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

Abstract

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

Jakab, Andras, German Constitutional Law and Doctrine on State of Emergency - Paradigms and Dilemmas of a Traditional (Continental) Discourse (August 28, 2011). German Law Journal, Vol. 5, pp. 453-477, 2005, Available at SSRN: https://ssrn.com/abstract=1918411 or http://dx.doi.org/10.2139/ssrn.1918411

Andras Jakab (Contact Author)

University of Salzburg ( email )

Kapitelgasse 5-7.
Salzburg, 5020
Austria

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