Political Technology and the Erosion of the Rule of Law

Political Technology and the Erosion of the Rule of Law

Normalizing the State of Exception

Elgar Monographs in Constitutional and Administrative Law series

Günter Frankenberg

This timely volume by distinguished scholar Günter Frankenberg offers a sophisticated analysis and sharp critique of the reactions of nations such as the US, Great Britain and Germany to perceived terrorist threats, organized crime actions and other political emergencies that have occurred in recent years.

Chapter 4: The state of exception as mindset and doctrine

Günter Frankenberg

Subjects: law - academic, constitutional and administrative law, legal philosophy, legal theory, public international law, terrorism and security law, politics and public policy, terrorism and security


Democratic law-rule and the method Locke as its corresponding technique of governing entail two projects linked to the liberal paradigm. The first is the ambitious attempt to legally programme state practice with acts of parliament. Accordingly, the legislature has to define what is right and what is wrong, what should be done and what can be expected by dint of general statutes. The statutes, and in the final analysis constitutional law, are charged with regulating all essential aspects of life in society. For this purpose, state authorities are given powers that allow them to intervene in the citizensí spheres of action demarcated by civil and political liberties ñ or, to put it technically, to coordinate actions and their consequences. First under the banner of rule of law, then of democracy, self-government through self-legislation was to resolve everyday conflicts once society had entered into the civic state (Kant). Consequently, the techniques of governing that are oriented towards the expedient become in the liberal paradigm ñ theoretically ñ less important as rationalist concepts of the state gain acceptance, and always have an interest in effective legal steering and the smooth functioning of the executive within legal barriers. In this way, effectiveness and normativity enter a tension-ridden relationship as standards for the resolution of societal situations of conflict.

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