Constitutionality Under Exceptional Circumstances
Security of a society can be threatened not only by military conflict but by natural disaster as well, or just like in our case; by an epidemic.
A widespread outbreak of an infectious disease can be as much of a problem as the escalation of street violence could be. Prepared for such circumstances the legal structure of nations pro-vides constitutional possibilities to introduce extraordinary measures, where constitutionality is to be emphasized. This way confrontation of challenges, despite it is a divergence from or-dinary functioning of the state of law, still remains within its boundaries. In connection to sovereignty Carl Schmitt did examine the law in state of exception. Two of his works are to be mentioned: Die Diktatur (1921), concerning history of sovereignty-theory and the Politische Theologie (1922). In Die Diktatur two types of dictatorships were separated, the pouvoir constitué (power based on constitution) and the pouvoir constituant (power to modify constitution). The “commissar” (assigned with a certain purpose) and the “sovereign” dictator. Base of differentiation between the two is: how the emergence of the norms can be ensured and how can new norms be created? Commissar is proceeding from the existing constitutional order and is supposed to implement it under special circumstances in which the application of the constitutional procedures does not ensure the acceptable existence of the constitutional order in the political body.
In this state of exception (Ausnahmezustand) his purpose is to re-store the ordinary (constitutional) order. This form of dictatorship is limited in time. As an example, Schmitt cited the dictator of the Roman Republic Era, when the dictator, elected for one year, was assigned with facing severe foreign threat. By doing so, the dictator dissolved the contraposition between the legal norms and the norms of execution with political decisions in order to avert danger. To put it simply; the “commissar” kind of dictator suspends the con-stitution in order to protect it. Schmitt thought this situation to be identical to the state of siege (Belagerungzustand). Its counterpart, the “sovereign” kind of dictator on the other hand does not simply suspend the existing constitution but he also would like to create a situation in which the emergence of a new constitutional order can be enabled. His activity can be de-scribed as pouvoir constituant, power to constitute.
Less than a year after Die Diktatur, Schmitt published his new book on the political theology in which he no longer mentioned the commissar, but the sovereign. We can say that he radicalized his theory on the sovereign and – in accordance with that – the state of excep-tion. The first sentence of his book (“Sovereign is he who decides on the exception.”) is cited with frequent regularity. In this writing Schmitt’s attention is focused on the final decision – a decision that can not be derived from the legal norm. This in itself shows already the breaking with the concept of state of law, and in its background one can recognize Schmitt’s confi-dence that the state is superior compared to the law. The conclusion of the legal system does not have to be followed by the termination of every system of society, for the state’s (politi-cal) order is still there. Bottom line is; there is no legal order during exceptional state, there is order created by the political will only.
According to Schmitt, the state of exception is always a condition in which the law is bypassed and in which the political power is all the force that is manifested. It must be emphasized that the state of exception was introduced in Hungary and in all the V4 based on the constitutional order.