chapter  10
12 Pages

Immediacy, potentia and constraining emergency powers

ByBas Schotel

This chapter explores how the tendency of emergency powers becoming permanent is reinforced by another temporal dimension, namely immediacy. It provides a brief schematic explanation of how public law enables and constrains public power in times of normality, when emergency powers do not apply. The enabling and constraining functions are linked to law's normal temporal categories of ex ante and ex post. Emergencies tend to elude these temporal categories, catering to more permanent emergency powers. The chapter discusses the nature of factual actions, potentia and immediacy. It shows how already in times of normality, factual actions and potentia defy law's normal constraints and temporal categories. The chapter also explores how the combination of potentia and emergency produces a logic of permanent immediacy, which in turn makes it difficult to put legal constraints on emergency powers. It argues that the perverse temporal effects on the law's capacity to constrain emergency powers are reinforced by the use of factual actions and potentia.