Lex Oppia: An Ancient Example of the Persistence of Emergency Powers (with Lucas Rentschler) (original) (raw)

The law of the exception: A typology of emergency powers

International Journal of Constitutional Law, 2004

The law of the exception: A typology of emergency powers 211 and ordinary life taken up again. This conservative purpose is reflected in the fact that the executive is not permitted to use emergency powers to make any permanent changes in the legal/constitutional system. 2 Emergency powers, exercised in this conservative way, have long been thought to be a vital and, perhaps, even an essential component of a liberal constitutionalthat is, a rights-protecting-government. They are the key to resolving the dilemma faced by such governments when they are under either external or internal attack.

The Emergency Paradox: Constitutional Interpretation in Times of Crisis

SSRN Electronic Journal, 2020

The Covid-19 pandemic has presented an extreme challenge to legal and political structures around the globe. Institutions are struggling to cope with this new reality, none more strenuously than our legal systems which have rapidly introduced and frequently amended criminal and other sanctions in the hopes of curbing the spread of the virus. In such circumstances, the old adage that desperate times call for desperate measures rings true, prompting calls for a loosening or suspension of previously held legal norms. This paper explores the role that the concept of an emergency plays in our interpretation of fundamental constitutional principles such as the rule of law. Emergencies are, ironically, commonplace. Fires break out and road accidents occur on a daily basis. Indeed, so frequently that we employ full-time emergency services to respond to them. The normalcy of emergencies reveals a descriptive paradox, given that emergencies are often defined as abnormal instances demanding extraordinary responses. As Greene puts it, "emergencies are simultaneously a universal, inevitable reality but also unforeseen, exceptional events invariably requiring equally exceptional responses". 1 If our contention is that an emergency is something exceptional, which requires an exceptional response, it becomes difficult to see how fires or road accidents qualify. In most cases, there is actually not much which is exceptional about an emergency, particularly from the perspective of the law. Even large-scale crises such as natural disasters or viral outbreaks can and have been addressed within the ordinary confines of existing institutional structures, with, at most, a fast-tracked timeline or loosening of some procedural red tape. And yet, these examples do often warrant a different response, even if it is not a wholly exceptional one. The difficulty then arises as to how emergencies interact with our constitutional norms, particularly those relating to the interpretation of legal concepts. Crises such as these force us to reconcile the exceptional with the fundamental. If emergencies are to have any legal significance such that they might trigger a state of exception, they must amount to more than simply natural concepts; they must also be legal concepts, interpreted harmoniously with 1 A Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (2018) 1.

The Rule of Law in Times of Crisis - Legal-Philosophical Considerations on the States of Emergency

2010

This article aims to contribute to the discussion about the rule of law and about its definition by looking at the situations where the rule of law is taken to the test – times of emergencies. States of exception and laws of emergency have specific characteristics – one fundamental characteristic of these emergency mechanisms is that legislative power is shifted from the legislative to the executive or in other words democracies become less democratic. By analysing the principle of the rule of law in its conjunction with the nature of emergencies and the structure of states of emergency, their interconnection will become more transparent. It will logically prove that rules regarding the states of exception concern only democracies and that the rule of law continues also within times of crisis. There is no democracy without a conception of the rule of law and the rule of law is only working in democracies and therefore inapplicable to authoritarian regimes. Having established that, this article adds to the legal-dogmatic understanding of the rules of emergency powers by elaborating them on the basis of the concepts democracy, rule of law and separation of powers.

Emergencies in Public Law: The Legal Politics of Containment

Debates about emergency powers traditionally focus on whether law can or should constrain officials in emergencies. Emergencies in Public Law moves beyond this narrow lens, focusing instead on how law structures the response to emergencies and what kind of legal and political dynamics this relation gives rise to. Drawing on empirical studies from a variety of emergencies, institutional actors, and juris-dictional scales (terrorist threats, natural disasters, economic crises, and more), this book provides a framework for understanding emergencies as long-term processes rather than ad hoc events, and as opportunities for legal and institutional productivity rather than occasions for the suspension of law and the centralization of response powers. The analysis offered here will be of interest to academics and students of legal, political, and constitutional theory as well as to public lawyers and social scientists.

Authority after Emergency Rule (Modern Law Review, 2015)

2015

In the context of economic crisis, Europe has witnessed a spate of extraordinary political measures pressed by executive discretion. This paper examines what emergency rule of this kind implies for the possibility of normal rule thereafter. Political decision-makers face the challenge of drawing a line under the crisis so that the unconventional measures used to handle it do not compromise the polity’s norms in lasting fashion. Based on an analysis of the preconditions for plausibly making such an act of separation, I suggest the principal resources for doing so in the EU case are missing. Emergency rule will tend to blend in with normal rule, to the detriment of the political order’s legitimate authority. A more dubiously-grounded ‘descriptive’ authority may conversely be enhanced by emergency rule, as may compliance for instrumental motivations, producing a polity that is stable even if weakly legitimate.

Emergencies: on the misuse of government powers

Public Choice

Nine out of 10 constitutions contain explicit emergency provisions, intended to help governments cope with extraordinary events that endanger many people or the existence of the state. We ask two questions: (1) does the constitutionalization of emergency provisions help governments to cope with disasters and other extraordinary events? (2) What particular parts of emergency constitutions fare best? We find that the more advantages emergency constitutions confer to the executive, the higher the number of people killed as a consequence of a natural disaster, controlling for its severity. As this is an unexpected result, we discuss a number of potential explanations, the most plausible being that governments use natural disasters as a pretext to enhance their power. Furthermore, the easier it is to call a state of emergency, the larger the negative effects on basic human rights. Interestingly, presidential democracies are better able to cope with natural disasters than parliamentary on...

The Constitution of Law: Legality in a Time of Emergency

Canadian Journal of Political Science/Revue canadienne de science politique, 2007

This page intentionally left blank THE CONSTITUTION OF LAW Professor Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-oflaw project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

Natural Disasters and Legal Solutions in the History of State Power

Solutions, No. 4, Issue 1, 2013

This article looks at legal regulations — e.g. dike law or building norms — in the aftermath of disasters as a form of adaptation. Throughout the history of disasters, legal solutions of one sort or another have played a significant role in recovery and prevention, as well as in shaping politics and individual behavior, thus establishing a co-evolutionary relationship between disasters and state power. Below is a link to the full text, which will also appear in the printed edition of "Solutions".