Nếu thách thức có thể được đáp ứng trong một trật tự luật pháp mà không có hạn chế hiến pháp rõ ràng, nó có thể dễ dàng hơn được đáp ứng bởi một trật tự luật pháp hạn chế của các loại phải rõ ràng constitutionalized. | black holes and the rule of law 199 if there is such provision the limits on emergency powers are detailed and clear. But if that challenge can be met in a legal order where there are no explicit constitutional constraints it can all the more easily be met by a legal order in which constraints of the right sort are explicitly constitutionalized. Indeed it is important to rescue Dicey from Ferejohn and Pasquino precisely to fulfill the ambition if not the structure of their own argument. While they wish to claim that responses to emergencies require a dualist legal order one divided between ordinary law that responds to the normal situation and emergency law which responds to the exceptional situation they also seem to favour the idea that the emergency legal system should be a legal order - a rule of law order to the extent And they imply that any derogation from the rule of law requires a So while they concede both limbs of Schmitt s challenge they try to blunt its force. In particular they want to resist his suggestion that a sovereign who is determined to do so can change a dictatorship by commission one limited in scope and time in order to attempt to ensure a return to normality into a constitutional dictatorship one which is able to use emergency powers to construct a new kind of My argument is that in order for that ambition to be realized one has to resist that kind of dualism. One needs to maintain the idea they associate with absolutism that legal order is unitary. Put differently one needs to maintain Hans Kelsen s Identity Thesis the thesis that the state is totally constituted by According to that thesis when a political entity acts outside of the law its acts can no longer be attributed to the state and so they have no authority. Dicey on my understanding subscribes to the same thesis and differs from Kelsen only in that he clearly takes the claim that the state is constituted by law to mean that the law .
