States of Emergency - Centre for Policy Alternatives

“For a legal norm to exist, a normal situation must exist.” 68 Crisis
situations are by deLinition where the normal state of affairs does
not exist; in turn, this invalidates any existing legal norms. This is
how, according to Schmitt, the a
 priori rules of the existing legal
order ceases operation in, and cannot regulate, the state of
exception. Therefore, the state of exception is norm‐less.
In the state of exception so deLined, the sovereign dictator enjoys
unlimited powers; the logical result of an absence of any
constraining legal norms. As Gross and Ní Aoláin state, “Such
unlimited powers pertain both to his unfettered discretion as to
whether an exception does, in fact, exist, and to what measures
ought to be taken in order to counter the concrete threat. In taking
such counter‐measures, the sovereign dictator is not limited by
the existing legal order. He may disregard existing norms, but he
may also put in place substitute norms. The powers of the
sovereign dictator are not conLined to the power to suspend, but
also encompass the power to amend, revoke, and replace.” 69
The conLlation of the discretion to determine the existence of a
state of exception, and the extent of measures needed to deal with
it in the hands of the sovereign dictator, has signiLicant outcomes.
In the Schmittian political worldview outlined above, the
sovereign dictator must always be vigilant against the enemy, who
can strike at any time. This requirement of near‐paranoia on the
part of the sovereign dictator means that the inevitability of an
exceptional situation can lead the dictator to declare an
emergency at any time. Indeed, since he is the exclusively
competent authority on the existence of a state of exception, he
can even make it into the general norm. Once the state of
68
Schmitt (1985), op cit., p.13
69
Gross and Ní Aoláin: pp.164‐165
60