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The “Legality” of Necessity in the State of Exception

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Abstract

In response to extreme conditions, government endowed with extraordinary powers in the form of a state of exception, released from the norms of a rule of law legal order, has been accepted as a modern political institution with an essential role in safeguarding democracy. It is only then, that a democratic government may achieve effective measures necessary to best address the extremities unfolding. The lack of public law theory legitimizing such an institution, alongside the heavy reliance on the medieval principle necessitas legem non habet as the institution’s theoretic premise, prompt contemporary theorist Giorgio Agamben to question the role of the state of exception within modern democracy. This paper will first present how Agamben grounds the state of exception to the concept of necessity, tracing the theory of necessity to its apparent European origin, in the writings of Gratian and Thomas Aquinas. Then, this paper will focus on divergent interpretations of necessity drawn from the halls of the Swiss Federal Palace, whilst discussing the fate of recent state of exceptions. These divergent interpretations of necessity, namely by Ernest Paul Graber and Robert Grimm, both historic members of the Swiss Federal Assembly, indicate how necessity may be interpreted in different ways. Finally, this paper will question the extent to which this parallel relationship, between the state of exception and the concept of necessity, may undermine a democratic rule of law legal order.

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Notes

  1. The precise name of the state of exception appears to vary from one legal order to another. However, despite the different terminologies used to refer to the state of exception (e.g. Ausnahmezustand, état de siège), the core understanding that the executive government is granted extraordinary powers in times of extremities remains paramount. It is important to note the German linguistic distinction between Ausnahmezustand, used to refer to the state of exception, and Notstand, which is used to refer to the state of emergency. Some theorists such Nomi Claire Lazare have insisted that the difference between “exception” and “emergency” are essentially grammatic, with the former being the “subject” and the latter the “predicate” (Kennedy 2011, p.539). Nevertheless, the distinction between the two states, namely exception and emergency, appears set in legal theory and language.

  2. The main characteristics attributed to the state of exception are the expansion of powers of government (in particular those of the executive power), the empowerment of government with the ability to issue decrees with the force of law, the releasing of government from the legal restraints of a set up legal order whilst ultimately also suspending the constitution.; Agamben 2005, pp.5–10.

  3. The institution of the state of siege first appears in the French Constituent Assembly’s decree of July 8, 1791. With this decree, under a state of siege “all functions entrusted to the civil authority for maintaining order and internal policing pass to the military commander, who exercise them under his exclusive authority” (Reinach, De l’etat de siege, Etude historique et juridique, p.109, as cited in Agamben 2005, p.5). However, this decree only referred to military strongholds and ports. It would not be until the law of 18 Fructidor Year 5 (September 1797), that the Directory (the five-member governing committee of the French First Republic) “granted itself the right to put a city in a state of siege” (Agamben 2005, p.5).

  4. The constitution of 22 Frimaire Year 8 (1799) would first introduce the concept of suspending the constitution with its Article 92: “In the case of armed revolt of disturbances that would threaten the security of the State, the law can, in the places and for the time that it determines, suspend the rule of the constitution…”; “Dans le cas de révolte à main armée, ou de troubles qui menacent la sûreté de l’Etat, la loi peut suspendre, dans les lieux et pour le temps qu’elle détermine, l’empire de la Constitution. - Cette suspension peut être provisoirement déclarée dans les mêmes cas, par un arrêté du gouvernement, le Corps législatif étant en vacance, pourvu que ce Corps soit convoqué au plus court terme par un article du même arrêté.”; https://www.conseil-constitutionnel.fr/les-constitutions-dans-l-histoire/constitution-du-22-frimaire-an-viii. Accessed 19 July 2022.

  5. This “dominant mode” (Lazar 2009, p.19) of legal thought in addressing exceptional measures is nonetheless not without its challengers. In denouncing a “norm/exception dichotomy” (Lazar 2009, p.50), theorist Nomi Claire Lazar would be a leading voice in arguing for the recognition of a continuity between emergencies and normal situations. This continuity presupposes that a “codified or common law regimes of rights and moral norms” always apply, whereby in fact “necessity does indeed know law” (Lazar 2009, p.50). In rejecting this binary understanding of exceptionalism, “values underlying the rule of law can be furthered through a variety of formal and informal means”, and thus norms may “constrain without strangling emergency powers” (Lazar 2009, pp.136–137). Therefore, by understanding the “existence of countervailing moral principles” as superior to any “norm/exception” distinction, emergency powers do not appear as an exception from moral norms and rights never cease to apply “morally or politically” (Lazar 2009, p.109). Within this approach, the medieval legal maxim “necessity has no law” does not appear as a premise upon which exceptional measures may be justified.

