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

AuthorRalf Salam
PositionLegal Consultant
R S*
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
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.

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