Legal and Extralegal Emergencies

What should a duly constituted and legitimate government do when political crises threaten the very viability of the state? The usual answers to this question fall into two camps: the legal and the extralegal. The legalists argue that crises of state must be met by entirely legal responses, and typically constitutionalize emergency powers by ringing them round with various forms of constraint. The extralegalists argue that serious crises of state must be met with responses outside the law. This article examines the major national traditions in the justifications of and legal frameworks for emergency powers. It focuses on ancient models of constrained dictatorship, martial law and prerogative power in common-law systems, state of siege and the French constitutional tradition, and the state of exception and the German constitutional tradition. The article then examines delegation, suspension, deference, and partition and reviews common governmental technologies-how governments actually exercise emergency powers. Finally, it considers the debate over emergency powers after 9/11 as many countries deal with what they see as novel and mortal threats from international terrorism.