Introduction

• Author: Nicole LaViolette & Craig Forcese
• Pages: 1-15

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Introduction

Nicole LaViolette & Craig Forcese

A. INTRODUCTION

The Roman jurist Cicero once said that “during war, the laws are si-

lent” (silent enim leges inter arma1). Commenting in 2006 on this maxim,

Aharon Barak, then president of the Israeli Supreme Court, wrote that

such “sayings are regrettable . . . . It is when the cannons roar that we

especially need the laws . . . . Every struggle of the state—against ter-

rorism or any other enemy—is conducted according to rules and law.

There is always law which the state must comply with. There are no

‘black holes.’”2 At the same time, history suggests there may be many

circumstances in which the rule of law applies superf‌icially, in a manner

that gives a gloss of legitimacy to dubious uses of state power. David

Dyzenhaus has labelled these phenomena “gray holes,”3 and in the cam-

paign against terrorism, they are commonplace. Not least, conventional

1 Jon R. Stone, ed., The Routledge Dictionary of Latin Quotations (Florence, KY: Rout-

ledge, 2005) 112.

2 Public Committee against Torture in Israel v. The Government of Israel (2006), HCJ

769/02 (Israeli S.C.) at para. 61.

3 David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cam-

bridge: Cambridge University Press, 2006).