Unbound: Harvard Journal of the Legal Left
In the years that followed the events of September 11, 2001, a debate crystallized between those who think that “legal grey and black holes”—which I call simply “legal holes”—are necessary and integral to U.S. law and those who think that they are dangerous and should be abolished. Legal black holes “arise when statutes or legal rules ‘either explicitly exempt the executive from the requirements of the rule of law or explicitly exclude judicial review of executive action.’” Grey holes, in contrast, “arise when ‘there are some legal constraints on executive action . . . but the[y] are so insubstantial that they pretty well permit government to do as it pleases.’” Currently both sides of the legal holes debate agree that in legal holes executive action is not bound by the rule of law. The debate turns on what should be done about this.
While this debate has been heightened by contemporary questions about the rule of law and the role of the executive in moments of emergency, this essay argues that the debate regarding the desirability of legal holes is not new. It reflects a deep historical conflict between two competing attitudes toward law. The first tends to view the legal order as a scientific-like system, and the second as a theistic-like system. The first seeks a wholeness and completeness of law through the abolition of legal holes, and the second views completeness as impossible and legal holes as necessary and even salutary. The essay focuses on two pairs of legal scholars as representatives of these competing ways of thinking about the law and legal holes. In the 1920s and 1930s Carl Schmitt and Hans Kelsen pursued the theistic and scientific approaches respectively; currently Adrian Vermeule and David Dyzenhaus have taken up these approaches in a debate on legal holes in the context of securing western nation-states from Islamic terrorism.
I call these two scholarly legal attitudes theistic and scientific not because they explicitly view law as science or theology (although they sometimes do). My claim is structural. Modern science typically treats nature as a set of constant, predictable, and binding rules without exceptions. Under some theistic views, by contrast, nature is a direct consequence of divine will, a will that can alter or suspend the laws of nature (most famously through miracles).