As to the epistemic/ontological dimension of Emergency Powers, the crucial
question can be phrased in the following terms: What is an exception or an
emergency? It seems clear that the question here is not a purely legal one—
some factual state of aVairs plays an essential role in justifying special
procedures—so the answer can not simply be ‘‘derogation.’’ 32
Some authors claim that it can be answered objectively: If Hannibal is ‘‘ad
portas’’ of Rome, there is an objective emergency, like those announced
according to Hobbes (in theLeviathan’s Dedicatory Letter to Francs God-
olphin) by the ‘‘simple and impartial creatures in the Roman Capitol, that
with their noise defended those within it!’’ Likewise if the Red Army had
crossed the border of West Germany, it would have been legitimate to apply
article 115 of theBonner Grundgesetzt(which was intended to deal precisely
with this, now defunct, possibility). Nonetheless, how one should interpret
‘‘ad’’ (portas) is tricky. ‘‘Ad’’ means not far, but what does it exactly mean?
Was it not true that Charles I was claiming that the Kingdom was facing an
emergency because the DutchXeet was ‘‘ad portas,’’ threatening the English
coasts? It seems that interpretation, and controversy, cannot be eliminated.
It seems to us that the only way to cope with the problem is to abandon the
illusion that an emergency is a kind of ‘‘fact’’ and accept that we have
procedures for deciding whether a constitutionally signiWcant emergency
exists: the politically accountable organs will necessarily have to make the
epistemic judgment of whether or not an emergency exists that would justify
the invocation of emergency powers. Within modern constitutions, of course,
these decisions are regulated, eventually, by voters and courts.
References
Ackerman,B. 2004. The emergency constitution.Yale Law Journal, 113 : 1029 – 91.
Epstein, L., Ho, D. E., King, G., and Segal, J. A. forthcoming.The Supreme Silence
During War.
EuropeanCommission forDemocracy throughLaw 1995.Emergency Powers.
Strasbourg: Council of Europe.
Farber,D. 2003 .Lincoln’s Constitution. Chicago: University of Chicago Press.
Goldsworthy,J. 2001 .The Sovereignty of the Parliament: History and Philosophy.
Oxford: Clarendon Press.
32 Derogation is a legal act, but whether the concrete situation demands derogation or not depends
on a circumstantial decision that no law can fully prescribe and specify.
emergency powers 347