LAUSR

ABSTRACT In response to the Covid-19 pandemic, the New Zealand government has acted to restrict individual freedoms. The legality of the government’s actions has been the subject of public attention and litigation in the courts. In this article, we take a theoretical view of the question of legality in times of emergency. We characterise the challenges that emergencies pose to the ordinary legal constraints on public power, such as formal limitations requiring statutory authorisation, protection of individual rights, and institutional safeguards against abuse. We then relate these challenges to timeless questions in legal theory, including questions about the subjection of political power to legal rules, about the differences between mere pretence and robust commitments to legality, and about law’s legitimate authority and its legitimate coercion. Focusing on questions most relevant to the New Zealand context, we first examine the values associated with the authorisation of governmental action by legal rules, and explain why a formal fixation on ‘authorisation’ is not enough to serve these values. We then show how legality’s value in supporting law’s authority and guarding against illegitimate coercion depends (at least in part) upon its even operation amidst the contextual and contested realities of the exercise of public power.