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| State of Exception | |
|---|---|
| Name | State of Exception |
| Caption | Suspension of ordinary norms during a crisis |
| Status | Extraordinary legal regime |
State of Exception The State of Exception denotes an extraordinary legal regime whereby extraordinary powers are invoked to alter ordinary legal orders during crises. It intersects with concepts from Carl Schmitt, Giorgio Agamben, John Locke, Thomas Hobbes, Max Weber, and institutions such as the United Nations, European Court of Human Rights, Inter-American Commission on Human Rights, and International Criminal Court. Debates involve comparisons with measures enacted during the French Revolution, Weimar Republic, Reichstag Fire, United States crises, and wartime regimes like World War I and World War II.
Theoretical accounts draw on jurisprudence and political philosophy by figures like Carl Schmitt, who framed the sovereign decision in the Weimar Republic; Giorgio Agamben, who elaborated on the notion of ″bare life″ and its relation to the Ancient Rome practice of the ″sacrifice of law″; and liberal theorists such as John Rawls and John Locke who discuss emergency powers in social contract contexts. Analytic distinctions appear between constitutional doctrines in texts like the United States Constitution, French Constitution of 1958, Weimar Constitution, and doctrines adjudicated by tribunals such as the Supreme Court of the United States, Conseil d'État (France), and Bundesverfassungsgericht. Scholars reference jurisprudence from cases involving the Alien and Sedition Acts, the Civil Rights Act, and emergency authorizations such as the UK Civil Contingencies Act 2004 and the US National Emergencies Act.
Origins trace to Roman Republic and Roman Empire practices like the dictatorship (Roman) and the later imperial prerogatives, moving through medieval precedents in English common law, the Habeas Corpus Act 1679, and early modern statecraft exemplified by Louis XIV and the Ancien Régime. The modern legal architecture was shaped by constitutional responses to crises in the French Revolution, the 19th Amendment (United States Constitution) debates, and interwar doctrines during the Weimar Republic and the Reichstag Fire Decree. Post‑1945 frameworks emerged via instruments and institutions such as the United Nations Charter, European Convention on Human Rights, and constitutions like those of Italy, Spain, Turkey, and Argentina that codified emergency powers.
Categorization distinguishes between suspension, derogation, and adaptation mechanisms found in instruments like the European Convention on Human Rights Article 15 derogation procedure, the International Covenant on Civil and Political Rights Article 4, and national statutes such as the Emergency Powers Act (Canada), Provisional Measures Act (Brazil), and the Indian Constitution's Article 352 proclamation. Mechanisms include executive decrees under systems like the French Fifth Republic, legislative authorization in United States joint resolutions, military rule invoked under laws such as the National Security Act (Republic of Korea), and judiciary‑supervised models seen in Germany's Basic Law. Distinctions are made between war emergencies exemplified by World War II, public health emergencies like the 1918 influenza pandemic or COVID-19 pandemic, and insurrection responses such as those to the 1968 Paris protests or the 1973 Chilean coup d'état.
Illustrative examples include the Weimar Republic’s emergency framework and the Reichstag Fire Decree's role in the rise of the Nazi Party; France's 1955 emergency law during the Algerian War and extensions during the 2015 Paris attacks; the United States's suspension of habeas corpus during the American Civil War under Abraham Lincoln and the post‑9/11 measures such as the USA PATRIOT Act; Argentina's repeated emergency declarations during economic crises; Turkey's post‑2016 state of emergency; Israel's prolonged security regulations; and public‑health emergencies in Spain, Italy, and Brazil during the COVID-19 pandemic. Comparative studies contrast judicial review in the Indian Supreme Court, European Court of Human Rights, Inter-American Court of Human Rights, and the Supreme Court of the United States.
Critics from scholarly and institutional quarters — citing examples from Giorgio Agamben, Hannah Arendt, Michel Foucault, and Sheldon Wolin — argue that prolonged or unchecked emergencies erode constitutional checks and civil liberties, enabling executive aggrandizement as in cases linked to Augusto Pinochet and Ferdinand Marcos. Empirical research referencing episodes in Argentina, Chile, Brazil, and the Philippines highlights patterns of abuse, as do studies of post‑9/11 policies in the United States and counterterrorism regimes in United Kingdom and Israel. Normative proposals engage constitutional amendment routes like those used in Germany and Japan, emergency oversight models found in the United Kingdom and Canada, and sunset clauses used in the United States.
Under instruments such as the International Covenant on Civil and Political Rights, European Convention on Human Rights, and regional systems like the American Convention on Human Rights, derogations are permitted but constrained by non‑derogable rights (for instance prohibitions in the Genocide Convention and protections under the Convention against Torture). Bodies including the United Nations Human Rights Committee, European Court of Human Rights, and the Inter-American Commission on Human Rights have adjudicated limits on emergency measures in cases involving Guantanamo Bay detention camp, renditions tied to Extraordinary rendition, and surveillance programs revealed by figures like Edward Snowden.
Recent debates focus on balancing resilience and rights in contexts such as the COVID-19 pandemic, climate emergencies linked to United Nations Framework Convention on Climate Change, cyber incidents exemplified by attacks on Estonia 2007, and hybrid threats discussed in NATO forums like the Wales Summit 2014. Reform proposals include clearer statutory triggers as in the UK Civil Contingencies Act 2004 revisions, judicialized emergency mechanisms modeled on the Bundesverfassungsgericht jurisprudence, international oversight strengthening through the United Nations Human Rights Council, and legislative sunset clauses akin to the USA PATRIOT Act review processes. Emerging scholarship examines technological surveillance, data governance in crises, and transnational accountability via mechanisms such as investigations by the International Criminal Court and special rapporteurs appointed by the United Nations.