STATES OF EMERGENCY IN COMPARATIVE CONSTITUTIONAL LAW:
States of Emergency in Comparative Constitutional Law
States of Emergency in Comparative Constitutional Law
Study: Civil Law - 9. semester
Commercial Law - 9. semester
Constitutional-Administrative - 9. semester
Criminal Law - 9. semester
International Law - 9. semester
The European Union Law - 9. semester
Code: 94322
ECTS: 4.0
Course coordinators: izv. prof. dr. sc. Đorđe Gardašević
Exam dates:
  • 29. 08. 2022.
  • 12. 09. 2022.
Exam registration: Studomat
Basic data
States of Emergency in Comparative Constitutional Law Civil Law - 9. semester
Commercial Law - 9. semester
Constitutional-Administrative - 9. semester
Criminal Law - 9. semester
International Law - 9. semester
The European Union Law - 9. semester
4.0 94322
Lecturer in charge Consultations Location
izv. prof. dr. sc. Đorđe Gardašević Trg Republike Hrvatske 3, room 15
Literature
REQUIRED: Oren Gross, Fionnuala Ni Aolain; Law in Times of Crisis; Cambridge University Press (2006), str. [object Object]
REQUIRED: Branko Smerdel; Constitutional Law of the EU Member States; Kluwer (2014), str. 191-247
RECOMMENDED: Bruce A. Ackerman; Before the Next Attack; Yale University Press (2007), str. [object Object]
RECOMMENDED: Giorgio Agamben; State of Exception; University of Chicago Press (2008), str. [object Object]
RECOMMENDED: Stewart Abercrombie Baker, John Kavanagh; Patriot Debates; Amer Bar Assn (2005), str. [object Object]
RECOMMENDED: Peter Berkowitz; Terrorism, the Laws of War, and the Constitution; Hoover Press (2005), str. [object Object]
RECOMMENDED: Albert Venn Dicey; Introduction to the Study of the Law of the Constitution; Theclassics.Us (2013), str. [object Object]
RECOMMENDED: John E. Finn; Constitutions in Crisis; Oxford University Press on Demand (1991), str. [object Object]
RECOMMENDED: Carl Joachim Friedrich; Constitutional Government and Democracy. Theory and Practice in Europe and America. Fourth Edition; Blaisdell Publishing Company (A Division of Ginn and Company) (1968), str. [object Object]
RECOMMENDED: The Works of John Locke, in Nine Volumes... Volume the First (-ninth); (1824), str. [object Object]
RECOMMENDED: Eric A. Posner Kirkland and Ellis Professor of Law The University of Chicago, Adrian Vermeule Professor of Law Harvard Law School; Terror in the Balance: Security, Liberty, and the Courts; Oxford University Press (2006), str. [object Object]
RECOMMENDED: Richard A. Posner; Not a Suicide Pact: The Constitution in a Time of National Emergency; Oxford University Press (2006), str. [object Object]
RECOMMENDED: Clinton Rossiter; Constitutional Dictatorship; Transaction Publishers (1948), str. [object Object]
RECOMMENDED: Geoffrey R. Stone; Perilous Times; W. W. Norton (2005), str. [object Object]
RECOMMENDED: Mark Tushnet; The Constitution in Wartime; Duke University Press (2005), str. [object Object]
RECOMMENDED: John Yoo; The Powers of War and Peace; University of Chicago Press (2008), str. [object Object]
RECOMMENDED: 6. Ferejohn, J., Pasquino, P.; The Law of the Exception: A Typology of Emergency Powers, International Journal of Constitutional Law, vol. 2, number 2 (2004); Oxford University Press (2004), str. 210-239
RECOMMENDED: 9. Issacharoff, S., Pildes, R. H.; Emergency contexts without emergency powers: The United States' constitutional approach to rights during wartime, International Journal of Constitutional Law, Vol. 2 (2004); Oxford University Press (2004), str. 296-333
RECOMMENDED: Lobel, J.; Emergency Power and the Decline of Liberalism, 98 Yale Law Journal 1385 (1988-1989); The Yale Law Journal Company, Inc. (1989), str. 1385-1433
RECOMMENDED: Rosenfeld, M.; Judicial Balancing in Times of Stress: Comparing the American, British, and Israeli approaches to the War on Terror, 27 Cardozo Law Review 2079 (2006); (2006), str. 2079-2151
RECOMMENDED: Stone, G. R.; National Security v. Civil Liberties, 95 Cal. L. Rev. 2203 (2007); (2007), str. 2203-2212
RECOMMENDED: Carl Schmitt; Political Theology; University of Chicago Press (2010), str. 5-15
Description
The notion of states of emergency represents an inseparable part of constitutional law, a fact which is clearly to be seen especially in two basic constitutional consequences that emerge as a result of crisis: on one hand, there appears an extraordinary allocation of competences between various constitutional institutions (usually characterized by concentration of powers on the side of the executive and certain self-restraint by representative bodies and courts - special crisis definition of the principle of separation of powers); on the other hand, there appears a need for restriction of constitutionally guaranteed fundamental rights and freedoms.

At the same time, this reflects the basic importance of states of emergency in relation to the idea of constitutionalism: in its extreme, states of emergency are defined as the so-called "states of exception", characterized by a specific suspension (partial or full) of a normal constitution. Reasons for this, criteria of constitutionally acceptable actions during crisis (as well as defining of a principal crisis actor and its relationship towards other subjects/institutions) and objectives aimed to be achieved through emergency actions (normative objective of preservation of an existing constitutional order and problem of a restoration of an ex-ante constitution) make essential elements of a special theory on the "state of exception".

States of emergency certainly make part of a practice of modern constitutionalism (e.g. War on Terrorism; COVID-19 Pandemic). Such practice, and its reflecting doctrine, however, are not merely a phenomenon of modern age. In its rather articulated form, basis of these problems have already been, at the latest, defined in the Roman age (institution of a dictator), while their subsequent developments include various classical (French state of siege, Anglo-American martial law, crisis delegation of powers, special emergency legislation) and modern models (special constitutional and legislative measures).

The course offers an overview of all basic issues of classical and contemporary notions of states of emergency. On the level of a positive analysis, students acquire knowledge on the notion, constitutional position and consequences of various comparative institutes of states of emergency, (examples of modern democracies: United States of America, France, Federal Republic of Germany etc.). At the same time, within the positive analysis, students are introduced to modern case-law dealing with states of emergency, with special emphasis on differing interpretations of problems which case-law in that context offers. On the level of a theoretical analysis, students examine a gradual development of theories of states of emergency.
Exam dates
29. 08. 2022.
12. 09. 2022.