This page intentionally left blank THE CONSTITUTION OF LAW Professor Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial deci- sions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of- law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive. David Dyzenhaus is Professor of Law and Philosophy at the University of Toronto. He is a Fellow of the Royal Society of Canada, and has worked in South Africa, the United Kingdom, Germany and New Zealand. THE CONSTITUTION OF LAW Legality in a Time of Emergency DAVID DYZENHAUS cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK First published in print format isbn-13 978-0-521-86075-8 isbn-13 978-0-521-67795-0 isbn-13 978-0-511-24955-6 © David Dyzenhaus 2006 2006 Informationonthistitle:www.cambrid g e.or g /9780521860758 This publication is in copyright. 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Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback p a p erback p a p erback eBook (EBL) eBook (EBL) hardback For Alexander and Sophie CONTENTS Acknowledgements page ix Ta b l e o f cases xi Ta b l e o f statutes xiv Introduction 1 1Legality in a time of emergency 17 Introduction 17 Judges and the politics of the rule of law 20 Carl Schmitt’s challenge 35 Parliamentary or judicial supremacy? 54 The moral resources of law 60 2Constituting the legislature 66 Constitutional positivism 66 The Communist Party case 72 Canada’s common law bill of rights 87 Anxiety about judicial review of legislation 89 Disobeying Parliament 102 Evisceration 107 Reconciliation 108 Deference 118 3Taking the administrative state seriously 121 Recognizing rationality 121 Maintaining the rule of law 129 Emerging from the shadows 149 In the black hole 160 vii viii contents 4The unity of public law 174 Introduction 174 The Belmarsh decision 175 Refuting dualism 190 Black holes and the rule of law 196 The ruleofgoodlaw 220 Bibliography 234 Index 242 [...]... 15 1, 15 7–60, 16 1, 18 2, 18 3, 200 R v Hickman, ex parte Fox and Clinton (19 45) 70 CLR 598 10 8, 11 0, 11 1, 11 2, 11 7 R v Home Secretary, ex parte Ahmed and Patel [19 98] INLR 570 16 7 R v Hull University Visitor, ex parte Page [19 93] AC 682 10 7 table of cases R v Legislative Committee of the Church Assembly [19 28] 1 KB 411 12 3 R v Secretary of State, ex parte Hosenball [19 77] 1 WLR 766 16 0–2 R v Secretary of. .. 27, 15 1 s 6 15 3 Foreign Compensation Act 19 50 s 4(4) 10 7 Human Rights Act 19 98 5, 33, 16 2, 16 7, 18 1, 18 4, 18 8–90, 211 s 4 217 s 14 17 5, 18 5–7 Sch 1 186 Nationality, Immigration and Asylum Act 2002 28 United States Constitution art I, s 9 82 art II 49 xv Introduction Is the rule of law optional for liberal democratic societies? In the wake of the attacks on the United States on 11 September 20 01, the. .. 26 xiii 93 Secretary of State v O’Brien [19 23] AC 603 16 7 Secretary of State for the Home Department v Rehman [2002] 1 All ER 12 3 26, 31 3, 63, 16 3–6, 16 9, 17 0 1, 17 4–5, 17 6, 17 7, 18 0, 18 1, 18 2, 18 3, 18 7, 18 9, 219 , 220 Sprigg v Sigcau [18 97] AC 238 25 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 14 1, 16 5, 16 6, 220 Switzman v Ebling [19 57] SCR 285 88–9, 90 Toronto (City) v... 26, 33, 63, 81, 86, 94, 14 9–56, 16 1, 16 2, 16 5, 16 7, 16 9, 18 1, 18 3, 219 Lloyd v Wallach (19 15) 20 CLR 299 79, 94 M v Immigration Appeal Tribunal [2004] EWCA Civ 17 31 30 Marbury