The Concept of Constitutional Emergency: Towards an Argumentative Approach
摘要
Whatever they are officially called in the nomenclature of the respective legal systems, and independently from the exact circumstances they address, “states of emergency,” “states of siege,” “states of necessity,” “states of exception,” “states of alarm,” etc., have become increasingly commonplace. Prior to any technical or normative discussion about the opportunity of this or that institutional design, there is the question of the “nature” of constitutional emergency. A traditional approach adopts a Platonist perspective on this topic. It intends to identify the unique and true definition of an emergency. This strategy, which is adopted by legal doctrine as well as by legal actors, leads to a deadlock. As a close study of this kind of discourse reveals, either a “real” emergency does not exist, or there is no way of knowing it with certainty. This contribution offers an alternative, argumentative strategy. A first step consists of examining the structure of the “concept(s)” of emergency that legal actors use. Based on Gottlob Frege’s distinction between connotation and denotation, it reveals that only the connotation of the term “emergency,” that is, its expressing a form of “green light” for specific actions and decisions, is truly relevant in practice. What phenomena the term designates (earthquake, terrorism, public health, civil war, economic collapse, etc.) is, in fact, relatively indifferent. Consequently, the second stage of the proposed analysis consists of a pragmatist examination of what legal actors “make” of or "do with" emergency. The respective argumentative strengths (immense, intense, discriminating, and restrictive characters) and weaknesses (temporary, exceptional, self-destroying, and finalized characters) of the argument of emergency are assessed. Depending on which actor resorts to the vernacular of emergency, the very same idea can be used in a plurality of strategic ways. Constitutional emergency thus testifies to the fact that legal discourse is not necessarily a language that denotes things. It largely belongs to the persuasive, justificatory, and even emotional discourse.