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The Rule of Law in Times of Crisis

A Legal Theory on the State of Emergency in the Liberal Democracy

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This article aims to contribute to the theoretical discussion about the rule of law and about its definition by looking at situations where the rule of law is put to the test – states of emergency. States of emergency and laws of exception have specific characteristics, one fundamental characteristic being that legislative power is shifted to the executive – in other words, democracies become less democratic. By analysing the principle of the rule of law in conjunction with the nature of emergencies and the structure of states of emergency, their interconnection will become more transparent. It will logically demonstrate that rules regarding states of exception concern only liberal democracies and that the rule of law has to continue its rule also within times of crisis. I will argue that there is no democracy without a conception of the rule of law. The rule of law only works in democracies and is therefore inapplicable to authoritarian regimes. Having established that, this article adds to the legal-theoretical understanding of the rules of emergency powers by elaborating them on the basis of the concepts democracy, rule of law and separation of powers.
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Document Type: Research Article

Publication date: January 1, 2012

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  • Archiv für Rechts- und Sozialphilosophie, edited by authorisation of the International Association for Philosophy of Law and Social Philosophy (IVR), is an international, peer-reviewed journal, first published in 1907. It features original articles on philosophical research on legal and social questions, covering all aspects of social and legal life.
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