state of emergency
A state of emergency is a condition in which the existence of the state or the fulfillment of basic state functions are viewed by a relevant authority as acutely threatened.
In order to counter the threat ("disturbance of public safety and order "), extraordinary measures are taken to avert danger . Instead of the ordinary constitution, an “ emergency clause” then applies .
The regulations of emergency law can be either intra-constitutional or extra-constitutional. In the first case, the constitution itself provides that it may be deviated from in times of need; in the second case, measures are taken to remedy an emergency that are not provided for in the constitution. Many modern state constitutions make explicit regulations in the event of a state of emergency, but some do not. This is how Switzerland sees z. B. no intra-constitutional emergency law. A theoretical question is whether the extrajudicial emergency law also exists when there is a positive standardization of the exceptional case.
While the state of emergency was initially limited to external dangers - historically one also spoke of a state of siege or martial law - the corresponding regulations increasingly also referred to internal emergencies, i.e. uprisings , civil wars or natural disasters . The state of emergency emancipated itself to a certain extent from the war situation to which it was originally bound and was increasingly used as an extraordinary police measure in civil unrest and uprisings. Most recently, the concept of emergency was even expanded to include economic crises, for example in the Weimar Republic, when emergency ordinances were issued under emergency article 48 of the Weimar Constitution for the purpose of "securing the economy and finances".
In a state of emergency, the constitution or individual provisions thereof are temporarily suspended, with competences being shifted from the legislative to the executive and - in federal states - from the member states to the federal government. In addition, certain basic rights are restricted or temporarily suspended (e.g. economic freedom , freedom of the press , postal secrecy , protection of the home). Another feature is the use of the armed forces to avert danger in the context of the state of emergency. The authority to issue emergency ordinances that have the force of law is often also granted. One of the essential features of the state of emergency is thus the temporary abolition of the separation of powers in the sense of effective government practice. The state of emergency is often ended by means of a formal law , which also regulates the legal consequences of the decisions made during the state of emergency.
The decision on the state of emergency is considered a state governing act.
The exceptional right, often referred to as “ dictatorship ” based on Roman law , is a term with a paradoxical structure: The subject of protection is attacked in order to protect it from danger: “The dictatorship is in its very essence a constitutional anomaly. It is the peculiar dialectic of the institution that it 'must' attack what it is supposed to protect, precisely in order to protect it, and consequently also - within the framework of the dictatorship's purpose - is allowed to attack ”( Heinrich Triepel ).
This is the aporia that the special measures taken to defend the democratic constitution are the same as those that can be used to destroy it:
“There is no institutional rescue that can guarantee that powers […] will really be used with the aim of saving the Constitution. This can only be ensured by the determination of the people to check whether they serve this goal. […] The quasi-dictatorial precautions of the modern constitutional systems […] cannot effectively control the concentration of power. It follows that all of these institutions run the risk of turning into totalitarian systems if the conditions are favorable. "
A state of emergency is therefore often equated with the term “emergency”, which refers to the “need” that is said to have no law: “Si propter necessitatem aliquid fit, illud licite fit: quia quod non est liticium in lege, necessitas facit licitum . Item necessitas legem non habet. ”(“ If something happens out of need, it happens legitimately, because need legitimizes what is not legitimate under the law. The same applies: Need knows no law. ”) ( Gratian ) For example, Clinton Rossiter says : "Since the democratic form of government with its complex balance of forces is designed for functioning under normal circumstances, the constitutional government must be changed in times of crisis as necessary to avert the danger and restore normal conditions."
There is no canonical theory of the state of emergency in public law. Monographic theoretical debates on the topic appeared late. Carl Schmitt presented a first theory of the state of emergency (“Die Dictatur”, 1921 and “Politische Theologie”, 1922). Further investigations followed: Herbert Tingsten (“Les pleins pouvoirs”, 1934), Frederick M. Watkins (“The Problem of Constitutional Dictatorship”, 1940), Carl J. Friedrich (“Constitutional Government and Democracy”, 1941), Clinton L. Rossiter ("Constitutional Dictatorship", 1948). Most recently, Giorgio Agamben subjected the corresponding theoretical approaches to a criticism (“State of Emergency”, 2004). Work on the subject is still rare today (see also: Peter Blomeyer: The emergency in the last few years of Weimar, 1999).
The problem with a theory of the state of emergency is the question of how an anomie can be inscribed in the legal order : “If the peculiarity of the state of emergency is the (total or partial) suspension of the legal order, how can such a suspension still be contained in the legal order? “(G. Agamben).