  6. Carl Schmitt left his impact in legal academia predominantly during the German Weimar Republic years in making the case that in times of extremities, liberal democracies and its parliamentary legislative state are left vulnerable. Ultimately, Schmitt argued that a “third extraordinary lawmaker” in the form of a president, in Weimar Germany’s case, is necessary to allow for adequate responses to such extremities (Schmitt 2004, p.67). Nonetheless, Schmitt’s work would be constantly challenged by other legal theorists and did not represent a consensus of legal understanding at the time.

  7. Schmitt (2004), p.67.

  8. Such a source of legality entails that the lawmaker determines when the necessary situational conditions are present in order to justify extraordinary measures, and then subsequently, determine the “content of the ‘necessary’ measures” to effectively resolve the situation (Schmitt 2004, p.69). However, Schmitt would make the case with one of his most renowned positions, that the “Sovereign is he who decides on the exception” (Schmitt 2005, p.5), rendering the state of exception ultimately the result of a decision. The decision is made on whether there is “an extreme emergency as well as what must be done to eliminate it” (Schmitt 2005, p.7). Such a decision “cannot be a juristic one” (Schmitt 2005, p.6), as both “the precise details of an emergency” and the manner with which such an emergency may “be eliminated” cannot be anticipated (Schmitt 2005, pp.6–7). Ultimately, under Schmitt’s understanding, rather than the state of exception being grounded upon the concept of necessity, it appears to rely on a determination superior to the legal norms established by a legal order.

  9. Agamben (2005), p.25; Gross and Ní Aoláin (2006), pp.137–138.

  10. Since completing his studies in law and philosophy, Giorgio Agamben has gradually paved his way into becoming a leading figure in philosophy and political theory. Agamben, largely influenced by the likes of Martin Heidegger and Walter Benjamin, in his published work, left an impact on a wide range of topics, including radical political thought, linguistics, metaphysics, ethics, and aesthetics. Agamben’s notable works, including “Homo Sacer: Sovereign Power and Bare Life”” (1995), “State of Exception” (2003), “Remnants of Auschwitz: The Witness and the Archive” (1998), and “Stasis: Civil War as a Political Paradigm” (2005), appear as part of a great working project, with the title of “Homo Sacer”. Agamben’s impact in contemporary scholarship is clear, and as such, has been the widely discussed and challenged across the academic spectrum.; Mathew Abbott, Agamben, Giorgio (1942–), Routledge Encyclopedia of Philosophy, https://www.rep.routledge.com/articles/biographical/agamben-giorgio-1942/v-1. Accessed 20 July 2022. doi:https://doi.org/10.4324/9780415249126-DD3594-1.

  11. In his book “State of Exception”, published in 2003.

  12. With his “State of Exception”, Agamben would build upon a concept first introduced in “Homo Sacer: Sovereign Power and Bare Life”. Whereas Agamben would initially focus in his 1995 publication upon the relationship between law and power generally, in his “State of Exception” the object of his focus would shift towards the political, the government, and its relationship with law. Ultimately, the emphasis in both works remains the nature of law and the danger posed in differentiating between political and natural life.

  13. Little is known about Gratian’s life. He was born in the 11th century, most likely in Carriara-Ficulle of Tuscany, in Northern Italy. He was most likely a Benedictine monk and taught at the Monastery of SS. Felix Nabor of Bologna as a lecturer in the 1130 and 1140 s. He completed his most celebrated work Decretum around 1140. (https://www.britannica.com/biography/Gratian-Italian-scholar. Accessed 18 July 2022). Most other biographical information on Gratian remains today ambiguous, following the conclusions reached by John T. Noonan in his 1979 “Gratian Slept Here” publication.; Wei (2016), p.18.

  14. Thomas Aquinas, canonized as St Thomas Aquinas on July 18, 1323, was born around 1224 in Sicily, Italy. Aquinas was a Dominican theologian. He would attend the University of Naples in 1239, where he would first encounter works translated from Greek and Arabic. In 1245 Aquinas would go to Paris to the convent of Saint-Jacques, the great university of the Dominicans, where he would study under St. Albertus Magnus. In 1248, Aquinas would assume the direction of a new faculty established by the Dominicans at the convent of Cologne. He would eventually return to Paris in 1251, for a Master of Theology. He would receive his license to teach in 1256, and thus begin teaching in Paris the same year. From 1259 until his death in 1274, Aquinas would venture between Italy and France, in the service of his theological and educational position. His most celebrated work, Summa Theologica, was written between 1265 and 1274, and would remain unfinished due to his death.; https://www.britannica.com/biography/Saint-Thomas-Aquinas. Accessed 18 July 2022.

