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Karol Dobrzeniecki, “Law on Emergency Situations. Between Legalism and Necessity”. A Review

Dr hab. Arkadiusz Barut

University of Wrocław

English abstract: The subject of the review is a monograph by Karol Dobrzeniecki “Law on emergency situations. Between legalism and necessity” (Toruń 2018). According to the reviewer, the nature of the work determines the distinction between an emergency situation, that is, a factual state requiring action not provided for by law and a state of emergency, i.e. a legal institution. The main purpose of the work is to analyze the relationship between the recognition of an exceptional situation only in legal terms, and its approach as a political and moral issue. The work has interdisciplinary character. Karol Dobrzeniecki, analyzing jurisprudence, political philosophical, doctrine of constitutional law, as well as constitutional, international and supranational legal regulations, points out the danger of legal “normalization” of a state of emergency, that is, the penetration of its specific solutions into the law intended for the ordinary situation, and hence blurring of the distinction between ordinary and exceptional situations. The author of the reviewed monograph believes that the exceptional situation should be assessed primarily in moral and political categories, being aware of the tragic nature of the choices made at the time.

Keywords: emergency situation, state of emergency

Language: Polish

Published: Number 1(22)/2020, pp. 121-125.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.121

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Number of downloads: 79

Filed Under: Reviews and discussions Tagged With: emergency situation, state of emergency

State of Emergency and State without a Name in Carl Schmitt’s Thought. Suggestion of a Separation

Mgr Wojciech Engelking

University of Warsaw

Abstract: The concept of a state of emergency is one of the most frequently cited elements of the thought of the German philosopher of the law and political theorist Carl Schmitt. In its discussions, however, the conceptualization of the state of emergency, which Schmitt proposed in 1924 in his juridical comments on Article 48 of the Weimar Republic’s constitution, is often linked with the theory of Ausnahmezustand from Political Theology (1922). Such a juxtaposition is a mistake, because Schmitt was not a consistent thinker and his texts can be mutually contradictory. I propose, therefore, to separate the state of emergency from Ausnahmezustand – translated from German literally as a state without a name. The main difference between them consists in the different types of legitimacy. The state of emergency from the Constitution of the Weimar Republic finds its legitimacy in this document from 1919, however, read by Schmitt in a way that in his Constitutional Theory (1928) he referred to as relativization of the constitution. For the state without a name, as not being included in the legal order and the equivalent of a miracle in theology, such legitimacy is impossible. In order to find it, one must refer to other Schmitt’s works than the strictly judicial ones. I believe that the state without a name may be legally valid – in a word: not a coup d’état – if we acknowledge that Schmitt’s political theology is not just a methodological project that translates theological notions into political and legal ones, but a wider proposal rooted in the faith in Revelation. Therefore, this figure from the work of the German thinker in which the state of emergency finds its legitimacy is taken from St. Paul’s letters; it is the figure of a katechon: the one who comes and stops the world from disintegration. The use of such legitimacy emphasizes the reluctance to accept modernity, which Schmitt did exhibit, and presents him as a thinker who continued the medieval way of thinking, which is completely incompatible with the strictly modern concept of a state of emergency.

Keywords: Carl Schmitt, state of emergency, state without a name, katechon, political theology

Language: Polish

Received: 24.12.2018
Accepted:
14.03.2019

Published: Number 1(19)/2019, pp. 15-26

DOI: https://doi.org/10.36280/AFPiFS.2019.1.15

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Number of downloads: 120

Filed Under: Articles Tagged With: Carl Schmitt, katechon, political theology, state of emergency, state without a name, Wojciech Engelking

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virtue jurisprudence religious freedom transcendental pragmatics ideology cooperativisim responsibility of a professional Paulina Konca Paweł Snopek philosophy of dialogue holy war Bartosz Brożek legal status of animals criminal law field of axiological awareness Jakub Hanc ombudsman institutions interest of the state global constitutionalism Franciszek Strzyszkowski Robert Audi Adam Dyrda Unfinished Dialogue contestation legal text formalization semantics Marcin Pieniążek Walzer weighing the rightness Tomasz Barankiewicz la petite éthique moral judgement spokesman of truth judicial election US case law Michał Araszkiewicz naturalistic ethics Sławomir Tkacz administrative law sovereignty religious monism manner of taking into account the expiration of the limitation period universalist religions ethics of never again trial profession of advocate Noam Chomsky conflict management syllogistic model for application of the law strategies of interpretation

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