The other side of the law: Discrimination and emergency powers

Abstract

Emergency powers have always posed a threat to the rule of law, particularly standards of legality and respect for individual rights. Although system-wide impacts to legal norms and the rights of the general population continue to pose real dangers, we argue that the most egregious violations of the rule of law in liberal democratic societies in times of emergency now tend to be restricted to historically marginalized groups depicted as disorderly, dysfunctional, or pathological. As exemplified in official responses to Hurricane Katrina in New Orleans, reports of rampant child abuse in aboriginal communities in Australia’s Northern Territory, and high levels of homicide in Jamaica, emergency powers are often applied in discriminatory ways that reflect and reinforce existing disparities in race, gender, and class. Even when emergency measures are nominally adopted for the entire population, their application is often limited to highly specific geographical areas that place marginalized groups into “zones of otherness.” The result, we argue, is to establish a de facto system of legal pluralism that subjects subordinate groups to enhanced forms of regulation, surveillance, detention, and violence, but generally leaves established legal rules and protections intact for everyone else.