  15. Gratian, Decretum; as cited in Agamben (2005), p.24.

  16. Thomas Aquinas, Summa Theologica; as cited in Agamben (2005), p.25.

  17. Agamben (2005), p.31.

  18. Throughout Europe of the 20th century, the state of exception would be called upon and used by different democratic governments at one time or another. Such instances would not only occur in Switzerland, but also notoriously during Weimar Republic Germany and the French constitutional government of the Third Republic. The extensive use of extraordinary powers in both these cases would also be challenged. In Weimar Germany, constitutional law debates would finally erupt into fierce legal proceedings in 1932 at the Staatsgerictshof (a form of a constitutional court). The extraordinary powers used under Article 48 of the Weimar constitution, by the Weimar federal government, would be challenged by the Prussian state government in court. In France, as early as December 1916, Briand’s government would see its request for the power to issue emergency decrees being rejected by the “Chambers” (lower parliamentary house). Throughout the French Third Republic, extraordinary powers would be used and challenged along the way. Opposition would arise across the political spectrum. The “extreme left”, as well as “moderate statesmen as J. Paul-Boncour and E. Herriot”, would argue at different times for the “incompatibility between parliamentary government and the concession of such broad discretionary powers to the executive”; Kirchheimer (1940), pp.1104–1123.

  19. The Swiss Federal Constitution of 1848 would create the Swiss Federal Republic on September 12, 1848.

  20. Beschluss der Bundesversammlung vom 3. August 1914, in: Amtliche Sammlung der Bundesgesetze und Verordnungen der schweizerischen Eidgenossenschaft 30 (1914), p. 347.

  21. Eg. Article 2 of the 1874 Swiss Constitution; “the aim of the Confederation is to ensure the independence of the fatherland against the foreigner [and] to maintain internal tranquility and order”.

  22. Ernest Paul Graber was a prominent member of the Sozialdemokratische Partei der Schweiz (Social Democratic Party of Switzerland, SPS). Before becoming politically active, Graber was a teacher, teaching first in Les Bayard (1892–1900) and then in Chaux-de-Fonds (1900–1915). Graber would become active from early on in the socialist movement in Western French-speaking Switzerland and would be ultimately elected to the Swiss National Council in 1912, for the canton of Neuchâtel. He would remain on the National Council up until 1943, serving as President of the National Council between 1929 and 1930, whilst also chairing the SPS parliamentary group from 1919 to 1925. Graber would also serve as editor of the Swiss newspaper La Sentinelle in 1915, a newspaper which he had co-founded and help shape throughout his lifetime; https://hls-dhs-dss.ch/de/articles/004510/2007-07-17/. Accessed 16 July 2022.

  23. Robert Grimm was a leading member of the SPS. Before becoming politically active, Grimm would start an apprenticeship at an early age at a book printing company in Zurich. Grimm would eventually leave the Zurich canton in 1900 for Bern, where he would become a committed social democrat. In 1909, Grimm would become both, the editor of the Berner Tagwacht and the Bernese City Councilor. In 1911, Grimm was elected for the first time to the Swiss National Council, for Zurich’s District 6. He would serve in the Swiss National Council for almost 44 years. Grimm would also serve as president of the SPS Canton Bern between 1911 and 1941. As member of the the SPS executive committee, Grimm would leave his mark on the course of the party with the structuring of the party programs of 1920 and 1935; https://www.robertgrimm.ch/robertgrimm/. Accessed 19 July 2022; McCarthy (1989), pp.38–62.

  24. Bundesgesetz über die Bekämpfung übertragbarer Krankheiten des Menschen (Epidemiengesetz) 2012.

  25. “notwendigen Massnahmen”; Swiss Epidemics Act (SEA), Article 7.

  26. “It may in direct application of this Article issue ordinances and rulings in order to counter existing or imminent threats of serious disruption to public order or internal or external security. Such ordinances must be limited in duration”; Constitution, Article 185(3).

  27. “soll fast alles mittels einer situationsgemässen Verfassung möglich sein”; Brecht (1976), p.58.

