The Force of Law

Discuss the difference between Common Law and the Statutory Acts made by the Powers that be, (PTB)

The Force of Law

Postby huntingross » Mon Jun 20, 2011 9:59 pm

Force of Law.
Giorgio Agamben is professor of philosophy at the University of Verona.

From a technical point of view, it is important to note that in modern as well as ancient doctrine, the syntagm “force de loi” refers not to the law itself, but to the decrees which have, as the expression goes, “force de loi” decrees that the executive power in certain cases can be authorised to give, and most notably in the case of a state of emergency. The concept of “force de loi”, as a technical legal term defines a separation between the efficacy of law and its formal essence, by which the decrees and measures that are not formally laws still acquire its force.

This type of confusion between the acts by an executive power and those by a legislative power is a necessary characteristic of the state of emergency. (The most extreme case being the Nazi regime, where, as Eichmann constantly repeated, “the words of the Fuhrer had the force of law”.) And in contemporary democracies, the creation of laws by governmental decrees that are subsequently ratified by Parliament has become a routine practice. Today, the Republic is not parliamentary. It is governmental. But from a technical point of view, what is specific for the state of emergency is not so much the confusion of powers as it is the isolation of the force of law from the law itself. The state of emergency defines a regime of the law within which the norm is valid but cannot be applied (since it has no force), and where acts that do not have the value of law acquire the force of law.

It's not a phrase you find a lot of explanation about, apart from ridicule from the "legal types" who scoff that there is no difference.
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