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

See all articles by Ming-Sung Kuo

Ming-Sung Kuo

University of Warwick - School of Law

Date Written: May 2019

Abstract

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

Suggested Citation

Kuo, Ming-Sung, From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization (May 2019). Richard Albert and Yaniv Roznai (eds), Constitutionalism Under Extreme Conditions: Law, Emergency, Exception. Springer, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3381286

Ming-Sung Kuo (Contact Author)

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry, CV4 7AL
United Kingdom

HOME PAGE: http://warwick.ac.uk/fac/soc/law/people?id=4945a0b0c6550cc21bbcc89cf0b570af

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