Dr. Dana Wolf
Principal Investigator
A state of emergency poses a real challenge to democratic legal systems. A state of emergency, by definition, derives from a crisis that puts severe and unusual pressure on the government and on a democratic regime. Emergency measures typically concentrate powers in the hands of the executive, contravene the ordinary division of powers and constitute a concerted threat to the rule of law. In a state of emergency the danger to the democratic form of government is twofold: a de facto crisis –environmental, such as earthquake or a plague, or man-made like a war – plus a constitutional threat that is inherent in the governmental response to the crisis.
This project aims to examine how modern democracies have addressed a state of emergency which originates from a public-health crisis, and to shed light on the way democracies can and ought to address emergencies of this kind. Hence, the research topic is how democratic countries have addressed the public-health crisis of the COVID-19 epidemic within the boundaries of modern democracies. In particular, the balance of power between the executive, on the one hand, and legislative and judicial supervision, on the other hand, is explored. For that purpose, particular attention is paid to the role of the legislature in states of emergency (legislative monopoly, supervision or omission); governmental adherence to the norms which regulate authority, procedures, and governmental discretion – including discretion that involves interference with fundamental rights; effective judicial review of the executive branch.
The research combines theoretical, comparative and quantitative components. The theoretical framework analyses the relationship between the rule of law and a state of emergency. The rule of law, correctly understood, is a necessary condition for a democratic system and the pivotal, most relevant foundation stone of any democracy – even within the context of an emergency. Hence, adherence to the rule of law is necessary to avoid democratic backsliding. The theoretical framework examines three models of the rule of law during state of emergency and focus on the model known as “unbroken legality”.
The comparative and quantitative components of project are expected to reveal and highlight theoretical difficulties and contradictions and suggest possible solutions. These are based on data gathered from eight democracies worldwide. The Covid-19 pandemic has created a rare opportunity to analyze and compare extraordinary measures taken by various countries to deal with an unusual public-health crisis.