHAUS cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK First published in print format isbn-13 978-0-521-86075-8 isbn-13 978-0-521-67795-0 isbn-13 978-0-511-24955-6 © David Dyzenhaus 2006 2006 Informationonthistitle:www.cambrid g e.or g /9780521860758 This publication is in copyright. 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Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback p a p erback p a p erback eBook (EBL) eBook (EBL) hardback For Alexander and Sophie CONTENTS Acknowledgements page ix Ta b l e o f cases xi Ta b l e o f statutes xiv Introduction 1 1Legality in a time of emergency 17 Introduction 17 Judges and the politics of the rule of law 20 Carl Schmitt’s challenge 35 Parliamentary or judicial supremacy? 54 The moral resources of law 60 2Constituting the legislature 66 Constitutional positivism 66 The Communist Party case 72 Canada’s common law bill of rights 87 Anxiety about judicial review of legislation 89 Disobeying Parliament 102 Evisceration 107 Reconciliation 108 Deference 118 3Taking the administrative state seriously 121 Recognizing rationality 121 Maintaining the rule of law 129 Emerging from the shadows 149 In the black hole 160 vii viii contents 4The unity of public law 174 Introduction 174 The Belmarsh decision 175 Refuting dualism 190 Black holes and the rule of law 196 The ruleofgoodlaw 220 Bibliography 234 Index 242 [...]... has no law, as the saying goes; and we will see that the fascist legal theorist Carl Schmitt challenged liberal theories of the rule of law on the basis that even liberals have to recognize that the rule of law has no application in a state of emergency I will respond to that challenge in arguing that judges have a constitutional duty to uphold the rule of law even, perhaps especially, in the face of. .. be somewhat misleading, except in transitional societies These are societies which are trying to develop the rule of law as part of a more general task of escaping from an authoritarian past and in their regard it makes complete sense to talk about a choice to have the rule of law In contrast, in societies that are already governed by the rule of law, any attempt to articulate what that rule involves... an international and domestic discourse of human rights in our thinking about law Indeed, the relationship between international law and domestic law is a central theme of this book It arises because of the willingness of some judges to draw inspiration from international human rights law for their understanding of the rule of law, a willingness which is matched by the hostility of others to this interpretative... rule by law and the rule of law, where the former means the use of law as a brute instrument to achieve the ends of those with political power while the latter means the constraints which normative conceptions of the rule of law place on the instrumental use of law. 3 The contributors argue that the normative conception of jurists is a ‘figment of their imagination’.4 Law, they say, is not an autonomous... are inherent in the constitution of law itself So, at another level, my claim is about law or legal order, including international legal order, not just about the values inherent in the law of a particular legal order or family of legal orders Moreover, I want to claim that only by understanding the rule of law and its limits can we understand the nature of law With Sir Hersch Lauterpacht, but perhaps... relationship in terms of what they share and not in terms of what separates them, since their separation is in the service of a common set of principles The powers are all involved in the rule -of- law project They are committed to realizing principles that are constitutional or fundamental, but which do not depend for their authority on the fact that they have been formally enacted In order to count as law or as... central problem of jurisprudence’ Hersch Lauterpacht, The Function of Law in the International Community (Oxford: Clarendon Press, 1933), p vii 8 introduction of its laws, including its constitutional law Legal orders will also differ from each other, sometimes quite dramatically, in the way they arrange the institutions that are principally involved in bringing the principles of the rule of law to realization... realization In fact, the Commonwealth constitution is just one example of institutional arrangement But what the model shows is that the idea of legal order, of government in accordance with the rule of law, is an aspirational ideal,7 an attempt to make the law serve justice, which has the result that judges legitimately understand the positive law in terms of that inspiration Their interpretative duty then... emergency Introduction This book explores the idea that there is a constitution of law, exemplified in the common law constitution of Commonwealth countries It looks mainly to cases decided in the United Kingdom, Australia, and Canada in order to show that law provides a moral resource that can inform a rule -of- law project capable of responding to situations which place legal and political order under great... legitimate So it is in exploring the idea that constitutional constraints can be both genuinely binding and yet overridable that we begin to understand what is involved in the political choice to rule by or through law The claim that rule by law presupposes the rule of law is controversial For example, the central theme of a recent collection of essays on democracy and the rule of law is the distinction . Society of Canada, and has worked in South Africa, the United Kingdom, Germany and New Zealand. THE CONSTITUTION OF LAW Legality in a Time of Emergency DAVID. looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law