Constitutional democracies control the exercise of emergency powers through law and through politics. Although many believe that legal controls on the exercise of such powers are essential, examining the structure and history of political controls on emergency powers demonstrates that there are conditions under which such controls can be more effective than legal controls, even in systems committed to parliamentary supremacy. Political controls can sometimes be deployed effectively more quickly than legal ones can. Even in settings seemingly quite unfavourable to the development of constraints on the flow of power to executive government during emergencies, political controls can work, and sometimes might work in real time more effectively than judicial controls do in real time.

Mark Tushnet’s paper is an interesting extension of his recent work on how constitutional democracies can control the use of emergency powers. His analysis is useful in drawing attention to the often-overlooked impact of political dynamics in times of emergency. However, Tushnet is too ready to accept that political processes will be able to control the grant and use of emergency powers. He also is too quick to draw a sharp dichotomy between effective political and ineffective legal processes. Political processes can be active and useful in reining in the excesses of emergency powers, but usually only if they play out against the backdrop of a vibrant constitutional culture where the potential for abuse of emergency powers is recognised. The impact of legal and supranational controls plays an important role in shaping this constitutional culture, in particular by ‘dampening’ down the abuse of emergency powers and limiting the scope of action available to the executive. Focusing upon the potential of political means alone to control the application of state power in emergency states of exception is to underestimate the capacity of wider constitutional dynamics to play a key role, even if the political arena may be where the ultimate battles are fought out.

In this comment, the author takes issue with Professor Tushnet’s favourable stance on the protection which political controls can afford human rights relative to legal ones. Writing in a jurisdiction with no formal legal instrument of human rights enables the author to speak with experience of the operation of political controls in a ‘pristine parliamentary environment’. The author outlines the ineffectiveness in the Australian experience of counter-terrorism since September 11 of many of the mechanisms which Tushnet has suggested impose constraints upon the diminishment of liberties. The comment concludes that the essential condition for the enhancement of political controls is the presence of legal ones.

The United Kingdom had the experience of at least five different kinds of emergency throughout the twentieth century. The first and most serious is war, though not all wars (including the wars in Iraq and Afghanistan) create or created national emergencies. Nevertheless, the world wars of 1914–1918 and 1939–1945 almost certainly did, especially in the latter case with its risk – albeit short-lived – of invasion by a foreign power. The other causes of emergency were: second, the long-term internal conflict in Northern Ireland in what seemed like a separatist armed struggle, with one community pitted against another, and against the State (1969–2007); third, short-term but large-scale industrial action, which in at least one case (1926) was thought to border on the subversive; while the fourth has been an array of natural disasters, sometimes caused by adverse weather conditions, and sometimes caused by disease; finally, and most recently, there is the threat posed by international terrorism in the wake of 9/11 and our experiences in London in July 2005. Although emergency situations can thus arise for a host of reasons, it might be argued that the foregoing list is far from complete, with a sixth category of emergency being the various economic and fiscal crises that have engulfed the country from time to time, notably in 1931, when emergency powers were taken, and again after the end of World War II, when the country was financially exhausted by the demands of conflict.

This comment responds to a central issue posed by Professor Tushnet as to the way in which democracies control the exercise of emergency powers. Sands believes that ‘law’ and ‘politics’ are not mutually exclusive, and that the relationship between them suggests that a general theory on the interplay of political and legal factors in controlling the exercise of emergency powers remains elusive.

In a 2002 interview exploring the darker side of modern Western secularism, Talal Asad suggested that instead of trying to fit contemporary Islam within the liberal secular paradigm we might want to ask, ‘What exactly does the liberal mean by tolerance?’ (Shaikh, 2002). Despite the overwhelming abundance of literature conceptualising liberal tolerance, Wendy Brown’s latest book shows that Asad’s question is far from commonplace or rhetorical. Regulating Aversion dissects the anatomy of contemporary liberal discourse of tolerance, challenging the truism that tolerance is an unconditional transcendental virtue, something that has for so long been taken for granted.

This article seeks to address a specific aspect of Bills of Rights that tends to be neglected in the literature. That is, the process of how Bills of Rights are drafted. In particular it focuses on the drafting of a particular right-equality with a view to identifying if there is a link between: (a) the manner of how an equality provision is drafted and securing legitimacy of the final product; (b) whether a participative process can influence the formulation and articulation of an equality provision; and finally (c) if the ‘people’ have spoken through this document, does this encourage the judges to take a less restrictive approach in interpreting the equality provision? This task is undertaken by drawing upon the Canadian experience, which then will be used to draw out lessons for those jurisdictions where the process of drafting an equality provision in a Bill of Rights is under way. The article is supported in its conclusions by a series of semi-structured interviews with key players involved in the drafting and interpretation of the equality provision in the Canadian Charter.

This essay argues that the more the state or the political is treated as autonomous the more the specific conception and history of Jews dissolves into a universalised and universalistic category. From this perspective, the emancipatory rights granted to Jews appear as exercises of an arbitrary sovereign power rather than the product and compromises of diverse interests in which Jews are present. This thesis is articulated through a discussion and comparison of two anti-emancipationist radical thinkers; Bruno Bauer and Girogio Agambem. Where Bauer demands the Jews’ emancipation from Judaism as a precondition for the granting of rights, Agamben dissolves the specific Jewish dimension of the Holocaust into a universalist notion of domination and the figure of the Musselman. I conclude by noting that, in the wake of this dissolution, any reference to Jewish specificity, even in death, can be interpreted as the Jews demanding ‘special privileges’ over and above others, thereby running the risk of the Holocaust taking its place in the chain of the antisemitic imagination.