a1 Osgoode Hall Law School, York University [email protected]
Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.
* I would like to thank Elizabeth Angell, John Gardner, Michael Giudice, Leslie Green, Wil Waluchow, the participants in the Oxford Jurisprudence Discussion Group, at which this paper was presented in May 2010, as well as two anonymous referees, for discussion, comments, and criticisms. Special thanks are also owed to David Dyzenhaus for sharing some of his work prior to publication.