The law of the exception: A typology of emergency powers

Ferejohn, John; Pasquino, Pasquale

doi:10.1093/icon/2.2.210

Cited by 229 publications

(123 citation statements)

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“…Thus, from the incumbent executive's perspective at the time of choosing s, W is a random variable . 29 Given this reelection rule, we next show that the probability that the incumbent executive is reelected is higher if the observed outcome in the current period is T = 0 rather than T = 1.…”

Section: Micro-foundation For the Voting Rulementioning

confidence: 93%

“…And if the challenger is elected, the next period equilibrium (s n C , i n C ) does not depend on θ I |T = j as well. 29 That is, if the executive is uncertain about the challenger she will face when choosing the current period s, the executive will be uncertain about the valence difference W = W I − W C at the time when choosing s.…”

Section: Micro-foundation For the Voting Rulementioning

confidence: 99%

“…Scholars, policy experts, and even ordinary citizens ponder this question whenever security emergencies arise (Ferejohn and Pasquino 2004). It becomes most compelling when governments seek to prevent a security crisis rather than simply react to it (Posner 2006).…”

Section: Introductionmentioning

confidence: 99%

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The Rule of Law in the Fight against Terrorism

Dragu

Polborn

2013

American J Political Sci

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What is the role of legal limits on executive power, if any, when citizens demand more security from terrorism and allowing executive officials legal flexibility of action appears necessary to achieve it? We develop a game-theoretic model to show that when the executive faces increased electoral incentives to provide security and has legal flexibility to choose any policy it finds optimal, security from terrorism can actually decrease. In contrast, when the executive faces increased electoral incentives to provide security and there is an explicit legal limit on executive counterterrorism activities, security from terrorism increases. We also show that the executive achieves the objective of terrorism prevention more effectively when there are some limitations on its counterterrorism powers. The article provides a security rationale for legal limits on executive power and has implications for understanding how to design the institutional structure of liberal governments when the social objective is terrorism prevention.

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Section: Micro-foundation For the Voting Rulementioning

confidence: 93%

Section: Micro-foundation For the Voting Rulementioning

confidence: 99%

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The Rule of Law in the Fight against Terrorism

Dragu

Polborn

2013

American J Political Sci

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“…The assumption that existing antiterrorist legislation fails to prevent the 2015 attacks feeds into the state of emergency's image as a preferred pathway to a 'zero-risk' environment, giving purely legislative measures a secondary role. Ferejohn, Pasquino, and Munro (2004) note that this would also not be without precedent -historically, what distinguishes France among other major democracies such as Germany, Britain, and the United States is its more recent use of constitutional emergency powers in 1961, as a response to the generals' putsch (p. 210). Indeed, during De Gaulle's invocation of Article 16 in 1961, there is a clear shift between a real and fictitious state of exception -to this day, DILA (2017) -a French government administration -openly admits that "only a few days after the activation of Article 16, public powers had returned to their original functioning", meaning that its eventual five month duration was the product of abusive prolongation (para.…”

Section: The Role Of Antiterrorist Legislationmentioning

confidence: 99%

Finding the Limits of France's State of Emergency

Bozinovic¹

2017

URCEU

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Since 2015, France has experienced a particularly high number of terrorist attacks. This paper examines the French state response to such events and analyzes its effect on the relationship between civil liberties and national security. The activation of the state of emergency -as an exceptional measure that suspends warranted searches and certain freedoms -highlights a potential impediment to reconciling France's national values such as liberté with the urgent need to mitigate terrorist activity. Following the fifth consecutive renewal of this exceptional measure in December 2016, a close scrutiny of its legitimacy, its effectiveness, and its objectives is both timely and warranted. I thus ask the following two questions: In what ways have exceptional crisis measures been historically entrenched in the French socio-political order? In the aftermath of the attacks of November 2015, how does the state of emergency build on these measures and normalize the use of inherently exceptional policies? KeywordsFrance, terrorism, state of emergency, human rights, democracy, HollandeFinding the Limits of France's State of Emergency 1 4 Filip G. Bozinovic University of Caliofrnia, Berkeley IntroductionThe state of emergency in France -an exceptional measure that revives Napoleonic-era executive and policing powers and suspends certain liberties -serves as a particularly interesting case study of the evolving relationship between legal and political arsenals' response to precarious situations. Whereas exceptional measures typically respond to situations -such as a hot war -in which the prospect of a state's survival is threatened and citizens' daily life is halted, France is responding to a decades-old threat of terrorism with an approach that draws on a particular and contemporary interpretation of war. In the self-proclaimed "democratic and social republic" (Constitution of October 4, 1958, Art.1), the relatively low level of public opposition to exceptional measures that endure five consecutive prolongations since 2015 is noteworthy and anomalous. For this reason, the origins and theories behind exceptional measures in France are worthy of analysis in order to understand and contextualize their present application. France's historical construction as a pioneer of the legalization project of military government following the Revolution of 1848 is better understood through a solicitation of existing literature. Agamben (2005) and Rossiter (1948) situate the theories of exceptional measures in a historical context, explaining France's prominent position in the construction of the politics of necessity, exception, and social order. In this paper, I draw upon existing scholarly work, founding documents of the French Republic, statutes, and political discourses in order to analyze the coexistence of democratic values and exceptional laws in France today, using entrenchment and normalization as central foci. In this way, I seek to understand the processes by which entrenched exceptional measures feed into the potentially ...

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“…For a prominent example of such recognition by avowedly liberal constitutionalists, and suggestions for coping in a structural way with emergency, see Bruce Ackerman, The Emergency Constitution, 113 [Vol. 95:235 requiring ever-greater majorities for ever longer incursions into ordinary rights, is one possibility.'…”

mentioning

confidence: 99%

Torture, Necessity and Existential Politics

Kutz

2005

SSRN Journal

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The law of the exception: A typology of emergency powers

Cited by 229 publications

References 0 publications

The Rule of Law in the Fight against Terrorism

The Rule of Law in the Fight against Terrorism

Finding the Limits of France's State of Emergency

Torture, Necessity and Existential Politics

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