The Relationship between States of Emergency, Politics and the Rule of Law

• Author: Ralf Salam
• Position: Legal Consultant
• Pages: 15-37

15

THE RELATIONSHIP BETW EEN STATES OF

EMERGENC Y, POLITICS AND THE RULE OF L AW

R S*

A

e relationship between states of emergency, politics and the rule of law, has

been long been debated amongst law scholars and political theorists. Most of these

debates have focused on the eect of states of emergency on the rule of law and

State sovereignty. is article infers that diculties still exist in identifying the

relationship between politics, the law, human rights and states of emergency. is

articles intention is to simplify the understanding of the political and legal aspects

of states of emergency. e comparative methodology used throughout this article

has allowed for data collection , involving the analysis of various sources, including

the opinions of the world’s top legal and political theorists.

I. I 

History reveals that states of emergency can greatly a ect the political

and legal aspects of an ordinary citizen’s life. Indeed, repercussions may

include instances of suspension of some normal governmental functions or

authorisation for government agencies to limit, or suspend, civil liberties.

Such actions are considered to be political and to have a great eect on the

citizen’s basic human rights. Regarding this, Agamben cited Ernesto Laclau

when he expou nded that:1

[S]ociety requires constant eorts at re-grounding … a nd if

the plurality of demands requires a constant process of legal

transformation and revision, the state of emergency cea ses to

be exceptional and becomes an integra l part of the political

construction of the social bond.

1 Giorgio Agamb en Sovereign Power and Bare Life (Stanford University Press, Pa lo Alto, 1998)

at 16.

* Author, Leg al Consultant. Former Sec retary General of the Eu ropean African Hu man

Rights Organization. Ralf.sala m@gmx.de.

16 Canterbur y Law Review [Vol 23, 2017]

II. T R  S 

E  P

Agamben acknowledged the relationship between emergency, politics and

law, when he said that:2

States of emergency depends on the relationship between

two elements - heterogeneous and antithetical, Nomos and

Anomie, the law and the forms of life whose articulation is

to be guaranteed by the State in times of emergency as long

as the law and the forms of life remain separated.

Here we can see how he divided the condition itself into two contradictory

elements which could merge together at certain moments. According to him,

their dialectic works when they merge into a unique power with two sides.3

As such, when the state of emergency becomes the general ru le, the political

system transforms into an apparatus for discrimination.4 Whi le he cited the

possibility that both elements of an emergency could merge together, he

warned that this action might result in deterioration in human rights.5

In spite of the consequences of states of emergency on the rights of

citizens, especially their legal rights, one can note that emergency conditions

exist in all politica l and legal systems of the world, which might be due to the

political need of States to establish order and to supplement the objects of law,

at times of stress. is principle applies generally, regardless of whether the

ruling regime is a premature politica l regime or a modern one. e authorities

which control legal institutions and are responsible for the creation or review

of laws in a premature regime are generally politica lly motivated. Similarly,

in modern States it may be said that the authorities are also politically

motivated, since the ruling par ty in a modern democratic state has a majority

in Parliament and, therefore, has the power to pass laws compatible with its

general political policies. e major dierence between a premature political

system and a democratic or modern one can be summarised in two words:

public interest.

In theory, the emergency conditions should be those which are needed to

reect the gravity of the situation, without unduly aect ing the legal rights of

the individual. Conversely, in practice, and especially in non-democratic or

premature regimes, the sovereign has the power to suspend, not only political

order, but also the legal system.6 States of emergency, therefore, aects the

2 Giorgio Aga mben“e State of Emergency ” Extract f rom a lecture given at t he Centre

Roland-Bart hes (University of Pa ris VII, Den is-Diderot, 2002) <w ww.generat ion-online.

org> at 9.

3 At 16

4 At 16.

5 At 16.

6  is denition fol lows Carl Schm itt’s denition of an emergenc y in Carl Schmitt Political

eology (Unive rsity of Chicago Press, Ch icago, 2005) at 12.