States of Emergency in Comparative Constitutional Law

Study:	Civil Law - 9. semester Commercial Law - 9. semester Constitutional-Administrative - 9. semester Criminal Law - 9. semester International Law - 9. semester The European Union Law - 9. semester
Code:	96813
ECTS:	4.0
Course coordinators:	prof. dr. sc. Đorđe Gardašević

Literature:
Đorđe Gardašević; Ograničenja ljudskih prava i temeljnih sloboda u izvanrednim stanjima; Hrvatska udruga za ustavno pravo (2014), str Arsen Bačić; Odredbe o "stanju nužnosti" u Ustavu Republike Hrvatske iz 1990. godine (rekapitulacija), Zbornik radova Pravnog fakulteta u Splitu, god. 34/45-46; Pravni fakultet Sveučilišta u Splitu (1997), str. 39-57 Arsen Bačić; Ustav i ustavna diktatura; Književni krug (1992), str. [object Object] Petar Bačić; Nacionalna sigurnost i derogativna klauzula o pravima čovjeka, Zbornik radova Pravnog fakulteta u Splitu, god. 40 (2003); Pravni fakultet Sveučilišta u Splitu (2003), str. 359-370 Jasna Omejec; Izvanredna stanja u pravnoj teoriji i ustavima pojedinih zemalja, Pravni vjesnik, 12 (1-4), 1996.; Pravni fakultet u Osijeku (1996), str. 172-196 Jasna Omejec; Ograničavanje sloboda i prava čovjeka i građanina u izvanrednim stanjima, Društvena istraživanja, Zagreb, god. 5. (1996.), br. 2(22); Institut društvenih znanosti Ivo Pilar (1996), str. 345-374 Đorđe Gardašević; Američki egzekutivni unilateralizam i "Rat protiv terorizma", Zbornik Pravnog fakulteta u Zagrebu 61 (2011.) 4; Pravni fakultet u Zagrebu (2011), str. 1295-1337 Đorđe Gardašević; Ustav Republike Hrvatske i stanja izuzetka, u: Smerdel, B. i Gardašević, Đ. (ur.), Izgradnja demokratskih ustavnopravnih institucija Republike Hrvatske u razvojnoj perspektivi; Hrvatska udruga za ustavno pravo (2011), str. 61-87 Oren Gross, Fionnuala Ni Aolain; Law in Times of Crisis; Cambridge University Press (2006), str. [object Object]
Optional literature:
Branko Smerdel; PREDSJEDNIK, KONGRES, USTAV I RAT - Ratna ovlaštenja američkog Kongresa u svjetlu intervencije u Libanonu i Granadi, Pogledi 14/1984(1); (1984), str. 5-11 Branko Smerdel; Suvremeni američki Kongres i politika oružanih intervencija - Ustavnopravni problemi i politička zbilja, Naša zakonitost, 37/1984(4); (1984), str. 434-443 Branko Smerdel; Ustavno uređenje europske Hrvatske; Narodne novine (2013), str. [object Object] Đorđe Gardašević; Izvanredna stanja i ustavnopravno uređenje Republike Hrvatske, na str. 433-451., u: Smerdel, B. i Gardašević, Đ. (ur.), Izgradnja demokratskih ustavnopravnih institucija Republike Hrvatske u razvojnoj perspektivi; Hrvatska udruga za ustavno pravo (2011), str. 433-451 Saša Šegvić; Antiterorizam - između sigurnosti i demokracije, Zbornik radova Pravnog fakulteta u Splitu, god. 44, 1/2007; Pravni fakultet Sveučilišta u Splitu (2007), str. 77-86 Saša Šegvić; Normativne ovlasti egzekutive prema vojsci - s posebnim osvrtom na ulogu vojske u obrani državnopravnog poretka, (doktorska disertacija); Pravni fakultet Sveučilišta u Splitu (2002), str Saša Šegvić; O ratnim ovlastima predsjednika SAD nakon terorističkog napada 11. rujna 