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Extra-Legal Power and LegitimacyPerspectives on Prerogative$
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Clement Fatovic and Benjamin A. Kleinerman

Print publication date: 2013

Print ISBN-13: 9780199965533

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199965533.001.0001

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Filling the Void: Democratic Deliberation and the Legitimization of Extra-Legal Action

Filling the Void: Democratic Deliberation and the Legitimization of Extra-Legal Action

Chapter:
(p.169) Chapter 8 Filling the Void: Democratic Deliberation and the Legitimization of Extra-Legal Action
Source:
Extra-Legal Power and Legitimacy
Author(s):

Clement Fatovic

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199965533.003.0008

This chapter argues that deliberation can and should be used to assess the expediency and the legitimacy of all emergency measures, legal or extra-legal. Deliberation provides the only way to legitimize the use of extra-legal measures consistent with the principles and values that are used to legitimize the law itself, without requiring any prior commitment to a narrow set of constitutional or political ideas. A deliberative model of emergency can accommodate the views of Locke or Lincoln, Hamilton or Jefferson, because it does not require a prior commitment to ideas that are particular to them or anyone else. A deliberative model of emergency would not necessarily identify in advance what justifies or restricts the use of emergency measures, but it could explain how and why their use could be justified or restricted.

Keywords:   deliberation, democracy, emergency powers, emergency measures

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