The Indeterminacy of an Emergency: Challenges to Criminal Jurisdiction in Constitutional Democracy

Abstract

In this contribution I will argue that in the case of an emergency the state's monopoly of violence is at stake, meaning that the state's competence to provide citizens with elementary security is challenged. The question is, whether actions taken by the state to ward off the threats to its monopoly of violence (should) fall within the ambit of the criminal law. A central problem is the indeterminacy that is inherent in the state of emergency, implicating that adequate measures as well as constitutional constraints to be imposed on such measures cannot easily be determined in advance. This indeterminacy raises two interrelated issues. Firstly, the issue of whether it makes sense to speak of criminal jurisdiction when the existing jurisdiction is challenged as such. To what extent does the indeterminacy call for inherently unlimited powers of the state, implying there can be no such thing as criminal jurisdiction during a state of emergency? Second - if criminal jurisdiction is not in contradiction with the state of emergency - the issue of what criminal liability could mean in such a state needs to be confronted. To what extent does the indeterminacy inherent in the state of emergency jeopardise criminal liability because such indeterminacy engenders severe legal uncertainty regarding the standards against which the relevant actions are to be judged? Both issues will be discussed from the perspective of constitutional democracy, assuming that what is at stake in the age of emergency is both the competence to sustain the monopoly of violence and the possibility to constrain the powers of the state.

Keywords: state of emergency, Schmitt, Radbruch, criminal law