Abstract 4/15: Tobias Schottdorf (Leuphana University) – Law, Democracy and the State of Emergency. A Theory Centered Analysis of the Legal State in Time of Exception

#StatEx2017
#StatEx2017

In the conference, I will present some systematic reflections on the relationship of democracy and law in the context of emergency. More precisely, my contribution poses two questions and answers them from a decided theoretical point of view. These questions are, as I will show, connected and need to be examined together:

(1) How do democracy and law behave towards each other in times of crisis?
(2) Is the state of exception necessary for any democracy or is it dispensable?

The answers to these questions will structure my presentation as well. In detail, in the first two parts I will describe the relation of democracy and law in the light of different discourses in the history of ideas and argue why democracy as such, in opposition to our right based liberal model of democracy, does not need the state of emergency.

(1) The civil (“bürgerliche”) state composed as a liberal democracy is based upon rights. Therefore we call it a “legal state” or “Rechtsstaat” in the German tradition, as characterized by Habermas. Thus, it is the law which determines our contemporary form of democracy. In addition, the maintenance of the state (which is also represented in the idea of “Staatsräson”) in this shape can only be secured by maintaining the law. The suspension of democratic procedures is always designated in the way our system of rights works because this system has to cover a non-law based “gap” (see Luhmann, Frankenberg, Menke). The exception is incorporated into the system of rights because our body of law needs the exception to handle circumstances, which cannot be transformed into juridical language.

(2) In terms of democracy, the state of exception is dispensable, but it is not for this system of rights which is determining the present shape of democracy. Our law and our understanding of the state need the exception, and as long as democracy is based on this system of rights, as long as democracy is connected to the civil state, it will run the risk of being affected by limitations induced by the state of emergency. I will argue that there is a specific tension between law and democracy which materializes in the state of exception.

After this second step, I will illustrate my proposal through an example, which focuses on a specific constitutional discourse of the Weimar Republic:

(3) In this last part of my presentation I provide a clarification for these more or less abstract theoreti-cal findings. Based on the debate between the German theorists of law, Carl Schmitt and Otto Kirchheimer, which took part in the early 1930s and picked out real democracy and the constitution of Weimar as their central theme, I will show that democracy is not necessarily dependent on the state of emergency. Instead, and hereby I defend the position of Kirchheimer, the legal state relies on two normative principles which can collide and which can break the liberal democracy, based on the system of rights, apart: legitimacy and legality (see Preuß). The state of emergency is a danger to democracy because it deforms the relation of these two ideas. What could be observed in Weimar menaces all liberal democracies, because they are founded upon a system of rights which needs the exception as part of its own functioning. In order to manage systemic stress and crises injuries of democratic principles can be witnessed, as legality and legitimacy trump or even annul each other.


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