  28. Indicative of this widespread and internationally affirmed opinion is the fact that “necessity” would be deemed as an exception of state responsibility for wrongful acts, under Article 25 of the International Law Commission’s Report from the Fifty-Third Session of 2001. Ultimately, this held opinion would be submitted to the UN General Assembly; https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf. Accessed 14 February 2022.

  29. Agamben (2005), p.24.

  30. “Decretum became the foundational textbook for a new academic discipline of canon law”, which would provide for centuries “the starting point for the analysis and elaboration of canon law issues” (Wei 2016, p.1). In contrast to civil law, which drew from the authoritative body of the Justinian’s text (Justinian’s Digest, Corpus iuris), canon law up until the 12th century did not have a similar single source to draw upon and as such was at a disadvantage and widely “disregarded” by civil lawyers. With the publication of Gratian’s Decretum, canon law would finally acquire an authoritative text and eventually be “added to civil law as a subject of study [firstly] at Bologna” university and soon across Europe (Stein 2018, p.49). This analysis and elaboration would lead to new legal doctrines, which in turn resulted in “new decretals and canons that came to form the ius novum”. Together with civil law, both legal disciplines would “comprise a pan-European legal system, the ius commune” (Wei 2016, p.2). Decretum was glossed and commented on for centuries and became the first part of the “Corpus Juris Canonici. the great body of canon law” (https://www.britannica.com/topic/Gratians-Decretum. Accessed 12 July 2022).

  31. Also referred to as Decretum Gratiani or Concordia Discordantium Canonum.

  32. https://www.britannica.com/topic/Gratians-Decretum. Accessed 12 July 2022.

  33. As Decretum appears to be completed around 1140, Gratian draws upon “existing conciliar canons up to and including the Second Lateran Council in 1139” (https://www.loc.gov/item/2021668099/. Accessed 12 July 2022). Decretum would supersede all “earlier canonist collections”, thus acting as a starting point for all “glossarial exegesis by canonists” from its date of publication onwards (Stein 2018, p.49).

  34. (https://www.loc.gov/item/2021668099/. Accessed 12 July 2022). It must be noted however, that Gratian admits in his Decretum that canon law does not have the answers to all legal questions and gaps, stating that “in matters left undefined by the canons, the civil law should be followed” (D.10 p.c.6; as cited in Stein 2018, p.50.). However, the manner by which this was applied in practice would become a matter of debate at the time, tying in with issues of “the legislative power of the Pope” and with “the nature of the [relevant] proceedings” (Stein 2018, p.50).

  35. Stein (2018), pp.49–51.

  36. Agamben provides for two possible interpretations of this phrase. The one being “necessity does not recognize any law” and the other “necessity creates its own law”.

  37. Gratian, Decertum, pars I. dist.48; as cited in Agamben (2005), p.24.

  38. “Si propter necessitate aliquid fit, illud licite fit: qui aquod non est licitum in liege, necessitas facit licitum. Item necessitas legem non habet”; Ibid., p.24.

  39. “nisi pro summa necessitate contngat, quoniam necessitas legem non habet”; Gratian, Decretum, pars III. Dist. 1. C. 11; as cited in Agamben (2005), p.24.

  40. Agamben 2005, p.24.

  41. Unlike civil law, “the texts of the canon law were continuously increasing with the promulgation of new papal decretals” (Stein 2018, p.49). With this continuous increase of canon law texts, the importance of current authoritative collective canon law ‘sources’, such as Summa Theologica, becomes paramount.

  42. The work was left unfinished due to Aquinas falling ill, and ultimately dying in 1274.

  43. James F. Ross, Thomas Aquinas, ‘Summa Theologiae’ (ca. 1273), Christian Wisdom Explained Philosophically, p.165; in Gracia et al. (2003), pp.143–166.

  44. Pope Leo XIII describes in his encyclical Aeterni Patris, published in 1879, the uniquely authoritative importance of Aquinas’ work within all matters relating to the church, and thus ultimately, canon law. Amongst the historical indices made by Pope Leo XIII, the first and foremost is that all “founders and lawgivers of religious orders commanded their members to study and religiously adhere to the teachings” of Thomas Aquinas (Pope Leo XIII, Aeterni Patris, p.19; as cited in Colish 1975, p.435.). As such, Thomas’ doctrines would be widely studied across the great Catholic Universities since the Medieval times, “from Paris to Salamanca, from Bologna to Louvain, from Naples to Toulouse, ‘Thomas reigned supreme’’ (Colish 1975, p.435). Ultimately, during the Council of Trent, held between 1545 and 1563 in Trent, Northern Italy, the Catholic church hegemony would meet and declare that alongside the scared scriptures and “the decrees of the supreme Pontiffs, the Summa of Thomas Aquinas” shall be considered [from now on] whenever seeking “counsel, reason, or inspiration” (Colish 1975, p.435).

