Emergency is a key constitutional concept that is operative across constitutional orders across the world, in various forms ranging from written constitutional provisions especially devised for addressing situations of crisis, to articulated constitutional or purely institutional practices. Traditionally, emergency has been theorised as a matter of international communis opinio as a legal mechanism that is declared when states face a situation of ‘public emergency which threatens the life of a nation’. Established international and regional human rights standards and judicial practice, alongside traditional constitutional theory, consider emergency as a set of rules that should be operating temporarily, proportionately (to the threat) and with a limited scope, insofar as not to alter existing constitutional arrangements.
Critical approaches to emergency have sought to challenge the prevalent understanding of emergency as a marginal aspect of constitutional order and went so far as to place emergency at the centre of the functioning of the law as a discourse (Schmitt 1922; Agamben 1998, Agamben 2003). Critical scholarship in relation to emergency can thus be divided into critical approaches to the legal operation of emergency as a constitutional device historically operating in a specific context and trajectory, and broader theoretical attempts that isolate in the functioning of emergency a specific structural inability of the law of containing sovereign power or violence. This last strand of criticism has develop into its own right, giving rise to a whole literature of exception and exceptionality that goes far beyond the scope and the concerns of traditional constitutional theory and history.
While there is an obvious overlap between the two, critical approaches to emergency (rather than exception) aim to challenge the temporal, proportionate and bounded notions of emergency, by pointing towards the historical connection between uses of emergency regimes in colonial contexts (Hussain 2003; Merieau 2024), or by exposing the strategical role played by emergency in entrenching new forms of governmentality based on securitisation (Neocleous 2008). Other lines of inquiry that seek to contest the existing paradigm aim at uncovering the inertia of emergency (Bishai 2020), as well as its role in structuring the inner politics of constitutional thinking (Neocleous 2013), pointing to which extent emergency rule is connected to political economy by entrenching historical inequalities (Reynolds 2012), or to which extent the inherently authoritarian features of emergency are not extraneous to liberal thought (Neocleous 2013). More historically inclined critical scholarship points towards the central role of emergency in the production of constitutional orders (Skinner 2024) and its inherently transformative potential (Greene 2017; Cercel 2025).
Further Readings
- Agamben, Giorgio. 1998. Homo Sacer : Sovereign Power and Bare Life. Stanford, CA: Stanford University Press.
- Agamben, Giorgio. 2005. State of Exception. Chicago: University of Chicago Press.
- Bishai, Linda S. 2020. ‘The Inertia of the Exception’. In Linda S. Bishai. Law, Security and the State of Perpetual Emergency. Cham: Palgrave Macmillan. 11-36.
- C Cercel, ‘The threshold of emergency: sovereign power, constitutional change and the spectre of Civil War in 1938 Romania’ (2025) European Law Open
- Greene, Alan. 2018. Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis. London: Hart.
- Hussain, Nasser. 2003. The Jurisprudence of Emergency: Colonialism and the Rule of Law. Ann Arbor: University of Michigan Press.
- Mérieau, Eugénie. Géopolitique de l’État d’exception: Les mondialisations de l’état d’urgence. Paris: Le Cavalier Bleu, 2024.
- Neocleous M. Critique of Security. Edinburgh University Press; 2008.
- Reynolds, John. 2012. “The Political Economy of States of Emergency.” Oregon Review of International Law 14 (1): 85–130.
- Neocleous, Mark. 2014. War Power, Police Power. Edinburgh University Press.
- Schmitt, Carl. Political Theology. 1985 (1922). Translated by Georg Schwab. Cambridge, MA: MIT Press.