On the Validity of Law with Respect to the Exceptional Case

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.