| Kommentar |
It is frequently asserted that emergencies are best addressed by powerful executives: the latter are said to be able to act faster, to have more information, and also to exhibit what American observers, following Hamilton, sometimes call “institutional energy.” There is also the view that executives might have to suspend normal legal provisions and either adhere to special rules designed for an exception or operate in a legal vacuum (with the proviso that they will eventually be held accountable for their conduct). The challenges posed by such understandings of emergencies and exceptions to theories of liberal democracy has been debated extensively with respect to the “global war on terror;” the 2020 pandemic has prompted new questions as to what happens to the separation of powers and fundamental rights when executives address a health emergency (and more, specifically, how much power legislatures can legitimately delegate to the executive); less obviously, there has also been the concern that executive failure might amount to a violation of a fundamental right to health. As with other emergencies, there is, finally, the question whether it is institutional checks, or more informal political ones that ultimately prevent executive overreach (or underreach, for that matter).
The course sits at the intersection of political theory, comparative constitutional law, and comparative politics. It will examine important transatlantic differences in how the separation of powers and fundamental rights are understood in “exceptional times;” and who is responsible and accountable in systems of multi-level governance; moreover, it will, from a normative and empirical point, study conceptions of a “post-Madisonian” executive as the critiques of such conceptions that have been offered in the past two decades or so. The course will also examine the actual empirical track record of different types of executives when it comes to addressing emergencies. |
| Literatur |
Paul Kahn and Miguel Poiares Maduro (eds.), Democracy in Times of Pandemic (Cambridge UP, 2020), especially chapters by Walker and Moyn
Anna-Bettina Kaiser, Ausnahmeverfassungsrecht, 2020 |
