Abstract
The article deals with the question of whether emergency governance takes place within the sphere of law or whether it is a purely non-legal phenomenon. The article addresses this issue in three parts.
The first part summarizes the dispute about the essence of law in the theory of emergency governance. Conclusion of this part is that the individual approaches of emergency government's academics depend on the respective conclusions of individual legal-theoretical and legal-philosophical directions.
For this reason, the article chooses the normative institutionalism of Ota Weinberger and Neil MacCormick as its theoretical basis, enriched with observations by Scott Shapiro's Planning Theory of Law. The second part of the article therefore evaluates the concept of non-lawfulness (extra-lawfulness) from the positions of these theories, concluding that the concept of non lawfulness (extra-lawfulness) is in fact dual - non-lawfulness in the simple sense and non-lawfulness in the qualified sense (extralegality).
The third part of the article is then devoted to the simple non-lawfulness of emergency governance, specifically the critique of the so-called exceptionalist decisionism in the interpretations of the works of Carl Schmitt and Giorgio Agamben, as well as the so-called exceptionalist republicanism. Attention is also paid to the issue of so-called legal black holes.
With all these approaches, the article concludes that they are not able to fully defend the essential simple non-lawfulness (extra-lawfulness) of emergency governance. After that, the article presents additional arguments against the understanding of emergency governance as completely extra-legal.
Firstly, the article shows the general impact of practical information on human behavior, including emergency governance. The article then concludes that the non-lawfulness (extra-lawfullness) of emergency governance is not acceptable for a systemic approach to law.
Finally, the article rejects the non-lawfulness (extra-lawfullness) of emergency governance by pointing to the institutional reality of law, especially in view of our historical experience with emergency governance and the current institutional reality.