Covid-19 and the state of exception

Description

Fear over autocratization has increased during the current wave of Covid-19. As a consequence of the pandemia, some states have proclaimed (and some meanwhile lifted) a state of emergency as a means to establish a legal framework for exceptional measures of disease prevention, mitigation, and suppression. Aiming to add to existing enquiries into the nexus between autocratisation and the state of emergency, the paper explores the legitimacy conditions of the use of such a tool, taking into account some relevant procedural differences that occur from state to state. The paper proceeds in three steps.
In a first step, the paper reconstructs the legal tools used by two different states during the Covid-19 emergency, taking Portugal as an example of a fully “parliametarised” state of emergency, and Italy as the example of a state with a different, and in some respects lower, level of parliamentarisation of the state of emergency. It illustrates the restrictions to fundamental rights that both states imposed, and the different checks and balances that go along with these legal tools in the specific cases of Italy and Portugal.
In a second step, the paper recalls the main features of the classic Schmittian theory of the state of emergency as a state of exception and the controversy that opposed it to Kelsen’s theory of constitutional power. To this effect, the paper also considers later commentators of Schmitt’s theory such as Herbert Tingsten and Carl Friedrich (a.O.), up to Agambem. The paper thereby casts light on the difference between constitutional order and chaos/ arbitrariness, “norm” and “decision” (i.e. the scope and boundaries of a legitimate authoritative decision under different legal circumstances), and, finally, “sovereign” and “normativity” vs. “legality”.
In a third step, the paper compares again the Portuguese and the Italian example against this theoretical background, and points out a number of legitimacy conditions for the state of “exception”: its temporariness, the constitutional checks and balances that regulate its implementation, the justiciability of the authoritative decisions taken during its validity, and the legal limits of the latter. The comparison between the two countries allows to add a further legitimacy condition to the fundamental rights restrictions that a state of emergency can carry along. This condition consists in the efficacy of the measures taken. The paper concludes that a well-ordered and fully parliamentarised state of emergency has an edge over a less well regulated and parliamentarised state of emergency, if its statutory regulations help decision-makers establish a clearer and more effective chain of command, a more consensual use of the legal tool, and an ex-ante parliamentary scrutiny of the measures taken. The paper contributes to the existing literature on the topic in that it points out a number of legal and political conditions for a trustworthy use of such a tool under conditions similar to the current pandemic.

Period	27 Nov 2020
Held at	Österreichische Gesellschaft für Politikwissenschaft, Austria
Degree of Recognition	International