The German Discussion on the State of Exception and Constitutional Provisions on States of Emergency

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.