Abstract
This book delves into the subject of emergency governance within the context of constitutional theory, drawing from the legal-positivist Theory of Normative Institutionalism and the Planning Theory of Law. Incorporating insights from Czech (Czechoslovak) legal academia, practice, and recent global experiences with the systemic risks including the health risks (such as recent COVID-19 pandemic), the publication examines the fundamental aspects of emergency governance.
In the first part of the book, the inquiry revolves around the essence of emergency governance. It portrays governance as an action that shapes the behaviour of a universal public institution, the state, guided by descriptive and practical information that depicts a specific situation. The central theme of emergency governance is introduced as a distinct image of the world - the emergency situation (emergency) - that necessitates urgent measures to suppress the impending threat. The book subsequently defines an emergency situation as a present, urgent, and exceptionally intense peril capable of causing harm to the entity it targets (i.e. the reference object). Various issues concerning the concept of emergency are explored, including the identification of the reference object, the presumed short-term nature and unpredictability of emergency situations, and their relation to the precautionary principle. Additionally, the book introduces a new classification of emergency situations based on the intensity of the security threat and its duration. Moreover, it seeks to justify the existence of emergency governance and delves into the challenge of its permanence.
The second part of the book examines the relationship between emergency governance and law. It addresses the question of whether emergency governance inherently lies beyond the scope of the law, or if it merely should be executed through extralegal means. The work critically analyzes existing perspectives on the extralegal nature of emergency governance, ultimately concluding that it is necessary to differentiate between essential and preferential extra-legality in this context. It uses the distinction between essential extra-legality, arising from the nature of emergency governance, and preferential extra-legality, driven by perceived advantages for emergency governance. Rejecting theories that support essentialist simple extra-legality or preferential extra-legality of emergency governance, the book contends that emergency governance can and should be evaluated in terms of its conformity with the legal order. Moreover, it argues for the regulation of emergency governance through explicit and specific (constitutional) legal rules, although acknowledging that certain instances may allow for emergency governance even in the absence of specific legal or constitutional provisions. In these cases, the book examines the concept of a state of constitutional necessity.
The third part of the book focuses on specific models of emergency governance. It investigates the various approaches through which emergency governance can be executed and explores the suitability of different modes. The book summarizes existing classifications of emergency governance models and introduces classification based on the role of time and the nature of the normative-institutional regime. Drawing from experiences in mitigating the coronavirus pandemic in the Czech Republic and other parts of the world, the book concludes with practical recommendations for appropriate normative-institutional settings for emergency governance in constitutional republics.
In summary, this comprehensive book offers valuable insights into emergency governance from a constitutional theory perspective, combining theoretical analysis with practical considerations and relevant real-world examples.