According to Schmitt, the law is not limited to the law. The application of the law is suspended, but the law as such remains in force. The state of emergency separates the norm from its application in order to make the latter possible. For Schmitt, this also shows the irreducible difference between state and law, since in a state of emergency the state remains in place while the law recedes. Since the state of emergency is not anarchy or chaos, according to Schmitt there is still an order in the legal sense, even if there is no legal order. Schmitt's theory seeks to establish a connection between the state of emergency and the legal order. The factor that allows the state of emergency to be anchored in the legal system is the distinction between “ pouvoir constituant ” (constituent power) and “ pouvoir constitué ” (constituted power) or the distinction between “norm” and “decision”. The sovereign, who can decide on the state of emergency, guarantees its anchoring in the legal norm . The sovereign stands outside the normally applicable legal system and yet belongs to it, because he is responsible for deciding whether the constitution can be suspended in toto . It is therefore the “topological structure of the state of emergency” to “stand outside the legal order and yet belong to it”. According to Schmitt's famous definition, who decides on the state of emergency is sovereign. Here, however, sovereignty is understood as the final, not appellative decision and not, as elsewhere, as the highest, non-derived state power . In Schmitt's work, two concepts of sovereignty run in parallel, which can only be seen from the fact that the pouvoir constituant is sovereign for him, but cannot decide on a state of emergency. Nevertheless, it is a sovereign act when a pouvoir constitué suspends a constitution by decision. What interests Schmitt here is this element of the decision, which in the act of making a decision is outside the legal system and yet remains bound by it, since the restoration of this legal system is the only mandate.
Schmitt - and with him also the later theorists - distinguished two essential forms of dictatorship. The provisional and the sovereign (in the case of CJ Friedrich the distinction is roughly “constitutional” and not “non-constitutional dictatorship”).
- Provisional dictatorship: The dictator is exempt from legal barriers , but is bound by the dictatorship's purpose of defending or restoring the current constitution (see also Schmitt: “The Guardian of the Constitution”). The provisional dictatorship abolishes the constitution in concreto in order to protect its concrete existence. Its function is to create a state in which the law can be realized: "In its absolute form, the state of emergency has occurred when the situation has to be created in which legal propositions can apply" (C. Schmitt). The provisional dictatorship is the typical rule of law regulation of the state of emergency, since both the prerequisite and the content of the dictatorial powers are described and enumerated according to the facts. In the law of the Constitution are deferred all government functions in responsibilities in the form to regulate the state's omnipotence in a system of skills. Thus the fullness of state authority can never appear in sudden concentration. The dictatorship is tied to a defined mandate (commission).
- Sovereign dictatorship: The sovereign form of dictatorship expresses itself in the fact that the dictator is not bound by the suspended constitution, but wants to establish a new, preferred order. This can either be the sovereign prince, whose sovereign power is never completely limited by the sphere of the constitution, or - in the democratic variant - by the constituent power (Pouvoir Constituant) of a directly elected national assembly . This Pouvoir Constituant established the extreme form of the state of emergency. The Third Reich, based on a so-called ordinance of the Reich President for the protection of the people and the state , was also a sovereign dictatorship, since the constitution remained formally in force, but the emergency ordinance was never repealed. The Third Reich was in a sense a "permanent state of emergency" (Allan Bullock).
The most recent theoretical discussion of the state of emergency comes from Giorgio Agamben as part of the Homo Sacer project . He relies on the aforementioned theoreticians, but wants to contrast them with his own interpretation. For him, the exception is a threshold value of the existing legal system: “In truth, the state of emergency is neither outside the legal system nor is it immanent, and the problem of its definition concerns precisely a threshold or a zone of indefiniteness in which inside and outside do not correspond to exclude, but to undetermine. The suspension of the norm does not mean its abolition, and the zone of anomie which it establishes is not without reference to the legal order ”(G. Agamben). This interpretation refers to the Roman institute of the “Justitium” - the temporary “legal standstill” in which all judicial organs ceased their activities and it was forbidden to conduct private business - and thus radicalized the previous theories of the state of emergency.
There were three types of state of emergency alone in the Roman Republic:
- The oldest means was dictatorship , a six-month transfer of all state power to a single person. In the classical republic it was mainly used when both consuls had died. After this institution had been indefinitely by Caesar and abused to concentrate personal power, it was abolished.
- The senatus consultum ultimum , the “last senate resolution”, was first made in 121 BC. BC against Gaius Sempronius Gracchus : The Senate instructed the consuls to do everything possible so that the state would not be harmed. This suspended the ban on the execution of Roman citizens , but the legitimacy of this state emergency was always denied by the Populares .
