The Intelligibility of Extralegal State Action: A General Lesson for Debates on Public Emergencies and Legality

Legal Theory 16 (3):161-189 (2010)
Abstract
Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.
Keywords jurisprudence  legality  extralegal  state  state action  duty-imposing rule  power-conferring rule  David Dyzenhaus  Philip Pettit  Hans Kelsen
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    François Tanguay-Renaud (2013). Criminalizing the State. Criminal Law and Philosophy 7 (2):255-284.
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