States of Emergency - Centre for Policy Alternatives

outcome in concrete cases between times of crisis and normality.
It is perfectionist in the sense that it presumes that the
constitution anticipates every conceivable challenge, including
those presented by an emergency.
Finally, the ‘extra‐legal measures’ models are those that are
prepared to contemplate extra‐legal or even extra‐constitutional
action during times of crisis. Gross and Ní Aoláin discuss several
sources of the extra‐legal model, some of which have respectable
ethical, moral and political foundations. Indeed, in one view of the
British concept of martial law, actions during times of emergency
could be entirely outside the ordinary legal system but yet be
justiLied by the necessity and nature of the power used. However,
for reasons already canvassed in the previous chapter, we focus on
the theoretical challenge to liberal constitutionalism posed by Carl
Schmitt in his theory of emergency powers.
2.1
Models
of
Accommodation
The groups of models represented by the models of
accommodation are those that have dominated the discourse
regarding the treatment of emergency powers in democratic
regimes. These are concerned with addressing the tension
between emergency powers and democratic values. More
speciLically, these models, with varying institutional mechanisms
and degrees of equilibrium, seek to strike a balance between the
recognition of the need for extraordinary powers during times of
crisis and the need to preserve the democratic core of the
constitutional order. They are therefore essentially about an
appropriate trade‐off between the competing values of order and
liberty. The overarching objective of emergency powers is the
preservation of the constitutional order in a manner that does not,
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