- The second triumvirate , in which in 43 BC Chr. Octavian , Marcus Antonius and Marcus Aemilius Lepidus were assigned dictatorial powers “to restore the state” for an initial period of five years by a law, actually only served to increase the personal power of the three protagonists in the final phase of the Roman civil wars . It was a constitutionally embarrassing solution because the actual state of emergency of the Roman Republic, the dictatorship, had just been abolished.
Early modern age
In the early modern period , the state of emergency was used in many European countries to smash constitutional orders and to establish absolutism . The kings and princes used the term “neesstess”, the inevitable need to enforce their absolute sovereignty over the privileges of the old estates . They also had plausible reasons for this: By enforcing their monopoly of violence with the help of the new establishment of standing armies, they ended not only the bloody chaos of the religious wars , as it had been in France and Germany during the Thirty Years' War , but also those still rooted in feudalism “ Liberties ”, the old civil liberties , knights and other late medieval classes.
The German Imperium
In the Bismarck Empire Constitution of 1871 it was stated in Art. 68: "If the public security in the federal territory is threatened, the emperor can declare any part of it in a state of war." To determine the modalities, the Prussian law on the state of siege of Expelled on June 4, 1851, after "in the event of a riot [...], in the event of imminent danger to public security, the state of siege could be declared both in times of war and in times of peace." Even without this state of siege, the Reich leadership was empowered, in the event of war or riot, to suspend a number of basic rights in the event of imminent danger to public security. The laws of Bismarck against the supposed enemies of the Reich, namely the Jesuit Law of 1872 and the Socialist Law of 1878, were based on these very far-reaching exceptional rights .
The most famous regulation of the state of emergency in German history is Article 48 of the Weimar Constitution . In the early years of the crisis in the Weimar Republic , President Friedrich Ebert issued emergency ordinances on his basis, mostly to resolve real crises (but also because the parties represented in the Reichstag were responsible for unpopular austerity measures in connection with the return to the gold standard 1923/1924). Ebert's successor, Hindenburg , then tried to turn the emergency article into an instrument for constitutional reform: in March 1930, he ensured that the Hermann Müller Cabinet (SPD), the last government of the Weimar Republic that could rely on a parliamentary majority, was itself already had also made use of the powers of Article 48, was overthrown in order to install an anti-parliamentary " Presidential Cabinet " under Heinrich Brüning (Center Party) . Since, according to Article 48, the Reichstag was allowed to repeal the emergency ordinances and did so in July 1930, Hindenburg dissolved the Reichstag. As a result, the National Socialists became the second largest party, which in turn resulted in credit withdrawals from abroad, which intensified the beginning global economic crisis . Hindenburg's policy of emergency regulations had thus brought about the state of emergency, which she pretended to fight. Until Brüning's fall in May 1932, Germany was governed by emergency ordinances, which the SPD always voted against to repeal in order to prevent further radicalization in further new elections. This actually happened after Brüning's fall, in the Reichstag elections on July 31, 1932: From now on it was no longer even possible to govern with Article 48, since the two fringe parties KPD and NSDAP now together had an absolute majority and any emergency ordinance immediately repealed could. The state of emergency had worsened.
Plans to dissolve the Reichstag and, in this real case of a supra-legal emergency, not to have it re-elected until the economic crisis subsided , Hindenburg rejected for fear of an open breach of the constitution and a civil war. Instead, he appointed Hitler, the leader of the strongest party, as Reich Chancellor and suspended essential civil rights with the Reichstag Fire Ordinance of February 28, 1933. Hitler used the regulation to suppress his political opponents in the election campaign for the Reichstag election on March 5, 1933 . On March 24th, against the votes of the SPD, the Reichstag effectively suspended the last remnants of the Weimar Constitution with the Enabling Act , which was tellingly officially called the “Law to Eliminate the Needs of the People and the Reich”.
On December 15, 1883, the police designer Franz Hlubek was murdered by Anton Kammerer and on January 25, 1884 the police detective Ferdinand Blöch was murdered by Hermann Stellmacher for political reasons. In response, the parliament of Cisleithanien imposed a state of emergency on parts of Vienna and the workers-populated districts of Korneuburg in Lower Austria on January 30, 1884, and also on Wiener Neustadt in 1885 , as anarchist activities were feared. As a result, the police were given far-reaching powers to ban magazines and associations (especially socialist ones). Numerous arrests and expulsions (e.g. of Josef Hybeš ) followed. The state of emergency was relaxed in 1890, so that socialist associations were allowed again, and ended on June 8, 1891.
