The State of Exception and Limits of the Rule of Law

Abstract

While Francis Fukuyama may have been carried away a quarter century ago by his vision of the end of history and the triumph of liberal democracy, the series of terrorist attacks, wars and economic crises over the past two decades has shown us that the world is no closer to the alleged end of history than at any time before. The normality, i.e. the state in which “normal” legal norms are being applied, is increasingly being tested by situations of crisis. The concept of the state of exception has therefore logically drawn much attention from political and legal science. In addition to the classic topic of protecting the state from “traditional” internal risks like rebellion or natural catastrophes, research is also being focused on states of exception brought about by terrorist threats and economic crisis.1 The question of how much a crisis situation might justify the breach or even suspension of positive (or even suprapositive) legal provisions by public authorities has been a subject of dispute among legal scholars and philosophers since the Middle Ages. From the beginning it has been accompanied by ambiguity in understanding the very notions of the state of exception. While some scholars regard state of exception as inherently legally empowering the constitutional authority to violate constitutional norms,2 others believe it only to be an extra-legal assertion of power that cannot be anticipated by the constitution, even if it may be “legalized” ex I.