States of Emergency - Centre for Policy Alternatives

normality and in the exercise of ordinary governmental powers let
alone emergency measures, it would seem that the assumptions
made in respect of political culture and commitment to
constitutional behaviour made by Gross and Ní Aoláin do not exist.
For example, in Sri Lanka, large parts of the constitution including
the procedures for ensuring good governance under the
Seventeenth Amendment, or devolution under the Thirteenth
Amendment, remain unimplemented, ignored or deliberately
violated for reasons other than those pertaining to an emergency
threatening the life of the community. Therefore, it is perhaps too
much to ask of political culture that it will ensure liberal
democratic expectations once normality is restored (if ever), so as
to justify the rationalisation of an extra‐legal source of power
during emergencies.
This particular conception of the extra‐legal model lead Gross and
Ní Aoláin to argue that the theory of emergency power advanced
by Carl Schmitt is not an extra‐legal theory of emergency power
properly so called, or that it is even a real legal theory. It is a
powerful critique of Schmitt, which illustrates the appalling
consequences of theories that seek to rationalise absolute power.
There is no need for us to pursue this theoretical debate as to
whether Schmitt’s theories are an extra‐legal model properly so
called or not. We discuss Carl Schmitt’s theory of the state of
exception, sovereignty and the concept of the political, as an extralegal
model, for the reasons that Schmitt’s critique of liberalism
raises profound questions regarding the assumption that law and
legality are the source of legitimate political power, and in the Sri
Lankan context, the theoretical insights his work gives about
notions of extra‐legal authority and the permanence of the
exception, i.e., the state of emergency.
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