In the years since September 11, 2001, scholars have advocated two main positions on the role of law and the proper balance of powers among the branches of government in emergencies. This Article critiques these two approaches-which could be called Legalism and Decisionism-and offers a third way. Debates between Legalism and Decisionism turn on (1) whether emergencies can be governed by prescribed legal norms; and (2) what the balance of powers among the three branches of government should be in emergencies. Under the Legalist approach, legal norms can and should guide governmental response to emergencies, and the executive branch is constrained by law in emergencies. In contrast, under the Decisionist approach, legal norms cannot respond to all emergencies, and therefore the executive branch is and should be the primary decision-maker in emergencies. Legalists emphasize the importance in emergencies of norms, and Decisionists emphasize the importance in emergencies of decisions.
This Article shows not only the disagreements between Legalism and Decisionism but also the three key political assumptions that they often share. First, they agree that emergencies trigger a necessity for security measures that may curtail civil liberties. Second, they perceive public enemies as distinct from private enemies. Third, they share the view that the primary goal of the state and its laws is the prevention of future catastrophes. This Article offers an alternative approach, which I call "Humanist Decisionism. " Humanist Decisionism departs from both Legalism and Decisionism in its attempt to replace the prevailing politics of necessity, enmity, and catastrophe with a politics of friendship and hospitality. This approach has normative implications for the desirability of the legal distinction between public and private enemies, for the level of judicial scrutiny regarding the existence of an emergency, and for the possibility of adopting political and legal measures of friendship and hospitality towards the so-called enemy.
Noa Ben-Asher, Legalism and Decisionism in Crisis, 71 Ohio St. L.J. 699 (2010).