  45. “ipsa necessitas dispensationem habet annexam, quia necessitas non subditur legi”; Thomas Aquinas, Summa Theologica, Prima secundae, q.96, art.6; as cited in Agamben (2005), p.25.

  46. “non iudicat de ipsa lege, sed iudicat de casu singulari, in quo videt verbal egis observanda non esse”; Ibid., p.25.

  47. Agamben (2005), p.25.

  48. Ibid., p.25.

  49. In response to question 96 of Summa Theologica, Aquinas makes the case that when a situation arises “wherein the observance of that law would be hurtful to the general welfare, it should not be observed.”; Thomas Aquinas, The Summa Theologica, q.96, art.6, objection 3; http://www.documentacatholicaomnia.eu/03d/1225-1274,_Thomas_Aquinas,_Summa_Theologiae_%5B1%5D,_EN.pdf. Accessed 18 January 2022.

  50. Agamben (2005), p.28.

  51. Ibid., p.29.

  52. Ibid., p.30.

  53. Balladore-Pallieri, (1970), p.168; as cited in Agamben (2005), p.30.

  54. Agamben (2005), p.30.

  55. Constitutional theorists have argued that the state of exception and its extraordinary powers are either expressly or impliedly included within the democratic constitution. Whereas the Weimar Constitution of Germany would expressly include in its Article 48 extraordinary powers, Switzerland would during World War 1 derive the legitimacy of such extraordinary powers from the text of the Swiss Constitution, by grounding “the state of exception in a law of necessity” crucial to the very existence of the State (Agamben 2005, p.16). This would ultimately lead to “extraordinary powers by the executive” becoming “widespread in Europe” during the 20th century (Kirchheimer 1940, p.1104).

  56. Following the French Constitution of 1791, état de siege fictif or état de siège politique (state of siege) would be realized and acquire legal form in Republican France with the French Law of 10 Fructidor An V, the Directorial law of August 27, 1797.; Carl Schmitt, “Dictatorship”; Edward James Kolla, “Sovereignty, International Law, and the French Revolution, p.244; Agamben (2005), p.11.

  57. Agamben provides for a brief history of the state of exception, and therein includes examples of modern state of exceptions from France, Germany, Switzerland, Italy, and England.

  58. The Swiss Federal Assembly, also known as the Swiss Parliament, consists of two houses, the National Council and the Council of States. The National Council has 200 seats, and the Council of States has 46 seats. Members of both houses represent the Cantons. For a law to pass, it must pass both houses.

  59. The Federal Council is the executive body of the federal government of the Swiss Federation. The Federal Council consists of seven members, elected by the Federal Assembly every four years. One of the seven members is elected on a yearly basis by the Federal Assembly to serve as President.; https://www.admin.ch/gov/en/start/federal-council.html. Accessed 1 November 2022.

  60. Beschluss der Bundesversammlung vom 3. August 1914, in: Amtliche Sammlung der Bundesgesetze und Verordnungen der schweizerischen Eidgenossenschaft 30 (1914), p. 347.

  61. Eg. “the aim of the Confederation is to ensure the independence of the fatherland against the foreigner [and] to maintain internal tranquility and order”; Swiss Constitution, Article 2.

  62. Agamben (2005), p.16.

  63. “kam nicht nur der Vollmachtenbeschluss ohner Gegenstimme zustande, er führte zu einer beinahe vollstöndigen Stillegung der innenpolitischen Debatte”; Schneider (2019), p.143.

  64. “Bereits im Dezember 1914 offenbarte die Budgetdebatte im Nationalrat tief greifende Differenzen über Ausmass und Finanzienrung des militärischen Aufgebots”; Ibid., p.143.

  65. Neutrality reports served as Federal Council reports on the measures taken on the basis of the Vollmachten resolution of August 3, 1914, providing an overview of emergency legislation. It would not be until the actual third neutrality report in May 1916 that such reports would occur on a more regular basis.

