Law, democracy, and the state of emergency. A theory-centred analysis of the democratic legal state in times of exception

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The renewed scientific discussion about the state of emergency has led to many theoretical endeavours, which attempted to find appropriate descriptions of the exceptional phenomenon. However, because of this enormous diversity, their object-related connection threatens to become blurred. An essential reason for this lies in the interdisciplinary entanglement of the discourse. The aim of this article, therefore, is to formulate a meta-theoretical regulatory proposal to compare these competing legal-philosophical and political-theoretical explanatory approaches and to prove its suitability on the basis of the dispute between Otto Kirchheimer and Carl Schmitt in the last days of the Weimar Republic. The two authors act as representatives of two mutually exclusive theoretical perspectives, leading to significant differences in the descriptive and evaluative assessments of the state of emergency.

As a result, it will become clear that the recognition of the threat to the rule of law and democracy in times of emergency depends heavily on the respective perspectives on legal and democratic theory, and that the normative conclusions can diverge massively despite similar diagnoses. Thus, without fundamental conceptual clarifications and reflections on the underlying premises, it is not possible to talk meaningfully about the connection between law, democracy, and the state of exception.
Translated title of the contributionRecht, Demokratie und Notstand: Eine theoriezentrierte Analyse des demokratischen Rechtsstaates in Ausnahmezeiten
Original languageEnglish
JournalZeitschrift für Politikwissenschaft
Issue number4
Pages (from-to)423-437
Number of pages15
Publication statusPublished - 12.2018