Edited by Tom Ginsburg and Rosalind Dixon
Chapter 19: Constitutions and Emergency Regimes
Oren Gross 1 INTRODUCTION A tension of ‘tragic dimensions’ exists between democratic values and responses to violent emergencies.1 The existence of restrictions and limitations on governmental powers is a fundamental attribute of democratic regimes. The ideals of democracy, individual rights, legitimacy, accountability, and the rule of law suggest that even in times of acute danger, government is limited, both formally and substantively, in the range of activities that it may pursue and powers that it may exercise to protect the state. Yet, constitutional arrangements ought also to ensure sufficient powers to government so that it may meet any type of future exigency. The question, therefore, is how to allow government sufficient discretion, flexibility, and powers to meet crises, while maintaining limitations and control over governmental actions so as to prevent or at least minimize the danger that such powers would be abused. While states differ in their constitutional and legal approaches to this basic conundrum, the discourse concerning emergency regimes in democratic societies has almost invariably been governed by ‘models of accommodation’.2 These models recognize that when a nation is faced with emergencies, its legal, and even constitutional, structures may be somewhat relaxed (and even suspended in parts). This compromise, it is suggested, enables continued adherence to the rule of law and faithfulness to fundamental democratic values, while providing the state with adequate measures to withstand the storm wrought by the crisis. Section 2 of this chapter outlines the contours of the Roman dictatorship, a constitutional arrangement whose traces are...
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