La notion d�urgence dans l�argumentation constitutionnelle (II): Analyse théorique et comparative à partir du concept de norme d�habilitation. II. Ontologie de l�urgence

• Autores: Guillaume Tusseau
• Localización: Teoria politica, ISSN 0394-1248, Annali 2, 2012, págs. 347-370
• Idioma: francés
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• Resumen

  • After 9/11 and the spread of the terrorist threat, the notion of emergency attracted much interest among constitutional scholars, both in relation to its philosophical foundations and the details of its legal regimes. The crucial question is whether emergency and law can meet or whether they are radically antithetical notions. Is a legal framing of emergency situations conceptually possible? Drawing on comparative doctrine and practice, this paper addresses the question of emergency from the perspective of a linguistic analysis of the legal terminology and the legal arguments relative to constitutional power-conferring norms in emergency circumstances. A phenomenology of emergency, published in the previous issue of Teoria Politica, focused on the result of emergencies on the powers conferred to legal actors. The analysis relied on a fourfold concept of power-conferring norms, enabling identification of how an emergency may affect (1) the identity of legal actors, (2) the procedure they have to follow in order to produce legal norms, (3) the scope of application (context determined in space and time, as well as material and/or personal scope), and (4) the extent of regulation (normative meanings) of their competences. Here, the study of the ontology of emergency sheds light on the very concept of emergency as it appears in legal reasoning. The traditional approach in legal doctrine generally relies on a form of ontological realism. The authors appear to be in search of the exclusive, exact and true essence of emergency. This is not appropriate for accounting, in scientific terms, for the complexities of positive law. An analytical approach is suggested for grasping the denotation and connotation of "constitutional emergency". The precise denotation of the concept, in fact, is quite secondary to the way the legal order operates. The usefulness of calling a situation an emergency depends most of all on the fact that it connotes a form of necessity, which justifies an actor's legal action. Thus the need for an argumentative analysis of constitutional emergency, displaying both the strengths and weaknesses of the rhetoric to which it belongs in the strategic interactions of legal actors.