Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order

One curious feature of states of emergency is that they are brought into being by law. Law is thus used to suspend its own operation. Carl Schmitt thought that this fact is evidence of a contradiction at the heart of liberal theories of the rule of law. Liberalism aspires to banish the state of emergency or exception from the legal order because it wants a world where all political authority is subject to law; A state of emergency is a lawless void, a legal black hole, in which the state acts unconstrained by law. Dicey seems straightforwardly to deny that the sovereign has the authority to use law to suspend the law. My argument is that Dicey responded to both limbs of Schmitt's challenge. Not only is it the case that it is for the court to decide whether the government has a justified claim that there is an emergency--the first limb-but the courts must assess whether the actual responses to the emergency are legal--the second limb. I also argue that Dicey's response is more powerful because it is made within the context of a common law legal order, one in which he acknowledges that an explicit statute can legalize both immorality and illegality. One needs to maintain Hans Kelsen's Identity Thesis, that the state is totally constituted by law. When a political entity acts outside of the law, its acts can no longer be attributed to the state and so they have no authority. Dicey, on my understanding, subscribes to the same thesis. I argue, however, that in order to provide a workable version of the Identity Thesis, it is important to depart in some significant respects from Dicey. Judges are not always required be the principal guardians of the rule of law. Emergencies might require that Parliament or the executive play the lead role. The rule of law project does not require allegiance to a rigid doctrine of the separation of powers in which judges are the exclusive guardians of the rule of law. Nevertheless, judges will always have some role in ensuring that the rule of law is maintained even when the legislature and the executive are in fact cooperating in the project. Judges also have an important role in calling public attention to a situation in which such cooperation wanes or ceases. It is in seeing that judges are but part of the rule of law project that one can begin to appreciate the paradox that arises when rule by law, rule through a statute, is used to do away with the rule of law, to create a legal black hole. I claim that there is a contradiction in the idea of legal black hole. In other words, one cannot have rule by law without the rule of law. But precisely because I want to argue that judges are but part of the rule of law project, I also am not committed to the conclusion that judges are always entitled to resist statutes that create legal black holes. Whether they are so entitled will depend on the constitutional structure of their legal order. But whatever that structure, they are under a duty to uphold the rule of law. Even if they are not entitled to invalidate a statute that creates a legal black hole, it is their duty to state that the legislature has made a decision to govern arbitrarily rather than through the rule of law.

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