2001., Zbornik Pravnog fakulteta u Zagrebu, 52 (6), (2002); Pravni fakultet u Zagrebu (2002), str. 1233-1251 Saša Šegvić; Ustavnost izvanrednog stanja, Vladavina prava, Zagreb, 1999., god. III, br. 1.; Zagreb: Lux, 1997-2002 (1999), str Saša Šegvić; Sudska kontrola egzekutive u stanju nužde u SAD - slučaj zatočenika u Guantanamu, Zbornik radova Pravnog fakulteta u Splitu, god. 43, 1/2006.; Pravni fakultet Sveučilišta u Splitu (2006), str. 43-62 Ivan Padjen; Uredbe iz nužde hrvatskog predsjednika: mjerodavnost francuskog javnog prava, Politička misao, Vol XXXIII (1996.); Fakultet političkih znanosti Sveučilišta u Zagrebu (1996), str. 149-165 John E. Finn; Constitutions in Crisis; Oxford University Press on Demand (1991), str. [object Object] Bruce A. Ackerman; Before the Next Attack; Yale University Press (2007), str. [object Object] Giorgio Agamben; State of Exception; University of Chicago Press (2008), str. [object Object] Stewart Abercrombie Baker, John Kavanagh; Patriot Debates; Amer Bar Assn (2005), str. [object Object] Peter Berkowitz; Terrorism, the Laws of War, and the Constitution; Hoover Press (2005), str. [object Object] Albert Venn Dicey; Introduction to the Study of the Law of the Constitution; Theclassics.Us (2013), str. [object Object] Carl Joachim Friedrich; Constitutional Government and Democracy. Theory and Practice in Europe and America. Fourth Edition; (1968), str. [object Object] The Works of John Locke, in Nine Volumes... Volume the First (-ninth); (1824), str. [object Object] Eric A. Posner, Adrian Vermeule; Terror in the Balance; Oxford University Press, USA (2007), str. [object Object] Richard A. Posner; Not a Suicide Pact: The Constitution in a Time of National Emergency; Oxford University Press (2006), str. [object Object] Clinton Rossiter; Constitutional Dictatorship; Transaction Publishers (1948), str. [object Object] Geoffrey R. Stone; Perilous Times; W. W. Norton (2005), str. [object Object] Carl Schmitt; Political Theology; University of Chicago Press (2010), str. [object Object] Bruce Ackerman; The Emergency Constitution, 113 Yale Law Journal 1029 (2004); The Yale Law Journal Company, Inc. (2004), str. 1029-1091 Geoffrey R. Stone; National Security v. Civil Liberties, 95 Cal. L. Rev. 2203 (2007); (2007), str. 2203-2212 Ferejohn, J., Pasquino, P.; The Law of the Exception: A Typology of Emergency Powers, International Journal of Constitutional Law, vol. 2, number 2 (2004); Oxford University Press (2004), str. 210-239 Issacharoff, S., Pildes, R. H.; Emergency contexts without emergency powers: The United States' constitutional approach to rights during wartime, International Journal of Constitutional Law, Vol. 2 (2004); Oxford University Press (2004), str. 296-333 Lobel, J.; Emergency Power and the Decline of Liberalism, 98 Yale. L. J. 1385 (1988-1989); The Yale Law Journal Company, Inc. (1989), str. 1385-1433 Rosenfeld, M.; Judicial Balancing in Times of Stress: Comparing the American, British, and Israeli approaches to the War on Terror, 27 Cardozo Law Review 2079 (2006); (2006), str. 2079-2151

