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The Limits of Human Rights$
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Bardo Fassbender and Knut Traisbach

Print publication date: 2019

Print ISBN-13: 9780198824756

Published to Oxford Scholarship Online: January 2020

DOI: 10.1093/oso/9780198824756.001.0001

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Emergencies and Human Rights

Emergencies and Human Rights

A Hobbesian Analysis

Chapter:
(p.89) 5 Emergencies and Human Rights
Source:
The Limits of Human Rights
Author(s):

David Dyzenhaus

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198824756.003.0007

‘May the safety of the people be the supreme law!’ Cicero’s slogan is invoked to justify the claim that during a state of emergency, the political sovereign may do whatever in his judgement is required to secure the people, including acting against the law. It would seem to follow that when human rights are made into legal entitlements, they may legitimately be suspended along with other legal protections during a state of emergency. As a result, human rights would be relativized to what we can think of as a political judgement about when the safety of the people is not in issue. The author contests this claim through an argument based in Hobbes’s political and legal theory that the safety of the people is a juridical concept, as is sovereignty itself. The sovereign cannot act outside of law and his exercises of power have to be justified to his subjects as being according to law, where accordance with law requires respect for human rights. These ideas are located in the constitutionalist tradition which stretches back to Cicero and his much-misinterpreted slogan.

Keywords:   human rights, emergency, Cicero, Hobbes, Schmitt, legality, rule of law, constitutionalism

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