Crisis Resolution Without Basis in Positive Law? Extra-Legal Measures Model for Resolving Crises and the Suprapositive State of Exception
Abstract
In the 21st century, we have witnessed a significant boom of the state of exception as regards both its practical application and theoretical research. Following the famous sentence of Walter Benjamin on the normalization of the exception and reflecting the reaction of public authorities to the attacks of September 11, 2001, a number of prominent authors issued a warning that we are - perhaps even without noticing it - living in a state of permanent exception (Giorgio Agamben), which leads to the erosion of the Rechtsstaat. Over the years, other security, financial and health crises apparently further contributed to this impression.
Given the growing reservations towards the classical institution of the regulated state of exception, several authors have presented competing models for resolving crises. Among them, especially the so-called "Extra-Legal Measures Model" by Oren Gross, which resembles to some degree an older proposal by Gertrude Lübbe-Wolff, received considerable attention. They are both convinced that in the case of a Rechtsstaat, crises should not be resolved based on the classical regulated state of exception, but rather extra-legal action which can be ratified ex post (Oren Gross).
In my paper, I will sketch the above-mentioned approach as well as its motives and offer an answer to the question of whether it is more capable of contributing to the long-term provision of the Rechtsstaat compared to the classical regulated state of exception. Furthermore, I will ask the question of whether extra-legal actions of public authorities can be vindicated at all in the case of a Rechtsstaat, under what circumstances and on what legal grounds (this question is relevant particularly in states lacking regulated states of exception or relying on enumerative states of exception, such as the Czech Republic or Germany). In this context, I will focus on the concepts of the so-called "übergesetzlicher Notstand" and "Staatsnotstand" or "Staatsnotrecht".