JJUA54039U  States of Emergency, Emergency Powers, and Liberal Democracy

Volume 2016/2017

Since 11 September 2001 and the beginning of the so-called “war against terrorism,” there has been much political, legal, and academic debate about just how the State can respond to international terrorism. This new threat tests the State’s ability to balance security with individual rights, as well as arguably challenges the power of the Nation-State itself. This course will accordingly examine different theories of emergency powers, using various international case studies of exceptional crises. Focus will therefore be on how different national responses to exceptional national security threats have challenged (and possibly either undermined or reinforced) liberal concepts of democracy and the rule of law and, in some cases, international human rights law.

In order to better understand how the State can or should respond to international terrorism or other perceived security threats, this course will examine the major theoretical paradigms of emergency powers: the “extra-legal” model, the “legislative” model, the “neo-Roman” model, the “rule-of-law” model, and the “authoritarian” model. In turn, these models will be considered in connection with specific historical events, in order to assess their effectiveness and drawbacks in simultaneously responding to emergencies and protecting liberal democratic values.
To this end, the course will focus on theoretical readings about emergency powers, together with statutes, court judgments, and historical accounts of extraordinary events. Case studies will include President Lincoln’s detention orders during the American Civil War, British and American internment laws during World War II, separatist violence in Canada, the fall of the Weimar Republic, and finally British anti-terrorism laws and the U.S. prisons at Guantanamo Bay. Each case study will illustrate a different theory of emergency powers. They are therefore the starting points for an extended and fundamental re-evaluation of the stability and efficiency of liberal constitutional order in times of crisis.

Learning Outcome

- Identify and analyze complex and concrete legal problems surrounding different states of emergency, in their historical contexts;
- Present the wider policy and legal arguments behind the different theoretical models of emergency powers;
- Put the current controversies about States responses to terrorism into historical, national, and international perspective, in order to test the relevance of different emergency powers theories;
- Analyze the impact of different emergency powers upon the concept of liberal democracy and the rule of law, consider their links to illiberal or authoritarian regimes, and understand their relationships to the nature of the State itself;
- Argue carefully and logically for and against specific legal positions in factual context, present the theoretical foundations for those arguments, and make reasoned choices in terms of public policy;
- Formulate and communicate ideas and legal issues;
- Utilize international and foreign legal materials, and historical accounts, in a coherent, competent, and professional way

Good knowledge of the English language is a requirement, not only for oral discussion but for reading a considerable amount of legal material;
As the course is in seminar format, students must read assignments in advance and take an active part in group discussion. Adequate attendance and preparation are therefore critical. There will be no lectures, so success of the course depends upon student participation.
Type of assessment
Written examination, 1 day
Assigned individual written assignment, 1 day
Marking scale
7-point grading scale
Censorship form
No external censorship
Exam period

May 23-24, 2017


August 1-2, 2017

  • Category
  • Hours
  • Seminar
  • 34
  • Preparation
  • 241
  • Total
  • 275