One of the classical postulates regarding emergencies is the perception of unpredictability of both their causes and consequences. This implies that, according to the dominant perception, real emergencies cannot be foreseen, and consequently, new tools to combat them are required. In this paper, we give some general observations on possible interpretative approaches to emergencies and present classic arguments from American theories—executive unilateralism, civil libertarianism, democratic formalism, and process-based approach. The point of divergence among their proponents is found in a different evaluation of the separation of powers and judicial review mechanisms. Furthermore, we examine the work of selected modern authors and link the issues raised by them with regard to the COVID-19 crisis to the arguments of some earlier authors. Finally, we give examples from the case law from the pandemic period of several European courts. Thus, we show that normative approaches to emergencies, regarding specific roles of particular institutions and seen in a historical perspective, often revolve around rather similar opposing arguments and focus on certain issues that have been objects of analysis for a long time. We suggest that emergencies are not terra incognita, unsuitable for an appropriate legal regulation.

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Constitutional Interpretation of Emergencies: Sustainability of Typical Arguments Over Time

  • Djordje Gardasevic and ,
  • Dora Pavković

摘要

One of the classical postulates regarding emergencies is the perception of unpredictability of both their causes and consequences. This implies that, according to the dominant perception, real emergencies cannot be foreseen, and consequently, new tools to combat them are required. In this paper, we give some general observations on possible interpretative approaches to emergencies and present classic arguments from American theories—executive unilateralism, civil libertarianism, democratic formalism, and process-based approach. The point of divergence among their proponents is found in a different evaluation of the separation of powers and judicial review mechanisms. Furthermore, we examine the work of selected modern authors and link the issues raised by them with regard to the COVID-19 crisis to the arguments of some earlier authors. Finally, we give examples from the case law from the pandemic period of several European courts. Thus, we show that normative approaches to emergencies, regarding specific roles of particular institutions and seen in a historical perspective, often revolve around rather similar opposing arguments and focus on certain issues that have been objects of analysis for a long time. We suggest that emergencies are not terra incognita, unsuitable for an appropriate legal regulation.