German Constitutional Law and Doctrine on State of Emergency - Paradigms and Dilemmas of a Traditional (Continental) Discourse
German Law Journal, Vol. 5, pp. 453-477, 2005
17 Pages Posted: 29 Aug 2011 Last revised: 12 Nov 2011
Date Written: August 28, 2011
The article examines the current German constitutional provisions and the different (historical and current) paradigms of German constitutional scholarship dealing with state of emergency. It shows the different advantages and disadvantages of (not) presupposing a pre-legal state and of (not) sticking to the text of the constitution. Although the author argues for an approach which does not recognize any pre-legal state and which sticks in legal reasoning to the text of the constitution, he concedes that the actual institutional practice depends much on the legal tradition of the respective country.
Keywords: state of emergency, Carl Schmitt, Hans Kelsen, Germany, constitutional law, legal theory
JEL Classification: K10
Suggested Citation: Suggested Citation