{"title":"How to Assess Rule-of-Law Violations in a State of Emergency? Towards a General Analytical Framework","authors":"Zoltán Szente","doi":"10.1007/s40803-024-00244-1","DOIUrl":null,"url":null,"abstract":"<p>According to conventional wisdom, we are living in an era of constant emergencies. The subsequent crises cannot always be handled effectively within the normal legal system, so many countries have introduced some type of emergency, i.e., a special legal regime, to deal with them. However, exceptional power per se poses a threat to democracy, as those in government can use it for their own political gains, curb civil liberties, and subvert the rule of law. The article takes the principled position that emergency situations can be legally regulated, and argues that certain standards of the rule of law should not be waived even in a special legal order. The article discusses how to assess whether the exceptional power is being abused, i.e. whether it is illegitimately limiting the rule of law. For this purpose, it proposes an assessment framework whose criteria can be used in any constitutional democracy to check the legality of the extraordinary power exercised in a state of emergency. The study examines also the possible counter-arguments that could question the success of such an undertaking, and provides answers to these challenges. After that, it explains in detail the rule of law standards for the exercise of exceptional power, the separation of different emergency powers, the requirements of legality, temporariness, purpose-limitation, necessity and proportionality, and controllability, as well as those areas that are untouchable even for the extended power. The justification of these criteria also receives special attention in the study.</p>","PeriodicalId":45733,"journal":{"name":"Hague Journal on the Rule of Law","volume":null,"pages":null},"PeriodicalIF":2.9000,"publicationDate":"2024-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Hague Journal on the Rule of Law","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.1007/s40803-024-00244-1","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
引用次数: 0
Abstract
According to conventional wisdom, we are living in an era of constant emergencies. The subsequent crises cannot always be handled effectively within the normal legal system, so many countries have introduced some type of emergency, i.e., a special legal regime, to deal with them. However, exceptional power per se poses a threat to democracy, as those in government can use it for their own political gains, curb civil liberties, and subvert the rule of law. The article takes the principled position that emergency situations can be legally regulated, and argues that certain standards of the rule of law should not be waived even in a special legal order. The article discusses how to assess whether the exceptional power is being abused, i.e. whether it is illegitimately limiting the rule of law. For this purpose, it proposes an assessment framework whose criteria can be used in any constitutional democracy to check the legality of the extraordinary power exercised in a state of emergency. The study examines also the possible counter-arguments that could question the success of such an undertaking, and provides answers to these challenges. After that, it explains in detail the rule of law standards for the exercise of exceptional power, the separation of different emergency powers, the requirements of legality, temporariness, purpose-limitation, necessity and proportionality, and controllability, as well as those areas that are untouchable even for the extended power. The justification of these criteria also receives special attention in the study.
期刊介绍:
The Hague Journal on the Rule of Law (HJRL) is a multidisciplinary journal that aims to deepen and broaden our knowledge and understanding about the rule of law. Its main areas of interest are: current developments in rule of law in domestic, transnational and international contextstheoretical issues related to the conceptualization and implementation of the rule of law in domestic and international contexts;the relation between the rule of law and economic development, democratization and human rights protection;historical analysis of rule of law;significant trends and initiatives in rule of law promotion (practitioner notes).The HJRL is supported by HiiL Innovating Justice, The Hague, the Netherlands and the Paul Scholten Center for Jurisprudence at the Law School of the University of Amsterdam, the Netherlands.Editorial PolicyThe HJRL welcomes contributions from academics and practitioners with expertise in any relevant field, including law, anthropology, economics, history, philosophy, political science and sociology. It publishes two categories of articles: papers (appr. 6,000-10,000 words) and notes (appr. 2500 words). Papers are accepted on the basis of double blind peer-review. Notes are accepted on the basis of review by two or more editors of the journal. Manuscripts submitted to the HJRL must not be under consideration for publication elsewhere. Acceptance of the Editorial Board’s offer to publish, implies that the author agrees to an embargo on publication elsewhere for a period of two years following the date of publication in the HJRL.