Analysing Contemporary Legal Theory and Judicature: Do the Courts Continue to Be the Guardians of the Rule of Law in Times of Terrorism?

Abstract

Firstly, this paper explores the role of the courts in ordinary times. It is ascertained that procedural standards form a part of the rule of law and that the courts can employ judicial review to safeguard this ideal. The paper, however, points out that the threat of terrorism might justify an accommodation of the courts’ guardian role and discusses several modern emergency theories. It is concluded that only Dyzenhaus’ Legality model accords to the judiciary substantial functions in times of terrorism. Finally, the paper discusses the United States Supreme Court detention jurisprudence and the English case A v Secretary of State for the Home Department and concludes that the majority judgments in most of these cases can be regarded as a victory for the rule of law.