Pub Date : 1900-01-01DOI: 10.5771/9783845298610-75
Lukáš Kollert
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.
{"title":"To Regulate, or Not to Regulate? A Study on the State of Exception and Its Regulation","authors":"Lukáš Kollert","doi":"10.5771/9783845298610-75","DOIUrl":"https://doi.org/10.5771/9783845298610-75","url":null,"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.","PeriodicalId":371523,"journal":{"name":"Emergency Powers","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127065462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783845298610-125
Eckart Klein
The state of exception, or however it is called, has always fascinated lawyers. To overcome an anomalous political and/or military situation confronting a State will in many cases require means not available under normal circumstances. How far should the law go in order to cope with such situations? Should it provide any exceptional means at all? How can abuses be avoided? How can the return to normalcy be assured? What can a State do in an emergency if the law has not made available special instruments, or existent provisions prove to be insufficient? May a State derogate from legal rules without being authorized by an express constitutional provision? How far do international rules determine the declaration and application of a state of exception?1 These general questions impact any discussion on the state of exception, and should be thought of before such a situation arises. The first part of my paper will present a general overview of the treatment of the state of exception under the constitutions of the German Empire, the Weimar Republic and the Basic Law, thus covering a period of time from 1871 to the present. Particular focus will be placed on legal debates concerning respective provisions. In the second part of this paper, I shall present the different states of emergency as determined by the German Basic Law and will particularly discuss to what extent the armed forces may be called in, fundamental rights affected and political and legal control mechanisms exist. A general assessment concludes my deliberations. I.
{"title":"The German Discussion on the State of Exception and Constitutional Provisions on States of Emergency","authors":"Eckart Klein","doi":"10.5771/9783845298610-125","DOIUrl":"https://doi.org/10.5771/9783845298610-125","url":null,"abstract":"The state of exception, or however it is called, has always fascinated lawyers. To overcome an anomalous political and/or military situation confronting a State will in many cases require means not available under normal circumstances. How far should the law go in order to cope with such situations? Should it provide any exceptional means at all? How can abuses be avoided? How can the return to normalcy be assured? What can a State do in an emergency if the law has not made available special instruments, or existent provisions prove to be insufficient? May a State derogate from legal rules without being authorized by an express constitutional provision? How far do international rules determine the declaration and application of a state of exception?1 These general questions impact any discussion on the state of exception, and should be thought of before such a situation arises. The first part of my paper will present a general overview of the treatment of the state of exception under the constitutions of the German Empire, the Weimar Republic and the Basic Law, thus covering a period of time from 1871 to the present. Particular focus will be placed on legal debates concerning respective provisions. In the second part of this paper, I shall present the different states of emergency as determined by the German Basic Law and will particularly discuss to what extent the armed forces may be called in, fundamental rights affected and political and legal control mechanisms exist. A general assessment concludes my deliberations. I.","PeriodicalId":371523,"journal":{"name":"Emergency Powers","volume":"183 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125162516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783845298610-43
Vojtěch Belling
While Francis Fukuyama may have been carried away a quarter century ago by his vision of the end of history and the triumph of liberal democracy, the series of terrorist attacks, wars and economic crises over the past two decades has shown us that the world is no closer to the alleged end of history than at any time before. The normality, i.e. the state in which “normal” legal norms are being applied, is increasingly being tested by situations of crisis. The concept of the state of exception has therefore logically drawn much attention from political and legal science. In addition to the classic topic of protecting the state from “traditional” internal risks like rebellion or natural catastrophes, research is also being focused on states of exception brought about by terrorist threats and economic crisis.1 The question of how much a crisis situation might justify the breach or even suspension of positive (or even suprapositive) legal provisions by public authorities has been a subject of dispute among legal scholars and philosophers since the Middle Ages. From the beginning it has been accompanied by ambiguity in understanding the very notions of the state of exception. While some scholars regard state of exception as inherently legally empowering the constitutional authority to violate constitutional norms,2 others believe it only to be an extra-legal assertion of power that cannot be anticipated by the constitution, even if it may be “legalized” ex I.
