The Extralegal Model

  • Emily Hartz


When Lincoln addressed Congress after his unilateral suspension of the writ of habeas corpus in the beginning of the Civil War, he asked: “are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?” (cited in McLaughlin, p. 622). Lincoln’s rhetorical question captures the dilemma at the root of any form of emergency governance: in times of severe crisis, political societies are faced with the problem that the law ties the hands of the government and may seem to prevent it from dealing effectively with a given threat. The extralegal solution to this dilemma is to set the law aside in order to deal effectively with the crisis (Hartz 2010a, p. 77; Hartz and Kyritsis 2010, p. 161). The point being, as expressed by Lincoln, that “if the Government should be overthrown, when it was believed that disregarding the single law would tend to preserve it,” the ethos of executive oath to “preserve, protect and defend the Constitution of the United States” obliges the executive to disregard that law. Lincoln’s expression of this dilemma is given in a political context. The point he makes in the political context raises the legal question of whether courts should embrace the idea that law may be set aside in order to deal effectively with a national crisis. In the following I refer to the jurisprudential model of emergency that embraces this idea as “the extralegal model.”


Executive Order District Court American Citizen Pearl Harbor Habeas Corpus 
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List of Cases

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Copyright information

© Springer-Verlag Berlin Heidelberg 2013

Authors and Affiliations

  1. 1.University of Southern DenmarkOdenseDenmark

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