CEU Electronic Theses and Dissertations, 2024
| Author | Laur, Marie |
|---|---|
| Title | The Aporia of Adjudicating Emergencies in Liberal Democracies: Lessons learned from the ECtHR, the French Councils and the U.S. Supreme Court |
| Summary | In liberal democratic systems, emergencies bring the judiciary to the forefront. When the separation of powers fades and rights and freedoms are restricted beyond what would normally be acceptable, apex courts are the last institutional resort to contain emergency powers and prevent their abuse. These are some of the premises of the dominant emergency paradigm. This dissertation challenges these premises. It questions the assumption that emergency powers are a necessary evil indispensable to safeguard the state against great perils. Rather, a critical approach highlights the constructed nature of said perils, which in turn raises the question of the subjectivity of emergencies. Behind national security, this critical lens suggests that it is the social order that emergency powers are designed to protect. Consequently, as long as they serve this purpose, the recourse to emergency powers to undermine dissident opinions and claims formed by minorities would actually not be misuses or abuses but the normal implementation of a not-so-exceptional regime. Framing emergency powers in this way has important implications regarding the role of the judiciary. Courts would no longer be meant to limit the concentration of powers nor excessive restrictions on rights and liberties. The new assumption would then be that courts – despite their best efforts – are not capable of effectively reining in emergency powers. In order to assess this hypothesis, the dissertation offers a comparative analysis of the emergency case law of some of the most established, while very different, courts in liberal democratic systems: the European Court of Human Rights, the French Constitutional Council and Council of State and the United States’ Supreme Court. Their case law is first analyzed from the point of view of the institutional impact of emergency powers, assessing whether courts have proved capable (or willing) to resist assaults on the separation of powers. It is then the scope and degree of the review of emergency powers themselves that is considered: whether or to which extent the very existence of an emergency is reviewed, the degree of scrutiny applied to emergency measures, and the courts’ capacity to discern and address their potentially illiberal design and implementation. The analysis includes cases related to terrorism but also the Covid-19 pandemic (and occasionally other emergencies designated as such by the authorities) in order to identify elements that are not characteristic of a specific situation, but which are intrinsic to emergency powers in general. Despite the key differences which set the four courts apart, the comparative analysis indicates more commonalities than diversity in the outcomes of their judgments. Notwithstanding some variations between the jurisdictions, the analysis points to common and systematic pitfalls in the courts’ capacity or willingness to effectively uphold the separation of powers and protect rights and freedoms during emergencies. Although not necessarily in such a systematic manner, some of these weaknesses have been identified in the literature on emergency which counts several suggestions for adjustments. However, these are unlikely to succeed because they fail to address the underlying causes of the flaws of judicial review during emergencies. In contrast, post-liberal theories offer more ambitious avenues to rethink emergency powers and therefore, the function of the judiciary during crises. Nonetheless, the possibility – and maybe desirability – for liberal courts embedded in liberal systems to take these on and advance them might be limited at best. |
| Supervisor | Möschel Mathias |
| Department | Legal Studies PhD |
| Full text | https://www.etd.ceu.edu/2024/laur_marie.pdf |
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