  66. On March 7, 1916.

  67. Schneider (2019), pp.113–114.

  68. “Ich bin grundsätlich Gegner, einer bürgerlichen Regierung so weitgehende Vollmachten zu geben.”; Protokoll der 5. Sitzung des Schweizerischen Nationalrates, 9 March 1916.

  69. “der Vollmacht nicht gehörig begründet”; Protokoll der 5. Sitzung des Schweizerischen Nationalrates, 9 March 1916.

  70. “Wenn der Krieg Jahre lang dauert, müssten dann die Vollmachten immer bestätigt werden?”; Protokoll der 5. Sitzung des Schweizerischen Nationalrates, 9 March 1916.

  71. “Das Volk und dessen Rechte stehen über dem Bundesrate.”; Ibid.

  72. “Heute ist der Bundesrat Gesetzgeber geworden, und die Bundesversammlung hat nichts zu sagen”; Ibid.

  73. “Die weitern ausserordentlichen Massnahmen, deren der Bundesrat zur Durchführung der mit der Anfrechterhaltung der Neutralität verbundenen Aufgaben auf wirtschaftlichen, politischem, finanziellem und militarischem Gebiete bedarf und deren Grundlagen nicht durch die Verfassung oder durch die bestehenden Gesetze des Bundes gegeben sind”; Motion by H.H. Grimm and Co-signers, 7 March 1916.

  74. “Die Maßnahmen des Bundesrates sollen der ständigen Kontrolle der Bundesversammlung unterstellt werden”; Protokoll der 5. Sitzung des Schweizerischen Nationalrates, 9 March 1916.

  75. “grundsätzlicher Kritik am Ausnahmezustand”; Schneider (2019), p.156.

  76. “das ganze politische Spektrum übergreifender Konsens über eine «durch außerordentliche Ereignisse geschaffene Notlage», die eine mit Gesetzgebungskompetenz ausgestattete Regierung weiterhin wünschenswert machte”; Ibid., p.156.

  77. “Ich brauche Ihnen nicht zu sagen, welches Chaos entstehen müsste, wenn die Vollmachten und mit ihnen die Verfüngen des Bundesrates dahinzufallen hätten.”; Bericht zum Antrag der Kommission des Nationalrates, 3 March 1916; in Schneider (2019), p.154.

  78. “Die Einschränkung der individuellen Freiheitsrechte ist durch die Aufrechterhaltung des Staates und der öffentlichen Ordnung zulässig und geboten.”; Protokoll der 5. Sitzung des Schweizerischen Nationalrates, 9 March 1916.

  79. “einer stärkeren Beachtung der Neutralitätspflichten”; Schneider (2019), p.156.

  80. Protokoll der 5. Sitzung des Schweizerischen Nationalrates, 9 March 1916.

  81. Bericht zum Antrag der Kommission des Nationalrates, 3 March 1916; in Schneider (2019), p.154.

  82. Agamben (2005), p.31.

  83. The Swiss Federal State was set up by the Federal Constitution of 12 September 1848. The first total revision of the first constitution came into force with the Federal Constitution of 1874, the second constitution. Eventually, the second constitution would be replaced by a third Federal Constitution, which was approved by the Cantons on 18 April 1999 and came into force on 1 January 2000. The Federal Constitution of 1999 included a wholly revised and updated version of the older Constitution.; https://www.parlament.ch/en/%C3%BCber-das-parlament/how-does-the-swiss-parliament-work/Rules-governing-parliamentary-procedures/federal-constitution. Accessed 20 February 2022.

  84. SEA, Article 7.

  85. Contemporary legal theorists have recognized the presence of extraordinary powers inscribed within legislation, resulting in “legislative emergency powers” (Friedrich 1968, p.563). It is through such legislation, that government may enjoy extraordinary powers, that otherwise would be attainable only through constitutional provisions allowing for a state of exception. Theorists have described this seemingly legislative state of exception with different names, such as “the legislative model” (Ferejohn 2004, pp.216–217), “legislative dictatorship” (Rossiter 2002, p.290) or simply “legislative emergency powers” (Friedrich 1968, pp.563–565). Despite the different names attributed, all theorists appear to agree that such emergency legislation provides for both, power “in recognizing an emergency and in creating the powers to deal with it” (Ferejohn 2004, p.217).

  86. Ferejohn (2004), p.217.

  87. Under Article 102(9) of the 1874 Swiss Constitution, the Federal Council had the power and obligation to “watch over the external security of Switzerland and over the preservation of its independence and neutrality”.; https://www.servat.unibe.ch/icl/sz01000_.html. Accessed 21 February 2022.