Description:

The notion of states of emergency represents an inseparable part of constitutional law, a fact which is clearly to be seen especially in two basic constitutional consequences that emerge as a result of crisis: on one hand, there appears an extraordinary allocation of competences between various constitutional institutions (usually characterized by concentration of powers on the side of the executive and certain self-restraint by representative bodies and courts - special crisis definition of the principle of separation of powers); on the other hand, there appears a need for restriction of constitutionally guaranteed fundamental rights and freedoms.

At the same time, this reflects the basic importance of states of emergency in relation to the idea of constitutionalism: in its extreme, states of emergency are defined as the so-called "states of exception", characterized by a specific suspension (partial or full) of a normal constitution. Reasons for this, criteria of constitutionally acceptable actions during crisis (as well as defining of a principal crisis actor and its relationship towards other subjects/institutions) and objectives aimed to be achieved through emergency actions (normative objective of preservation of an existing constitutional order and problem of a restoration of an ex-ante constitution) make essential elements of a special theory on the "state of exception".

States of emergency certainly make part of a practice of modern constitutionalism (e.g. War on Terrorism; COVID-19 Pandemic). Such practice, and its reflecting doctrine, however, are not merely a phenomenon of modern age. In its rather articulated form, basis of these problems have already been, at the latest, defined in the Roman age (institution of a dictator), while their subsequent developments include various classical (French state of siege, Anglo-American martial law, crisis delegation of powers, special emergency legislation) and modern models (special constitutional and legislative measures).

The course offers an overview of all basic issues of classical and contemporary notions of states of emergency. On the level of a positive analysis, students acquire knowledge on the notion, constitutional position and consequences of various comparative institutes of states of emergency, (examples of modern democracies: United States of America, France, Federal Republic of Germany etc.). At the same time, within the positive analysis, students are introduced to modern case-law dealing with states of emergency, with special emphasis on differing interpretations of problems which case-law in that context offers. On the level of a theoretical analysis, students examine a gradual development of theories of states of emergency.

Cognitive Skills:

Knowledge and understanding

After successfully completing the course, students will be able to:

recognise and define basic concepts and institutions of states of emergency as they are defined in the area of constitutional law, taking into consdieration classic classical (f.e. Roam institution of dictator, English martial law and French state of siege) and modern institutions (f.e. constitutional and legislative regulation of states of emergency);

recognise and define significant characteristics of individual relevant theories of states of emergency from the developed New age (J. Locke), through classical authors (A. V. Dicey, C. Schmitt, C. L. Rossiter, C. J. Friedrich) until modern authors (modern comparative doctrine of states of emergency), i.e. how they rely on one ofpossible models of approach to the states of emergency (f.e. 'model of accommodation', 'ordinary constitution model' and'model of extra-legal mesures model');

identify and indicate specific differences in approaches to creation of individual institutions of states of emergency, and those contained in different theories of states of emergency that consider them as a phenomenon that tends to a certain conception of the 'state of exception' or as a phenomenon that requires repecting certain parametres of 'constitutional dictatorship' (here the paradigms of two strongly oposed normative views on states of emergency are taken);

group individual institutions, theories or (court) practice according to their basic characteristics, i.e. implications they have on the position of the constitution in general. With regard to institutions, this can be manifested through, for example, provisions about ex ante or ex post regulation and control of states of emergency; through the primarily crisis role of individual specific institutions (executive, legislative and judicial, which is manifested through the formulation of normative directions known as 'executive unilateralism', 'civil libertanism', 'democratic formalism' or even 'extra-legal measures models' in the context of modern theory). With regard to theories, this is primarily manifested in the division to the trends that advocate and justify extra-legal measures and tend towards certain conceptions of the 'states of exception' (or the definition of prerrogative i.e. sovereignty), and those trends that justify building of certain constitutional restrictions and balances, even in cases of states of emergency (f.e. classical notion of 'constitutional dictatorship'). Wiith regard to (court) practice, the division in a certain manner synthetises the aforementioned with regard to institutions and theories, and relates to the possibilities to group the lines of building of relevant court practice depending on the justification or condemnation of adopted emergency measures from the standpoint of the need to build a certain 'state of exception' into a legal system faced with crises, or from the standpoint of the need to avoid such a 'state of exception'and to, accordingly, group court practice depdning on whether it affirms ex ante or ex post regulation and control of states of emergency, and who does it give crucial role in its realisation (executive, judicial or legislative bodies);

explain and discuss the scope and full meaning of the appearance of modern answers to the challenges of states of emergency that occur as a result of conceptualisation of these modern states of emergency as states sui generis.

Application

After successully completing the course, students will be able to:

Interpret the scope and significance of historical experience of states of emergency institutions; the scope and significance of relevant classical theories of states of emergency;

illustrate on examples of individual countries, how the experience of implementing emergency measures was developed and what consequences, influence and significance it had, especially in the context of gradual development of these institutions, from their rudimentary (Roman dictator), through classical (martial law, state of siege) to modern forms (constitutional and legislative regulation);

apply basic characteristics of relevant theories and historical (both past and present) contexts in which they appeared and developed, to concrete examples of theapplication of institutions of states of emergency;

distribute basic trends of the normative and practical development in basic categories of 'legal' and 'constitutional' opn one hand, and 'extra-legal' measures on the other.

