The Emergency Paradigm in Crisis: Structural Challenges to the Classical Approach

The classical paradigm of the constitutional regulation of emergency rests on the premise that states of exception could be approached as punctual occurrences, i.e., unforeseeable but isolated and finite disturbances in constitutional regularity. Otherwise put, emergency was in principle approached as a temporary suspension of (some) constitutional norms, followed by and anticipating a return to normality. This logic runs like a consistent thread through constitutional theory, from Roman dictatorship to the Schmittian moment of sovereignty as ”decision on the exception” or Clinton Rossiter’s celebrated volume on the topic. It also informed actual practices, e.g., Lincoln’s suspension of Habeas Corpus during the Civil War, Art. 48 in the Weimar Constitution or Art. 16 in the French Fifth Republic Constitution. Dealing with emergency was the purview and the ‘moment’ of the executive. My paper will test the hypothesis that more recent, deep-seated structural changes have deflected or obfuscated this inherited frame of reference for addressing constitutional exceptionality. To wit, neither terrorism nor economic emergency can arguably be or have been addressed as discrete and temporally or geographically isolated phenomena. Recent attempts to grapple with the perils of cross-border terrorism have for instance stressed mass surveillance as a paramount and ubiquitous solution, in which case the implementation of surveillance policies is the attribute of the relatively autonomous intelligence services. Likewise, recent mechanisms addressing the sovereign debt crisis have entrusted the ECB or networks of international (autonomous) institutions with what are essentially discretion-laden political decisions (e.g., the OMT program of the European Central Bank). This paradigm shift challenges the existing structures and poses the old questions of legitimacy and accountability in a new framework of constitutional semantics. I will structure my argument by analyzing comparatively practices related to economic emergencies and counter-terrorism surveillance legislation in a number of new (with a focus on Romanian developments) and old (with emphasis on British, French, and German constitutional evolutions) EU member states.