A Brief Summary of Oren Gross’ Extra-Legal Measures Model

Imagine CSIS has detained an individual, and they’re totally confident he or she has planted a bomb containing weaponized anthrax in the Eaton’s Centre. The bomb may detonate at any minute potentially exposing tens of thousands of people to the virus. The detainee is the only lead CSIS has to locate the bomb, and they’re absolutely certain that the detainee will reveal the correct location of the bomb if he or she is tortured.

In this hypothetical scenario, CSIS would be forced to make a “tragic choice” between two mutually exclusive courses of action, each of which would lead to injustice. If CSIS decided not to torture the detainee, innocent people would face grave illness and/or death as result of exposure to anthrax. If CSIS decided to torture the detainee, some agents would risk criminal sanction because they violated the laws prohibiting torture. Consequently, in this scenario CSIS agents would be torn between two conflicting demands: they would be morally obliged to obey the law in a context where strict obedience would also be immoral  (Gross, 2009). They would be compelled to torture the detainee by prudential considerations that oblige them to “promote the greatest good for the greatest number of people” (Gross, 2003: 1100), and deterred from torturing the detainee by the law understood as an internalized self-regulating norm which obliges them “to value observing [legal] norms and be wary of norm-violating conduct” (Gross, 2009: 80).

Oren Gross claims that his extra-legal measures model, a prescriptive theory of emergency power, would provide state agents with the moral resources to navigate such ethical thickets. The model prescribes two temporally distinct courses of action.
First, it encourages the state agent ensnared in an exceptional situation to decide whether to act extra-legally1 (i.e., outside the law), provided they promise to publicly disclose their extra-legal actions (Gross, 2003; 2009). Second, it proposes ex-post (retrospective) review as a means of determining the legal status of the extra-legal act, and the extent of the state agent’s responsibility for it (ibid.).  What makes retrospective review unique is that engages  “society” and/or “the people” in the process of determining the legality of an extra-legal act, and the consequences that should be attached to it (if any).  For example, if the public ratifies an extra-legal act, the extra-legal act would be retroactively legalized, and the state agent would be exculpated. He or she might even be rewarded for courageously deciding to act outside the law in the face of danger. If the public rejects an extra-legal act, the extra-legal act would be retroactively rendered illegal, and the state agent might be held responsible for it. He or she may even be subject to some form of criminal punishment. Moreover, both the review process, and any consequences attached to an extra-legal act can be formal or informal. For instance, retrospective review can occur through political channels, and may include the application of legal sanctions.

There are striking similarities between the extra-legal measures model and John Locke’s theory of prerogative power. Both prescribe “extra-legal action” in exceptional situations, both argue that extra-legal action should advance the public good,  both subject extra-legal action to some form of retrospective review, and both conceptualize the exceptional situation similarly. Yet, Locke’s and Gross’ theories of extra-constitutional and extra-legal power are distinguishable in at least two respects.

According to Locke, the executive branch can exercise the “prerogative power” entrusted to it in exceptional situations. Exceptional situations arise when “unforeseen and uncertain Occurrences”  “unsettle the settled laws which have been enacted to provide certainty and predictability in everyday life” . The prerogative, i.e., “the Power of doing publick good without a Rule”  authorizes the executive to “act according to discretion […] without the prescription of the Law, and sometimes even against it” if “strict and rigid observation of the Laws may do harm”.

Yet, unlike the extra-legal measures model which subjects extra-legal action to ex post review, under Locke’s theory of prerogative power, the legitimacy of extra-constitutional action is decided by what Gross describes as the “functional test.” To put it simply, the functional test asks three questions:

Was the prerogative power used in an exceptional circumstance?
Was it employed to advance a legitimate end (i.e., the public good)?
Did the people consent to the use of the prerogative power?

To pass the test, the answer to each question must be yes. The extra-legal measures model remedies a weakness related to the question of public consent. Locke thinks one can be secure in their belief that the public has consented to extra-constitutional action if the public does not revolt or incite revolution in response to it.  Rather than using the absence of public revolt as the measure of public consent, ex post review seeks to formalize the process through which extra-legal action is evaluated.The requirement that extra-legal action be either ratified or rejected, is presented as a better index of the public’s consent of the use of extra-legal action in a particular case.

This requirement, moreover, is also beneficial relative to Locke’s method of determining the existence of public consent  because it deters state agents from using extra-legal action in a manner contrary to the public good.The requirement that state agents publicly reveal any extra-legal action, and face ex post review attaches a certain amount of uncertainty to extra-legal action. That a state agent would be unsure as to the personal consequence(s) that might arise as a result of their action, would compel them to rationally consider the possible consequences of acting outside the law before acting . In this sense, ex post review can be understood as a process which instrumentalizes “individual liability as a mechanism to deter constitutional violations by public officials.” This element of uncertainty is thought to act as a better deterrent against tyranny than the threat of public revolt under Locke’s theory.   Because future retrospective review forces state agents to reflect on the implications of their actions before acting outside the law, proponents of the  extra-legal measures model argue that it also strengthens the legal order by reinforcing the rule of obedience amongst state agents. It serves to create the type of  “moral politicians” Micheal Waltzer describes. Such moral politicians “would do the right (pragmatic) thing to save the nation, while openly acknowledging and recognizing that such actions are (morally) wrong–that is, openly admitting that her hands are indeed dirty” . Insofar as it places the burden of ex post ratification–of ensuring that state agents are not “above the law”– solely on the people/society, the extra-legal measures model also instills an “ethic of responsibility” within society and the public (Gross, 2009).19  Hence, by empowering state agents to go  “outside the law in appropriate cases,” the extra-legal measures model is presented as a model of emergency power which preserves the rule of law more effectively than “constantly bending the law to accommodate emergencies will” (Gross, 2003: 1097).

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