Curriculum Guide · Courses

Professors Thurschwell and Paradis

J.D. Seminar 1039 (cross-listed) | 3 credit hours

States of emergency -- situations in which the sovereign suspends the normal legal order -- have long presented a puzzle to legal scholars. We ordinarily think of the state as the enforcer of law. In the emergency, however, the state acts as if it were independent of and superior to law. Nor are states of emergency limited to dictatorial governments. They arise for democracies as well, during warfare between states, within states (civil war), revolutions, and coups d'etat, as well as governmental responses to pandemics and economic calamities. In each case, the government displaces the normal operation of law in response to a perceived threat to its continued existence and conducts itself extra-legally in order to combat the threat. The specific means of extra-legal control take various forms depending on the situation, but what all of these situations share is an extraordinary assumption of power by the state, beyond the normally governing law. Today the issue of emergency is arising with increasing frequency and in increasingly novel forms, from the Bush Administration's War on Terror to the Arab Spring that is reshaping politics across the Middle East, to name only two recent examples. In this class, we will discuss some of these recent events as well as historical examples, including examples from United States history. We approach the class topics both through conventional legal materials -- we will read statutes and cases, many of which are not typically discussed in this context -- and through the jurisprudential writings of some of the leading theoreticians of the subject.

Our belief, and an overarching theme of the class, is that the phenomenon of emergency raises fundamental issues about the nature of law. In particular, we hope to debate questions about the relationship of law to the sovereign power of the state. Is law identical to or an expression of that power? What are the implications for our belief in the rule of law and the claim that we live under a regime of laws and not of men, if law can be set aside by government actors who, on their own authority, perceive a sufficient risk to society? And if one cannot rely on the law, how can the individual secure themselves against government overreaching?

Conversely, we hope to raise questions about the state of emergency. How long can emergencies last before they cease to be extraordinary? Is an emergency created by an extraordinary situation, or by the state’s declaration that the situation is extraordinary? Is it in fact possible for the state to banish law completely in a state of emergency? In exploring these questions, we hope both to shed light on a neglected corner of the law, and to show that, despite its obscurity, the state of emergency has a great deal to tell us about fundamental questions of jurisprudence.