Are Grey Holes Worse than Black Holes for the Rule of Law?

David Dyzenhaus

Friday 19th January 2007, 3 pm, SR4-2

My question is whether the rule of law has any real role to play in controlling the state’s response to the kind of emergency situation presented by international terrorism. By the rule of law I mean simply the protection afforded to those subject to law’s power to challenge effectively before an independent tribunal the state’s claim about the necessity to act. I will focus on detention without trial of individuals claimed by the state to represent risks to national security. Are such detainees necessarily in ‘legal black holes’—a space created by law but in which no effective legal challenge is available? While a black hole is a space devoid of legal controls, a grey hole is a space in which there are legal controls, but these are not substantive enough to give those in the hole any real protection—there is just enough of a veneer of legality to provide government with a basis to claim that it is still governing in accordance with the rule of law. Since grey holes are in substance black, their existence might be even more dangerous for the rule of law than black holes.

David Dyzenhaus is a Professor of Law and Philosophy at the University of Toronto, Associate Dean, Graduate Studies, of the Faculty of Law, and a Fellow of the Royal Society of Canada. Prior to joining the Faculty of Law in 1990, Professor Dyzenhaus served as Assistant Professor and Canada Research Fellow at the Faculty of Law, Queen's University from 1989-1991. He has taught in South Africa, England and Canada in Law, Philosophy and Sociology. He holds a doctorate from Oxford University and law and undergraduate degrees from the University of Witwatersrand, South Africa. In 2002, he was the Law Foundation Visiting Fellow in the Faculty of Law, University of Auckland. In 2005-06 he was Herbert Smith Visiting Professor in the Cambridge Law Faculty and a Senior Scholar of Pembroke College, Cambridge. Prof. Dyzenhaus last visited Singapore in 2004 when he attended the Anti-Terrorism Law and Policy Symposium hosted by the NUS Law Faculty.

Professor Dyzenhaus is the author of Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order. He has published two edited collections of essays, Law as Politics: Carl Schmitt's Critique of Liberalism and Recrafting the Rule of Law: The Limits of Legal Order, and is co-editor of Law and Morality: Readings in Legal Philosophy. In 2004 he gave the JC Smuts Memorial Lectures to the Faculty of Law, Cambridge University, which was published by Cambridge University Press in 2006 under the title The Constitution of Law: Legality in a Time of Emergency.