The Rule of Law in Times of Crisis - A Legal Theory on the State of Emergency in the Liberal Democracy

Andrej J. Zwitter 

University of Groningen - Faculty of Law
December 1, 2012

This is an earlier draft of the article that appeared as: Andrej Zwitter, "The Rule of Law in Times of Crisis A Legal Theory on the State of Emergency in the Liberal Democracy", in Archives for Philosophy of Law and Social Philosophy 98, 2012: 95.
University of Groningen Faculty of Law Research Paper No. 10/2013 
Abstract:      

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

Number of Pages in PDF File: 36

Keywords: State of emergency, rule of law, human rights, emergency powers, separation of powers,

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2369335