The concept of state of exception belongs to the legal theory of Carl Schmitt. It is concerned by the state of emergencies based on the sovereign's ability to transcend the rule of law for or at least in the name of the public good. In the United Kingdom and France, the state of exception allows extraordinary powers to deal with extraordinary situations. However, those extraordinary powers often infringe civil liberties: they allow the instauration of martial law, of curfews or of searches by the police without any judicial oversight, and the control of the media. They thus have to be regulated in democratic systems, in order to prevent the instauration of a dictatorship. The question that arises is whether the protection of public good is sufficient for allowing the executive to restrict civil liberties. Can the State sometimes neglect our liberties to lead us to what it sees as "the greater good"?
[...] The curfews in only a few areas of Paris in the French état d'urgence of 2005 may be cited as an example. Bibliography - The State of Exception, Giorgio Agamben - Emergency powers in Peacetime, Bonner - Comparative Law : A Handbook, Nelken and Orucu - Civil Contingencies Act 2004 - Constitution de la Vème République française - Crown powers, Subjects and citizens Christopher Vincenzi - Constitutional and Administrative law ,Stanley de Smith and Rodney Brazier - adapting legal cultures, david nelken and Johannes Feest - www.legifrance.gouv.fr Since the Civil Contingencies Act 2004 Loi 55-385 du 3 avril 1955 instituant un état d'urgence Civil Contingencies Act 2004, section 25 Civil Contingencies Act 2004, section 19 Civil Contingencies Act 2004, section 19 and Constitution of the Fifth French Republic, art 16 François Mitterand Le coup d'état permanent. [...]
[...] These regulations will last seven days unless confirmed by Parliament. In France, however, the legal system distinguishes between two main possibilities: the extraordinary powers under article 16 of the Constitution, and the state of siege of article 36 and état d'urgence (“state of emergency”). To these have to be added two jurisprudential theories. In both countries, the state of exception allows extraordinary powers to deal with extraordinary situations. However, those extraordinary powers often infringe civil liberties: they allow for example the instauration of martial law, of curfews or of searches by the police without any judicial oversight, and the control of the Medias. [...]
[...] Emergency situations and powers dealing with them A. Emergency powers In both France and the United Kingdom, the emergency powers allow dealing with particular circumstances including violent situations as terrorism or war, semi-violent situations as strikes degenerating in riots, and non-violent situations such as environmental or economic problems. However, where the United Kingdom has one single system to deal with such situations[1], France uses the combination of different constitutional, legislative and jurisprudential systems. This is in inheritance of the several crisis of the two last centuries in France. [...]
[...] The same limitation of practice applies to both French and English states of exception: in the case of an abuse of powers, the media and the opposition would not be long to react. To illustrate this point, it can be reminded that the last use of emergency powers in the UK was in 1972 (in response to industrial action), and that the last use of the état d'urgence in France (2005, riots in the banlieues) did not apply the limitation of reunions, the control of the medias, or the searches by the police without judicial oversight. [...]
[...] State of exception” in France and the United Kingdom power of the King ( ) is not an arbitrary power. He is the trustee, not the owner of the estate. The fee simple is in writes Junius in the dedication of his letters. As a trustee may sometimes go against the will of the beneficiaries, so may the sovereign or the executive, particularly in the context of crisis, with the application of the state of exception. The concept of state of exception belongs to the legal theory of Carl Schmitt. [...]
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