After long protests against the government, it declared a six-month state of emergency on October 9, 2016. The government then arrested over 1,500 people, causing public resentment to rise. The state of emergency restricts civil rights in Ethiopia. In March 2017 it was extended for another four months and lasted until the beginning of August 2017.
Five days after the attempted coup in Turkey in 2016 , a nationwide state of emergency was declared for a period of 3 months, which was extended several times and expired on July 18, 2018. This is the first state of emergency since the Republic was proclaimed in 1923.
States with current states of emergency (nationwide)
This section lists examples, but the list is not exhaustive.
After the attacks in Sri Lanka on Easter Sunday 2019 , a state of emergency was declared across the country. The state of emergency was extended for another month on June 21, 2019.
United States of America
In response to the terrorist attacks on September 11, 2001 , US President George W. Bush declared a national emergency on September 14, 2001 on the basis of the National Emergencies Act of 1976. This state of emergency is always limited to one year, but has been extended for a further year every year since then by the incumbent presidents (first by George W. Bush, then by Barack Obama and then by Donald Trump ). Some authors therefore speak of a permanent state of emergency that has become normal.
To curb the spread of Sars-Cov-2 , a state-wide state of emergency was declared.
To contain the Sars-Cov-2 pandemic, an emergency law was passed that allows the government under Victor Orbán to govern by decree without the consent of parliament and to dissolve parliament for an indefinite period.
Current emergency regulations
Basic Law of the Federal Republic of Germany
The Basic Law of the Federal Republic of Germany does not explicitly mention the term state of emergency. From 1949 to 1968, the constitutional legislature completely dispensed with emergency laws. Since, according to Germany contract certain prerogatives of the Allies remained in force in the event of an emergency government violence had taken in the Federal Republic again, until the adopted grand coalition of the June 24, 1968 against militant partly resistance APO a " law supplementing the Basic Law ”(“ Emergency Laws ”). According to this, in certain precisely defined cases of an internal or external threat, the Bundeswehr can also be deployed internally, the legislative functions of the Bundestag and Bundesrat can be taken over by the “ Joint Committee ” and some basic rights can even be restricted without legal recourse being open. Critics see the emergency legislation as a major threat to democracy, so the law has not yet been applied.
Emergency provisions of the Austrian Federal Constitution
The Austrian Federal Constitution provides for exceptional circumstances - Notbestimmungen the Austrian Federal Constitution - the use of the Austrian Armed Forces , an emergency decrees of the President , an emergency decrees of the state government and the assumption of certain matters of direct federal administration by the governor before.
Emergency law in Switzerland
In Switzerland, state measures that have no legal basis are called emergency law . According to Para. 3 of the Federal Constitution (BV), the Federal Council “ can issue ordinances or orders directly based on this article in order to counteract serious disruptions to public order or internal or external security that have occurred or are imminent. Such ordinances are to be limited in time. ”According to Para. c BV, the Federal Assembly can also issue ordinances or simple federal resolutions "to safeguard internal security" "if exceptional circumstances so require." Since the Federal Assembly is subordinate to the Federal Council, its measures have priority over those of the Federal Council. The normal democratic order of competencies is to be restored as soon as possible.
In an extraordinary situation in which Switzerland's existence as a state or the survival of the population is threatened (e.g. in the event of war or the most serious catastrophes), the Federal Assembly can delegate extensive powers to the Federal Council without a constitutional basis ( extra- constitutional emergency law ). The last time this happened was at the beginning of the Second World War.
État d'urgence in France
In France , a state of emergency (état d'urgence) can be proclaimed by law by the President “in the event of imminent danger from serious threats to public order” or “in the event of events which, by their nature and gravity, have the character of a public one Represent a disaster ”. The state can impose curfews and freedom of movement can be restricted. House searches without a judicial decision are just as possible as house arrest for people whose "activity" is considered to be "dangerous to security and public order". In addition, the authorities can impose assembly bans and close concert halls and cinemas. The state of emergency can initially be imposed for a maximum of twelve days. Any extension beyond this must be approved by law. The law regulating the state of emergency was passed in 1955 with the start of the Algerian War. After its end, the state of emergency was imposed three more times in France: in 1985 as part of the unrest caused by the independence movement in the New Caledonia archipelago , which belongs to France , after the 2005 unrest and after the terrorist attacks of November 13, 2015 in Paris .
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- Prussian emergency law
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