This dissertation explores conceptual, normative, and institutional dimensions of the emergency problematic and defends judicial participation in emergency governance. I develop my arguments on the basis of Posner and Vermeule’s discussion in their book Terror in the Balance. I reject their institutional account of emergency governance captured in their deference thesis by showing its incompatibility with fundamental liberal democratic commitments. As I argue, Posner and Vermeule’s call for across-the-board judicial deference to the executive during emergencies is unwarranted in a number of cases, most notably those involving conflicts of constitutional rights. I also reject Posner and Vermeule’s account of emergency policymaking captured in their tradeoff thesis by showing that it does not provide a suitable criterion by means of which the legitimacy of emergency policies could be determined. My arguments against the tradeoff and deference theses are based in part on my critique of Posner and Vermeule’s conception of emergency situations. In fleshing out my conception of emergency, I present and defend a methodological approach to studying the emergency problematic and offer an extensive discussion of exceptionality associated with emergencies. My conclusion is that it is necessary to take in account liberal democratic commitments in the process of emergency policymaking and that judicial review of the executive during periods of emergency is conducive to legitimate emergency governance. / Thesis / Doctor of Philosophy (PhD) / Some national security crises pose serious challenges to western liberal democracies. On the one hand, because such crises threaten individual lives and the welfare of the political community, there is a strong case in favor of demanding that the government do everything in its power to quash such threats by any means necessary. On the other hand, a number of constitutional commitments seem to prevent liberal democracies from using some means in addressing national security crises. In particular, emergency measures such as coercive interrogation and indefinite detention seem to undermine a number of values and commitments that are fundamental to liberal democratic regimes. In addition, there is a controversy surrounding the role of the judiciary during emergencies. Should judges review executive action to ensure its legitimacy during emergencies or should the executive be the final authority on the legitimacy of its policies? My dissertation develops answers to these questions. I begin by exploring conceptual issues surrounding emergencies. On the basis of this exploration, I provide an account of the role of fundamental liberal democratic commitments in the project of emergency governance and argue in favor of judicial participation in governing liberal democratic communities during periods of emergency.
| Identifer | oai:union.ndltd.org:mcmaster.ca/oai:macsphere.mcmaster.ca:11375/23105 |
| Date | January 2017 |
| Creators | Leonov, Max |
| Contributors | Waluchow, Wil, Philosophy |
| Source Sets | McMaster University |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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