030654 KU Emergency Laws in Comparative Perspective (2019W)

Do exceptional times require exceptional measures? And if so, how can we limit the inevitable damage to the ordinary legal and political system? These old constitutional questions are often conflated with the recent phenomenon of global terrorism, but they pertain to a much broader set of threats to the integrity of state and society, from natural disasters, war, economic collapse to, more controversially, migration and related issues.

This course offers a broad historical and geographic overview of the concept of emergency laws from the Roman republic to contemporary times, and from liberal democracies to autocracies. Perhaps counter-intuitively, explicit emergency laws are not the prerogative of (Western) liberal constitutional democracies, but can be found and are taken seriously by decision-makers in very different types of states. Balancing rights, procedural safeguards and freedom with security in order to better respond to existential threats turns out to be a fairly universal functional challenge of any effective state.

This course will examine different theories of emergency powers, illustrated by international case studies of exceptional crises. We will examine how different responses to exceptional security threats have challenged liberal concepts of democracy and the rule of law and, in some cases, international human rights law. This underlying balancing is contrasted with the similar but distinct calculation occurring in non-liberal entities.

In order to better understand how the State can or should respond to international terrorism and other security threats, this course will examine the major theoretical paradigms of emergency powers: the “extra-legal” model, the “legislative” model, the “neo-Roman” model, the “rule-of-law” model, and the “authoritarian” model. In turn, these models will be considered in connection with specific historical events, in order to assess their effectiveness and drawbacks in simultaneously responding to emergencies and protecting the constitutional status quo, not least the rule of law and/or liberal democratic values.

At the conclusion of the course, students should have acquired the ability to:

• Identify and analyze complex and concrete legal problems surrounding different states of emergency, in their historical contexts;
• Present the wider policy and legal arguments behind the different theoretical models of emergency powers;
• Put the current controversies about States responses to terrorism into historical, national, and international perspective, in order to test the relevance of different emergency powers theories;
• Analyze the impact of different emergency powers upon the concept of liberal democracy and the rule of law, consider their links to illiberal or authoritarian regimes, and understand their relationships to the nature of the State itself;
• Argue carefully and logically for and against specific legal positions in factual context, present the theoretical foundations for those arguments, and make reasoned choices in terms of public policy;
• Formulate and communicate ideas and legal issues;
• Utilize international and foreign legal materials, and historical accounts, in a coherent, competent, and professional way.