Analysis

After successully completing the course, students will be able to:

analyse the scope and full implications of relevant legal consequences of states of emergency and how they are manifested in modern context ('War against Terror'), and especially in the sense of how they relate to two basic consequences (concentration of constitutional powers by the executive branch of government and accordingly restriction ofpowers of the legislative and judivcial bodies; restrictions of fundamental human rights and freedoms);

ascertain which are the causes of (modern) phenomena, such as tendency of concentration of powers by the executive branch and excessive (unproportional) restriction of fundamental human rights and freedoms;

examine possibilities of application of classical theoretical and empirical knowledge about states of emergency to their modern manifestations;

solve concrete issues that are potentially opened with every new manifestation of states of emergency built on the hypothesis that it is a phenomenon sui generis (hypothesis about so-called "unpredictable states of emergency" tha thas continuously been mentoned from classical - J. Locke, J. Rousseau, A. Hamilton, C. Schmidt etc. - to modern authors; accordingly, hypothesis of so-called 'unconstitutionality of states of emergency'); moreprecisely, inevitable issues built on the problem of the tendency to appraoch crises from the standpoint of the theory of 'states of exception'.

Synthesis

After successully completing the course, students will be able to:

distribute possible answers to the challenges of states of emergency viewed through the creation of the role of individual institutions (legislative, executive and judicial) in crises, i.e. appropriate, legitimate and proportional measure of restriction of fundamental human rights and freedoms;

construct meaningful, coherent and consistent answers to the challenges of modern states of emergency, using the scopes of classical theories and arguments of modern theories of these states;

create practical measures of adaptation, correction and further development of states of emergency institutions;

propose aforementioned practical measures of adaptation, correction and further development of states of emergency institutions;

Evaluation

After successully completing the course, students will be able to:

evaluate the scope and practical significance of the application of individual classical and modern institutions of states of emergency;

compare their relative and comparative advantages and disadvantages;

conclude which of them and for what reason (based not only on empirical test, but also on historical experience) is adequate for a certain time frame and experiential area (certain state and constitutional system, depending on the level of development and circumstances within which it functions);

select and recommend concrete institutions in accordance with mentioned parametres (area, time, level of development, historical experience, power of declaratory arguments).

Practical and Generic Skills:

After successful completion of the course, students will be able to understand the reality of constitutional processes in systems faced with states of emergency, which largely applies to two important manifestations. Firstly, highly likely actions of individual governmental institutions (legislative, exceutive and judicial bodies) in the sense of repeating the usual, historically and empirically confirmed and expected patterns of legislative and judicial abatement, and accordingly excessive concentration of powers of the executive. Furthermore, the students will be able to anticipate likely and expected restrictions in the area of protection of fundamental human rights and freedoms, especially in the sense of their contents (concrete types of restricted rights and freedoms), forms (direct restrictions, indirect restrictions, hidden restrictions through methods of abatement to the executive) and scope (the scope of restrictions).

Additionally, the student will develop the sense of consdieration of the phenomenon and influence of states of emergency from other (politological, historical) aspects, and not just strictly legal ones, and thus gain the ability of comprehensive reflection on historical experience, legal regulation in force and possible improvement of constitutional regulation of states of emergency.

Matching Assessments to Learning Outcomes:

Knowledge is assessed through a written examination (so-called open-book exam). The students are expected to come to classes prepared, having previous studied assigned literature and they have an obligation to submit several (2-3) written papers (f.e. an outline of assigned comparative constitutional law issues, abstracts of court practice and so on).

Individual written papers that the students have to submit during the course serve for testing continuous study, and are oriented towards certain focused comparative surveys of constitutional or legislatigve practice of states of emergency, as well as preparation of short overviews of the relevant court practic, prepared on the basis of usual patterns of presentation of such practice.. In that sense, these short written papers are available for presentation, analysis of a constitutional law case or problem, its understanding, categorisation, synthetic presentation and finally evaluation.

Consultations schedule: