States of Emergency - Centre for Policy Alternatives

exception has been declared by the sovereign dictator, he both
decides which powers he should have and how they should be
exercised. There are no norms of any kind, based on a liberal
abstract rationality or otherwise, that restrict his exercise of
power in any way, apart from the personal attitude to restraint of
the sovereign dictator. Thus as Gross and Ní Aoláin conclude, “…
while Schmitt’s rhetoric speaks of the normal case and of the
exception as two separate and distinct phenomena, his theory
virtually advocates the complete destruction of the normal and
substitution by the exception.” 70
In Kelsen’s contemporary critique, he argued that Schmitt’s theory
of the exception on the basis that its effect was to render the
constitution and legal norms, except those relating to emergency
powers, is completely redundant. In the context of the Weimar
constitution, Kelsen pointed out how Schmitt’s theory reduced the
constitution to nothing more than Article 48 (which, as we discuss
in the next chapter, set out a notorious and much abused regime of
emergency powers). 71 Kelsen was perhaps too sanguine about the
extent and logical conclusion of Schmitt’s argument. The sovereign
dictator in the (permanent) state of exception was unbounded by
constitutional or legal norms. In the light of this arbitrary normsetting
institution, there is not much use for any constitution. 72
From Dyzenhaus’s critical look at how liberal legal systems (in this
case Commonwealth jurisdictions and the United States) with
avowed commitment to the rule of law have responded to Carl
Schmitt’s challenge – that in times of emergency it is in the nature
70
Ibid, p.166
71
John P. McCormick (1997) Carl
Schmitt’s
Critique
of
Liberalism:
Against
Politics
as
Technology
(New York: Cambridge UP): p.144
72
Gross and Ní Aoláin: p.166
61