v Madison (18 03) 1 Cr 13 7 (2 Law Ed 11 8) 85 Minister for Immigration and Ethnic Affairs v Teoh (19 94–95) 18 3 CLR 273 16 7, 16 9–70, 217 Minister for Immigration and Multicultural Affairs v Yusuf (20 01) 206 CLR 323 11 5 National Corngrowers... ex parte [19 42] ALR 359 79, 94 14 4 table of statutes Civil Procedure Code art 88 13 1 South Africa Act 37 19 63 s 17 20 1 United Kingdom Act of Settlement 17 01 90 Anti-Terrorism, Crime and Security Act 20 01 189 s 23 24, 17 5 s 24 17 5 s 25 17 5 s 26 17 5 s 28 17 6 s 29 17 6 s 30 17 6, 17 7 Asylum and Immigration Act 2004 30 Defence of the Realm (Consolidation) Act 19 14 24, 15 7 Emergency Powers (Defence) Act 19 39... State for the Home Department, ex parte Pierson [19 98] AC 539 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 11 5 93, 16 5 Racal Communications Ltd, Re [19 81] AC 374 10 7 Remuneration of Judges, Reference re [19 97] 3 SCR 3 90 Ridge v Baldwin [19 64] AC 40 12 7 Roncarelli v Duplessis [19 59] SCR 12 1 12 8– 41, 15 6 Rossouw v Sachs (19 64) 2 SA 5 51 (A) 20–3, 26 xiii 93 Secretary of State... involved in the political choice to rule by or through law The claim that rule by law presupposes the rule of law is controversial For example, the central theme of a recent collection of essays on democracy and the rule of law is the distinction between rule by law and the rule of law, where the former means the use of law as a brute instrument to achieve the ends of those with political power while the latter... Tribunal [19 99] 2 SCR 13 24 12 0 Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police [19 79] 1 SCR 311 12 7, 13 5 Oppenheim v Cattermole [19 76] AC 249 16 6 O’Reilly v Mackman [19 83] 2 AC 237 10 7 Pearlman v Harrow School Governors [19 79] QB 56 10 7 Pezim v British Columbia (Superintendent of Brokers) [19 94] 2 SCR 557 Plaintiff S157/2002 v Commonwealth (2003) 19 5 ALR 24 93, 11 0 17 Polyukhovich... Law Needs the Concept of “Due Deference”’ in Nicholas Bamforth and Peter Leyland (eds.), Public Law in a MultiLayered Constitution (Oxford: Hart Publishing, 2003), pp 337–70 ‘As in any other system of law, so also in that which governs the relations of states inter se, the question of the limits of the rule of law is the central problem of jurisprudence’ Hersch Lauterpacht, The Function of Law in the. .. law legal orders, they will be part of the common law constitution For this reason, my argument will rely for the most part on introduction 5 cases drawn from jurisdictions where there is or was no bill of rights which protects the principles of the rule of law, from, that is, countries which belong to the common law family of the Commonwealth My overall argument is that what we might think of as the . Department v. Rehman [2002] 1 All ER 12 3 26, 31 3, 63, 16 3–6, 16 9, 17 0 1, 17 4–5, 17 6, 17 7, 18 0, 18 1, 18 2, 18 3, 18 7, 18 9, 219 , 220 Sprigg v. Sigcau [18 97] AC 238 25 Suresh v. Canada (Minister of. Co. (19 20) Ltd [19 24] 1 KB 17 1 12 3 R v. Halliday, ex parte Zadig [19 17] AC 260 24–7, 33, 63, 79, 94, 15 1, 15 7–60, 16 1, 18 2, 18 3, 200 R v. Hickman, ex parte Fox and Clinton (19 45) 70 CLR 598 10 8, 11 0,. 14 9 In the black hole 16 0 vii viii contents 4The unity of public law 17 4 Introduction 17 4 The Belmarsh decision 17 5 Refuting dualism 19 0 Black holes and the rule of law 19 6 The ruleofgoodlaw 220 Bibliography