August 7, 2006
I've just returned from holidays and I'm trying to ease my way back into philosophy, reluctantly. It is a case of post-holiday blues.
Something to sink one' s teeth into whilst I get back into my stride--- an article on German constitutional law and the state of emergency in the German Law Journal. The article is entitled 'German Constitutional Law and Doctrine on "State of Emergency": Paradigms and Dilemmas of a Traditional (Continental) Discourse - Part I/II'.
Andras Jakab, the author, states the problem of the state of emergency and constitutionality succinctly:
Certain situations can so threaten the constitutional(ity of the) state that the binding constitutional provisions cannot, or at least, not with the necessary speed... handle state of emergencies sufficiently... The possibility of such situations, thus, requires the adoption of regulations (laws on state of emergency), which permit circumvention of such binding provisions (effectivity), but which also safeguard against abuse of such circumvention...The fundamental dilemma of law on state of emergency asks where the balance is to be struck between these two needs.... The actual objective of state of emergency law should be to secure the route back to the "normal" constitutional state...
The article is concerned to explore the fundamental dilemma--- a state of emergency triggers a dangerous legal mechanism that is very susceptible to abuse. Hence the concern is to manage an emergency effectively. This gives rise to a balancing of efficacy versus fear of abuse.
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