  88. Article 2 of the 1874 Swiss Constitution was understood during the Vollmachtenregime of 1914 as a source of its legitimacy.

  89. Federal Constitution of the Swiss Confederation of 1999 (Constitution), Article 185(1); https://www.fedlex.admin.ch/eli/cc/1999/404/en. Accessed 29 January 2022.

  90. Constitution, Article 185(3); https://www.fedlex.admin.ch/eli/cc/1999/404/en. Accessed 29 January 2022.

  91. Agamben (2005), p.16.

  92. “Wenn es eine außerodentliche Lage erfordert, kann der Bundesrat für das ganze Land oder für einselne Landesteile die notwendigen Maßnahmen anordnen”; SEA 2012, Article 7.

  93. Federal Council, ‘Botschaft’ of 3rd December 2010 on the revision of the Federal Act on the combat of human infectious disease (Epidemics Act, EpA), BBl [Swiss Federal Gazette] 2011 311 ff, 365.; as cited in Uhlmann and Scheifele (2020), p.117.

  94. There appears to be no debate during the Parliamentary sessions regarding this Article and its relationship with its Constitutional counterpart.; See Uhlmann and Scheifele (2020), p.117.

  95. Sager and Mavrot (2020), p.4.

  96. “die ordentlichen Vollzugsorgane nicht in der Lage sind, den Ausbruch und die Verbreitung übertragbarer Krankheiten zu verhüten und zu bekämpfen”; SEA, Article 6(1)(a).

  97. Sager and Mavrot (2020), p.4.

  98. Ibid., p.4.

  99. Article 7, Bundesgesetz über die Bekämpfung übertragbarer Krankheiten des Menschen; https://www.fedlex.admin.ch/eli/cc/2015/297/de. Accessed 26 January 2022.

  100. In the official press release of the Federal Council, it is made clear that “the cantons were given prior notice of the move”, disclosing that prior to the official decision on March 16, the Federal Council had made their intentions clear.; https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-78454.html#:~:text=Bern%2 C%2016.03.,terms%20of%20the%20Epidemics%20Act. Accessed 26 July 2022.

  101. Within the Federal Archives, the 16 March 2020 meeting of the Federal Council appears as a dossier series titled Sitzung vom 16. März 2020. Within this series, 4 dossiers are listed; Assistenzdienst der Armee zur Unterstützung ziviler Behörden und Änderung der COVID-19-Verordnung 2, Einschränkungen der Dienstleistungen bei der Post, Ausdehnung der Binnengrenzkontrollen und der Einreiseverbote auf Frankreich, Deutschland und Österreich, and Zu erwartende Einschränkungen im öffentlichen Verkehr.

  102. “The archive records of the Confederation become available for consultation by the general public free of charge after the expiry of a retention period of 30 years, subject to the terms of Articles 11 and 12.”; Article 9(1), FAA; https://www.fedlex.admin.ch/eli/cc/1999/354/en. Accessed 28 July 2022.

  103. An attempt was made pursuant to Articles 18 of the FAA to gain access to the documents from the Sitzung vom 16. März 2020 dossier with an official request to the Federal Archives. However, the official request was denied as it did not fulfill the criterion set out for allowing access to protected documents under the FAA. Under Article 18, work from specialist services may access protected records, in particular when regarding “restoration and conservation work.”; https://www.fedlex.admin.ch/eli/cc/1999/354/en. Accessed 28 July 2022.

  104. SEA, Article 7.

  105. https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-78454.html#:~:text=Bern%2 C%2016.03.,terms%20of%20the%20Epidemics%20Act. Accessed 26 July 2022.

  106. On the premise of this ‘extraordinary’ power, the Federal Council issued on March 16 a first decree imposing “a ban on in-person teachings in schools and all education institutions” (Sager and Mavrot 2020, p.4). On the following day, March 17, a further decree was issued banning “all public and private manifestations and events”, whilst “shops, restaurants, bars, and entertainment leisure facilities had to close” (Sager and Mavrot 2020, p.4). Ultimately, gatherings of more than five people in public places would be forbidden by decree on March 21. Further to the extraordinary power assumed, the Federal Council approved economic packages in response to the consequences arising out of the necessary measures taken to combat the exceptional situation. On March 20, 2020, a “comprehensive package of measures totaling CHF 32 billion (USD 35 billion)” would be approved, whilst at the beginning of April “Finance Minister Ueli Maurer increased the amount of emergency loans and guarantees by a further CHF 20 billion (USD 22 billion)” (Sager and Mavrot 2020, pp.4–5).

