chapter  6
19 Pages

Uncertain futures and the problem of constraining emergency powers: temporal dimensions of Carl Schmitt’s theory of the state of exception

ByMarc de Wilde

This chapter argues that the failure to constrain emergency powers can only be adequately explained if its temporal assumptions are taken into account. Emergencies are thus often believed to be inherently unpredictable. The chapter discusses the general belief that there can be no ex ante legislative restrictions on executive emergency powers by tracing it back to its source. It offers a genealogical critique of Carl Schmitt's theory of extra-legal emergency powers and its underlying temporal assumptions. The chapter demonstrates that Schmitt's claim that emergency powers are essentially extra-legal depends on a notion of exceptional time, which is highly problematic from a rule of law perspective. It also considers Schmitt's thesis about the extra-legality of emergency powers by criticizing its underlying assumption that emergencies are inherently exceptional and unpredictable, such that they cannot be anticipated by the legislator, nor subjected to ex ante rule of law-constraints.