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

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Legal Theory

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Tanguay-Renaud, Fran├žois
jurisprudence; public law & legal theory; legal ethics--philosophy; social; political & legal philosophy; jurisprudence; public law & legal theory; legal ethics--philosophy; social, political & legal philosophy; Ethics and Political Philosophy; International Law; Jurisprudence; Legal Theory; National Security Law; Public Affairs, Public Policy and Public Administration; Public Law and Legal Theory
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Some legal theorists deny that states can conceivably act extralegally 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.