Emergencies and the Rule of Law

Abstract

Despite scholarly disagreements over the meanings of both the rule of law and emergency, there is broad agreement that emergencies often invite and justify departures from the formal requirements and substantive values identified with the rule of law as a normative ideal. It is often argued that strict adherence to existing laws, which are typically enacted during periods of normalcy in order to prevent arbitrary forms of rule associated with tyranny, could inhibit the government’s ability to respond quickly and effectively to the often unexpected and extraordinary challenges posed by an emergency such as war or natural disaster. Consequently, the temporary use of extraordinary measures outside the law has been widely accepted both in theory and in practice as long as such measures aim to restore the normal legal and political order. However, understandings of the tension between emergency and the rule of law have undergone a significant shift during the 20th century as emergency powers increasingly get codified into law. The use of extralegal measures that violate the formal and procedural requirements of the rule of law is still considered a dangerous possibility. However, as governments have come to rely increasingly on expansions of power that technically comport with standards of legality to deal with a growing list of situations characterized as emergencies, there is concern that extraordinary exercises of power intended to be temporary are becoming part of the permanent legal and political order.

Responding to Covid-19 in India: Reducing Risk or Increasing Domination?

“…It highlights how the content and scope of both the DMA and EDA neither make provisions for, nor legally sanction the various risk-containment measures imposed by Indian government during the pandemic, such as the quarantine, lockdown, restriction of movement, shutting down of essential businesses. Despite new amendments to the EDA that took force from 22 15 https://www.nytimes.com/interactive/2021/world/india-covid-cases.html 16 It is usually acknowledged that during an emergency like the pandemic, states can deviate to some extent from the rule of law, along with bypassing ordinary processes of law making and suspending liberties of individuals (Fatovic, 2020). In fact, a number of countries including Spain, France, New Zealand, Estonia, Latvia to name a few declared a national state of emergency to tackle Covid-19 outbreak.…”

“…It is widely accepted that no legal systems ever live up to the ideal of a perfect law. Some degree of vagueness and indeterminacy in law is inescapable (Fatovic, 2020). Moreover, we cannot demand legal regulations to be too specific-if they were too specific, it might make it harder to apply them when the situation at hand changes rapidly and the law takes time to be updated.…”