21/12/2021

National sovereignity

The Rule of Law and the Extraordinary Situation

The various legal theorists dealing with the operation and effect of law have mostly examined situations that can be described as occurring in the usual, regular, normal state of social life. Over the last half century, and particularly since the formation and later enlargement of the European Union, the requirement of the rule of law has emerged as a key topic. The test of the rule of law is as follows: it is necessary to examine in an abnormal situation or, as it were, in an extraordinary situation exactly how it is possible to take political decisions that are of fundamental importance to society while also guaranteeing that these decisions remain within the rule of law at all times. The aim of this study is to investigate how and by what constitutional mandate the Hungarian Government deviated from the normal constitutional situation in 2020. The “state of exception” theorised by Carl Schmitt and Giorgio Agamben means the suspension of the law. It is important to understand their views in order to see that the Hungarian situation in 2020 is utterly dissimilar to such a  state of exception. In short, we need to distinguish a  state of exception from an extraordinary situation, because the latter does not imply the suspension of law in general or, more specifically, the suspension of the rule of law, but that parliamentary and government decisions remain within it. The special legal order applied in an extraordinary situation is not in fact a suspension of democracy, still less of the rule of law. On the contrary, it actually falls within both: in a  state of national crisis, this situation is democracy itself and the rule of  law itself, and – accordingly – strict laws (both democratic and imposed within the rule of law), or rather laws of cardinal importance, make its conditions and its functioning possible and regulate it.

The legal state, as the phrase implies, is not only about the law, but also about the state.
Over the last half century, and particularly since the formation and later enlargement of the European Union, the requirement of the rule of law has emerged as a key
condition. The test of the rule of law is as follows: it is necessary to examine in an
abnormal situation or, as it were, in an extraordinary situation exactly how it is possible
to take political decisions that are of fundamental importance to society while also
guaranteeing that these decisions remain within the rule of law at all times. The shocking
experience of the past few months, dominated by the epidemic threat, shows that various misunderstandings and unfounded assumptions of one kind or another are held by the general public. The objective of this paper, which focuses primarily on the Hungarian situation, is to show, that even this extraordinary situation can be managed and controlled within the normal framework of the rule of law....

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