Conceptual Analysis and Emergency Legislation

Abstract

This essay will demonstrate by an analysis of the concepts of terrorism, an emergency, and the rule of law how conceptual analysis can be useful for the drafting and evaluation of emergency legislation to counter the threat of terrorism. It suggests that terrorism is best defined as “the attempt to coerce an indirect target by means of terror produced by the use or threat of violence against a direct target.” An advantage of this definition is that it excludes violent attacks such as the recent mass shootings in US schools that are a very different kind of public threat requiring a very different solution. It explains that the sort of emergency relevant to emergency legislation is an unusual situation severely threatening the public welfare that cannot be dealt with adequately by the exercise of executive powers authorized by the normally applicable law. This provides a potential justification for emergency legislation as a means to protect the well-being of the citizens. It argues that a thick conception of the rule of law requiring protection of individual rights is most appropriate for the evaluation of emergency legislation and analyzes rights as complexes of Hohfeldian positions with a core defining position plus associated positions that together confer freedom and control over the defining core upon the right-holder in face of one or more second parties. This conception of the rule of law imposes limits upon morally justifiable emergency legislation.