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German Constitutional Law and Doctrine on State of Emergency – Paradigms and Dilemmas of a Traditional (Continental) Discourse

A foreign jurist, on looking into the German literature on constitutional law, will soon and suddenly be struck by a peculiarity of this scholarship: the unusually strong emphasis on a marginal area of constitutional law, namely, the state of emergency. The inquiry is, of course, well-known in other countries, but the passion for, and the theoretical effort expended on, this marginal area is unique to Germany. However, this disinterest on the part of other constitutional lawyers, and the recent decline in interest on Germany's part, could yet change, turning the marginal area into a highly current issue. Combating terrorism raises questions for which the German patterns of argumentation, fine-tuned in the academic debate on the law of state of emergency, may provide a useful framework for discussion. The questions arising in the context of the struggle against terrorism test the limits of positive regulations in extreme situations, leading ultimately to the same underlying dilemma as the law on state of emergency, though with different terminology. In this sense, the constellation of legal issues involved in combating terrorism could be considered as the law on state of emergency “incognito.” However, the various argumentative patterns for law on state of emergency have not yet been directly transferred into the very timely legal discourse on counterterrorism (and no such attempt is made here), but such a transfer of argumentation suggests itself. As such, the topic has a “potential currency,” even if traditional issues of state of emergency themselves no longer count among the most current issues.