{"title":"The State of Exception and Limits of the Rule of Law","authors":"Vojtěch Belling","doi":"10.5771/9783845298610-43","DOIUrl":"https://doi.org/10.5771/9783845298610-43","url":null,"abstract":"While Francis Fukuyama may have been carried away a quarter century ago by his vision of the end of history and the triumph of liberal democracy, the series of terrorist attacks, wars and economic crises over the past two decades has shown us that the world is no closer to the alleged end of history than at any time before. The normality, i.e. the state in which “normal” legal norms are being applied, is increasingly being tested by situations of crisis. The concept of the state of exception has therefore logically drawn much attention from political and legal science. In addition to the classic topic of protecting the state from “traditional” internal risks like rebellion or natural catastrophes, research is also being focused on states of exception brought about by terrorist threats and economic crisis.1 The question of how much a crisis situation might justify the breach or even suspension of positive (or even suprapositive) legal provisions by public authorities has been a subject of dispute among legal scholars and philosophers since the Middle Ages. From the beginning it has been accompanied by ambiguity in understanding the very notions of the state of exception. While some scholars regard state of exception as inherently legally empowering the constitutional authority to violate constitutional norms,2 others believe it only to be an extra-legal assertion of power that cannot be anticipated by the constitution, even if it may be “legalized” ex I.","PeriodicalId":371523,"journal":{"name":"Emergency Powers","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129268853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783845298610-101
J. Kysela
Thomas Poole introduces his interesting book on the reason of state and prerogative by defining legal exceptionalism as a thematization of exceptional powers in crisis situations. He relates this concept to three different, albeit related, phenomena: a) emergency powers, b) state of exception, and c) prerogative. He examines each of these in relation to his main object of interest, the reason of state.1 I consider it useful to give more general thought to exceptionality in law in a book devoted to states of exception. But let us begin with a brief note on the exceptionality of law.
Thomas Poole通过将法律例外主义定义为危机情况下特殊权力的主题化，介绍了他关于国家和特权的原因的有趣的书。他将这一概念与三种不同但又相关的现象联系起来:a)紧急权力，b)例外状态，c)特权。他根据他主要感兴趣的对象，即状态理性，来考察每一个问题我认为，在一本专门讨论例外状态的书中，对法律中的例外进行更普遍的思考是有益的。但是，让我们先简要说明一下法律的例外性。
{"title":"Exceptionality in Law","authors":"J. Kysela","doi":"10.5771/9783845298610-101","DOIUrl":"https://doi.org/10.5771/9783845298610-101","url":null,"abstract":"Thomas Poole introduces his interesting book on the reason of state and prerogative by defining legal exceptionalism as a thematization of exceptional powers in crisis situations. He relates this concept to three different, albeit related, phenomena: a) emergency powers, b) state of exception, and c) prerogative. He examines each of these in relation to his main object of interest, the reason of state.1 I consider it useful to give more general thought to exceptionality in law in a book devoted to states of exception. But let us begin with a brief note on the exceptionality of law.","PeriodicalId":371523,"journal":{"name":"Emergency Powers","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114517574","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783845298610-157
{"title":"Glossary of German Expressions","authors":"","doi":"10.5771/9783845298610-157","DOIUrl":"https://doi.org/10.5771/9783845298610-157","url":null,"abstract":"","PeriodicalId":371523,"journal":{"name":"Emergency Powers","volume":"06 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129376655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783845298610-29
Otto Depenheuer
The latest attacks by Islamic terrorists – in Nizza, Berlin, Barcelona and elsewhere – create a existential challenge for the free constitutional nations of the West simply by virtue of the fact that their goal is to provoke, attack, disintegrate and eventually destroy the self-directed understanding and the values of these nations – peace, freedom, equality, brotherhood, etc. – in the name of an atavistic belief. Until now, the societies affected by this challenge have accepted it with amazing serenity. Still, it may well be only a question of time – that is, of the number and intensity of future attacks – when this serenity comes to an end and is brusquely replaced by anxiety and panic. That will put politics under massive pressure to act and to “somehow” come up with an appropriate, quick and effective response to prevent future perils. Then, if not sooner, the frequent claim of politicians that one-hundred-percent certainty is impossible to achieve will fail to provide a persuasive argument for not implementing the maximum possible number of preventive measures. The fairly tenuous legitimization of the State’s lack of activity by the slogan “freedom cannot be saved by doing away with it” refuses to confront the fact that the point of preventing peril is to ensure security so that freedom can develop effectively. Thus, security is a precondition making effective freedom possible. The opponent we are facing does not present rational and verbal arguments; rather, he kills, violently and indiscriminately, with the aim of arousing and spreading shock and fear in the population. In the face of this scenario, Jürgen Habermas’s theory of communication – which maintains strong influence over German political thought, and which believes that every political conflict can be transformed into a peaceful discussion – has finally been unmasked as a naive “fair-weather philosophy”. By leaving unanswered the elementary question as to how one can start a dialogue with a jihadist consciously unI.