  107. Uhlmann and Scheifele (2020), p.119.

  108. Swiss Constitution, Art.139, para 1 & Art.141, para 1; Brunner, Wilhelm, Uhlmann & Felix, Das Coronavirus und die Grenzen des Notrechts (2020), p.696; in Uhlmann and Scheifele (2020), p.119.

  109. “Eg. Ordinance of 20 March 2020 on the standstill of deadlines for civil and administrative procedures for the maintenance of the judiciary system in the context of the Coronavirus”; Uhlmann and Scheifele (2020), p.119.

  110. “All activities of the state are based on and limited by law”; Constitution, Article 5(1).

  111. Due to the FFA’s restrictions on “freedom of access” and length of “period of retention”; FAA, Art.9.

  112. Constitution, Article 5(1).

  113. See note 68.

  114. See note 69.

  115. See note 76.

  116. SEA, Article 7.

  117. See note 103.

  118. Ramraj (2008), p.98.

  119. Ibid., p.98.

  120. Ibid., p.106.

  121. Holzgrefe and R.O., Keohane, Humanitarian Intervention: Ethical, Legal and Political Dilemmas, p.216; in Ramraj (2008), p.106.

  122. Eg. German Criminal Code, Sect. 34, “Necessity as justification” & Sect. 35, “Necessity as defense”; https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html. Accessed on 16 September 2022.

  123. Ramraj (2008), p.114.

  124. Ibid., p.114.

  125. Lazar (2009), p.108.

  126. Ibid., p.108.

  127. Ibid., p.109.

  128. Ibid., p.161.

  129. Ibid., p.162.

  130. Ibid., p.162.

  131. Ibid., p.46.

  132. The example of torture is used by Dyzenhaus to stress this point. Under “international law and by the domestic laws of many states”, torture is an act “absolutely prohibited”. However, there are certain examples whereby such action may be warranted in an extraordinary situation, but nevertheless remain unlegalizable. One such example used by Dyzenhaus is the Canadian case of “Suresh v. Canada (Minister of Citizenship and Immigartion) [2002] 1 WLR 414”. In this instance, the Canadian Supreme Court held that “in exceptional circumstances national security grounds could justify a decision to deport to torture” (Ramraj 2008, p.52). Similarly, another example used by Dyzenhaus comes from Israel and the judgment from the Supreme Court. The Supreme Court of Israel would provide a judgment on 6 September 1999, declaring that certain instances may warrant that “officials consider that they have to torture to avoid a catastrophe” (Dyzenhaus 2005, p.83).

  133. Ramraj (2008), p.54.

  134. Ibid., p.92.

  135. Gross and Ní Aoláin (2006), pp.111–112.

  136. Ibid., p.112.

  137. Ramraj (2008), p.92.

  138. Gross and Ní Aoláin (2006), p.111.

  139. Ibid., p.141.

  140. The German Criminal Code is an example of the inclusion of necessity as a possible defense, with Sect. 35.; https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html. Accessed 21 September 2022.

  141. Military necessity acts as a principle under international humanitarian law, which aims to balance the “conflicting interests of military necessity and upholding the principle of humanity in armed conflicts”. German Federal Foreign Office; https://www.auswaertiges-amt.de/en/aussenpolitik/themen/humanitaeresvoelkerrecht/228976. Accessed 21 September 2022.

  142. Aeschines, “Against Timarchus”, p.5; Carey (2003), p.25.; Aeschines (390–314 BC), an Athenian citizen, was a prominent statesman and one of the 10 great Attic orators. He was a fierce rival of Demosthenes (fellow Athenian citizen and also one of the 10 great Attic orators) and advocator of a diplomatic and peaceful resolution with Philip II’s kingdom of Macedonia. Aeschines was a firm believer in the democratic political system of Athens. His surviving three speeches (‘Against Timarchus’, ‘On the False Embassy’ and ‘Against Ctesiphon’) provide for an in-depth insight into the rule of law legal order of Ancient Athens (Carey 2003, pp. 3–14).

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I would like to thank Dr. Miluše Kindlová for her valuable guidance throughout this endeavor.

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    Alexander Carl Dinopoulos

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    Alexander Carl Dinopoulos

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Dinopoulos, A.C. The “Legality” of Necessity in the State of Exception. Liverpool Law Rev (2023). https://doi.org/10.1007/s10991-023-09355-5

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