Taming the exception? Lessons from the routinization of states of emergency in France

Abstract

Abstract This article examines a particular version of contemporary threats to the rule of law: the routinization of emergency powers. Although the global response to the pandemic since 2020 has certainly epitomized the sudden infatuation with states of emergency (SOEs), they have a longer history of becoming a new model of government that has come to saturate our contemporary political horizon, as every crisis (terrorism, pandemic, climate) seems to call for its own SOE. This article analyzes the unprecedented permanence of SOEs in contemporary paradigms of government. It first situates the contemporary practice of SOEs in the longer historical and theoretical frame of states of exception. It then reads the twentieth-century rise of the rule-of-law paradigm that is largely undergirded by an ambition to tame the exception as a challenge to this state of exception framework. Hence its failure to provide a relevant lens for analyzing contemporary SOEs. Through an in-depth study of recent French experiences of an SOE, this article shows that rather than derogate to or suspend the legal order, contemporary SOEs are intensely juridical and claim to be fully compatible with the rule of law. In that, they set a dangerous trap: as they borrow the forms and language of the rule of law, contemporary SOEs threaten to subvert the model’s meaning and sense from the inside.