{"title":"The Exceptional Case in Situations of Normalcy","authors":"Otto Depenheuer","doi":"10.5771/9783845298610-29","DOIUrl":"https://doi.org/10.5771/9783845298610-29","url":null,"abstract":"The latest attacks by Islamic terrorists – in Nizza, Berlin, Barcelona and elsewhere – create a existential challenge for the free constitutional nations of the West simply by virtue of the fact that their goal is to provoke, attack, disintegrate and eventually destroy the self-directed understanding and the values of these nations – peace, freedom, equality, brotherhood, etc. – in the name of an atavistic belief. Until now, the societies affected by this challenge have accepted it with amazing serenity. Still, it may well be only a question of time – that is, of the number and intensity of future attacks – when this serenity comes to an end and is brusquely replaced by anxiety and panic. That will put politics under massive pressure to act and to “somehow” come up with an appropriate, quick and effective response to prevent future perils. Then, if not sooner, the frequent claim of politicians that one-hundred-percent certainty is impossible to achieve will fail to provide a persuasive argument for not implementing the maximum possible number of preventive measures. The fairly tenuous legitimization of the State’s lack of activity by the slogan “freedom cannot be saved by doing away with it” refuses to confront the fact that the point of preventing peril is to ensure security so that freedom can develop effectively. Thus, security is a precondition making effective freedom possible. The opponent we are facing does not present rational and verbal arguments; rather, he kills, violently and indiscriminately, with the aim of arousing and spreading shock and fear in the population. In the face of this scenario, Jürgen Habermas’s theory of communication – which maintains strong influence over German political thought, and which believes that every political conflict can be transformed into a peaceful discussion – has finally been unmasked as a naive “fair-weather philosophy”. By leaving unanswered the elementary question as to how one can start a dialogue with a jihadist consciously unI.","PeriodicalId":371523,"journal":{"name":"Emergency Powers","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127888690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783845298610-11
Josef Isensee
“In orderly times, do keep the rules – yet when all goes upside down and under, act according to the circumstances.” This line from a 16–17th-century Chinese novel1 recalls to us the uncomfortable truth that legal rules may break down over the irregularities of reality. This shows the Achilles’ heel of the rule of law as subordinated to unreservedly general universal laws:2 it may find itself in situations beyond the control of general rules of law, and then it faces a dilemma. Either it has to transgress the legal rules – or else risk disastrous consequences for the community and, indeed, for its own survival qua rule of law. Every general law encounters the limits of its possibilities whenever the normalcy at which it aims is lacking. “The validity of a norm presupposes the general state of affairs for which it is calculated; and when a state of exception is completely incalculable, it is also impossible to assess it normatively.”3 Thus, Hermann Heller; and before him Carl Schmitt: “Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations. The norm requires a homogeneous medium. This factual normality is not a mere ‘external presupposition’ that a jurist can ignore; rather, it belongs to the norm’s immanent validity. There exists no norm that is applicable to chaos.”4 Rather than a norm, normalcy is the real substrate of a norm in the form in which the lawgiver has conceived it, and therefore, a previously existing segment of reality corresponding with the program of the norm. Normalcy is a precondition for a general law to be applied without fricI.
{"title":"On the Validity of Law with Respect to the Exceptional Case","authors":"Josef Isensee","doi":"10.5771/9783845298610-11","DOIUrl":"https://doi.org/10.5771/9783845298610-11","url":null,"abstract":"“In orderly times, do keep the rules – yet when all goes upside down and under, act according to the circumstances.” This line from a 16–17th-century Chinese novel1 recalls to us the uncomfortable truth that legal rules may break down over the irregularities of reality. This shows the Achilles’ heel of the rule of law as subordinated to unreservedly general universal laws:2 it may find itself in situations beyond the control of general rules of law, and then it faces a dilemma. Either it has to transgress the legal rules – or else risk disastrous consequences for the community and, indeed, for its own survival qua rule of law. Every general law encounters the limits of its possibilities whenever the normalcy at which it aims is lacking. “The validity of a norm presupposes the general state of affairs for which it is calculated; and when a state of exception is completely incalculable, it is also impossible to assess it normatively.”3 Thus, Hermann Heller; and before him Carl Schmitt: “Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations. The norm requires a homogeneous medium. This factual normality is not a mere ‘external presupposition’ that a jurist can ignore; rather, it belongs to the norm’s immanent validity. There exists no norm that is applicable to chaos.”4 Rather than a norm, normalcy is the real substrate of a norm in the form in which the lawgiver has conceived it, and therefore, a previously existing segment of reality corresponding with the program of the norm. Normalcy is a precondition for a general law to be applied without fricI.","PeriodicalId":371523,"journal":{"name":"Emergency Powers","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126099615","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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