To Regulate, or Not to Regulate? A Study on the State of Exception and Its Regulation

Abstract

One cannot get rid of the state of exception simply by turning a blind eye to any legal consideration of this institution or by deleting it from codes of law.1 While in times of stability politicians as well as theorists may be under the impression that they do not need to be concerned with it, for obvious reasons the situation changes dramatically when a crisis occurs. The pressure exerted on public authorities under such circumstances is immense. History shows us that in crises public authorities often take the steps considered necessary, even when lacking explicit legal authorization.2 Given that (i) such extra-legal actions as well as actions based on codified emergency powers may pose a threat to the rights and freedoms of citizens and possibly also to the democratic Rechtsstaat, and (ii) every state may sooner or later be confronted with a (severe) crisis,3 it is vital to consider how to reduce the risks associated with crises and states of exception and whether regulating the latter in positive law is beneficial or rather detrimental.4 For obvious reasons, discussing the issue of the state of exception is crucial in the first place in connection with the Rechtsstaat.5 Whereas in an abI.