State of emergency, state of exception : a critical investigation

Abstract

<ul>In fact, the exercise of emergency powers is a phenomenon common to both democratic and undemocratic governments, the only difference between the two being the presence or absence of check and balances to prevent the abuse and arbitrary use of the emergency powers by the government.1</ul> In order to interrogate how far a state can go in legitimising arbitrariness, it is important to question whether a juridical system can provide its own suspension, as well as critically assess which scenarios provide for a state of exception or a state of emergency since vagueness can be exploited to the detriment of civil liberties of citizens and the rule of law. The main concern of the study refers to the fact that a state of exception and a state of emergency are the common denominator between the state of law, totalitarian state and authoritarian state. Emergencies situations can be considered as a threat for the enjoyment of human rights and fundamental freedoms, because separation of powers, right to a fair trial and accountability are no longer respected. From a theoretical viewpoint, two conceptions manifest themselves; the first being where a state of exception is located within a juridical order and a second location found within an extra juridical approach. Fundamentally, the nature and the function of the state of emergency and the state of exception have therefore to be contextualised for the purpose of legitimacy, accountability and relevance.