From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization
Richard Albert and Yaniv Roznai (eds), Constitutionalism Under Extreme Conditions: Law, Emergency, Exception. Springer, Forthcoming
26 Pages Posted: 28 May 2019
Date Written: May 2019
In this paper, I argue that rediscovering the role of responsibility vis-à-vis political judgment in constitutional ordering is pivotal to the constitutionalization of emergency powers amidst the normalization of the state of exception. I first identify two features of the liberal answer to the question of emergency powers: conceptually, it is premised on the normative duality of normalcy and exception; institutionally, it pivots on the identification of institutional sovereignty that judges the state of exception. I then explain why this paradigm falters with the blurring of normalcy and exception. Drawing on the role of ‘theatricality’ in Hannah Arendt’s political theory, I suggest that making the public ‘see’ the role of judgment in the current undeclared emergency regime underpin the re-constitutionalization of emergency powers. Recast in constitutional mindset, the judiciary is expected to act as the institutional catalyst for forming the public judgment on the ongoing state of emergency.
Keywords: (undeclared) state of emergency, the normalization of state of exception, dispersed emergency powers, normative duality of normalcy and exception, institutional sovereignty, control paradigm, mini-state of emergency, constitutional mindset, political judgment, responsibility
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