Judging Under Extreme Conditions: A Court's Role During a National Crisis

Abstract

Debating the role of a court during a national crisis is not a novel scholarly exercise. Several before have done so – and several others will follow. Despite the multitude of opinions on the topic, we are still not one step closer to resolving this issue as we were when these discussions first took place decades ago. The COVID-19 pandemic has given us another occasion to revisit the question. However, unlike the last time when this topic was the focus of discussion in the wake of the attacks of 9/11, the pandemic has taken place in the backdrop of a global decline in the quality of democracy and in an era in which courts have begun assuming a more active role in democratic societies. This allows us an opportunity to rethink some pre-existing notions. To add to it, legal academia has witnessed both a comparative and an interdisciplinary turn which helps reconsider this fundamental question using new insights and reference frames. This article is another addition to the long line of opinions on a court's role during a national crisis. Nonetheless, in contrast to its predecessors, this article addresses this quandary from bottom-up and aims to construct a template for a court to operate in a national crisis that aspires to be applicable across different legal systems and social-political-economic environments.

Keywords: constitutional law, constitutional theory, comparative constitutional law, judicial role, democratic erosion, judicial activism, emergency, national crisis, constitutional courts, supreme court, human rights