|States of Emergency in Comparative Constitutional Law||
Civil Law - 9. semester
Commercial Law - 9. semester
Constitutional-Administrative - 9. semester
Criminal Law - 9. semester
International Law - 9. semester
The European Union Law - 9. semester
|Lecturer in charge||Consultations||Location|
|izv. prof. dr. sc. Đorđe Gardašević||Gundulićeva 10, room 20|
|REQUIRED: Oren Gross, Fionnuala Ni Aolain; Law in Times of Crisis; Cambridge University Press (2006), str. [object Object]|
|REQUIRED: Branko Smerdel; Constitutional Law of the EU Member States; Kluwer (2014), str. 191-247|
|RECOMMENDED: Bruce A. Ackerman; Before the Next Attack; Yale University Press (2007), str. [object Object]|
|RECOMMENDED: Giorgio Agamben; State of Exception; University of Chicago Press (2008), str. [object Object]|
|RECOMMENDED: Stewart Abercrombie Baker, John Kavanagh; Patriot Debates; Amer Bar Assn (2005), str. [object Object]|
|RECOMMENDED: Peter Berkowitz; Terrorism, the Laws of War, and the Constitution; Hoover Press (2005), str. [object Object]|
|RECOMMENDED: Albert Venn Dicey; Introduction to the Study of the Law of the Constitution; Theclassics.Us (2013), str. [object Object]|
|RECOMMENDED: John E. Finn; Constitutions in Crisis; Oxford University Press on Demand (1991), str. [object Object]|
|RECOMMENDED: Carl Joachim Friedrich; Constitutional Government and Democracy. Theory and Practice in Europe and America. Fourth Edition; Blaisdell Publishing Company (A Division of Ginn and Company) (1968), str. [object Object]|
|RECOMMENDED: The Works of John Locke, in Nine Volumes... Volume the First (-ninth); (1824), str. [object Object]|
|RECOMMENDED: Eric A. Posner Kirkland and Ellis Professor of Law The University of Chicago, Adrian Vermeule Professor of Law Harvard Law School; Terror in the Balance: Security, Liberty, and the Courts; Oxford University Press (2006), str. [object Object]|
|RECOMMENDED: Richard A. Posner; Not a Suicide Pact: The Constitution in a Time of National Emergency; Oxford University Press (2006), str. [object Object]|
|RECOMMENDED: Clinton Rossiter; Constitutional Dictatorship; Transaction Publishers (1948), str. [object Object]|
|RECOMMENDED: Geoffrey R. Stone; Perilous Times; W. W. Norton (2005), str. [object Object]|
|RECOMMENDED: Mark Tushnet; The Constitution in Wartime; Duke University Press (2005), str. [object Object]|
|RECOMMENDED: John Yoo; The Powers of War and Peace; University of Chicago Press (2008), str. [object Object]|
|RECOMMENDED: 6. Ferejohn, J., Pasquino, P.; The Law of the Exception: A Typology of Emergency Powers, International Journal of Constitutional Law, vol. 2, number 2 (2004); Oxford University Press (2004), str. 210-239|
|RECOMMENDED: 9. Issacharoff, S., Pildes, R. H.; Emergency contexts without emergency powers: The United States' constitutional approach to rights during wartime, International Journal of Constitutional Law, Vol. 2 (2004); Oxford University Press (2004), str. 296-333|
|RECOMMENDED: Lobel, J.; Emergency Power and the Decline of Liberalism, 98 Yale Law Journal 1385 (1988-1989); The Yale Law Journal Company, Inc. (1989), str. 1385-1433|
|RECOMMENDED: Rosenfeld, M.; Judicial Balancing in Times of Stress: Comparing the American, British, and Israeli approaches to the War on Terror, 27 Cardozo Law Review 2079 (2006); (2006), str. 2079-2151|
|RECOMMENDED: Stone, G. R.; National Security v. Civil Liberties, 95 Cal. L. Rev. 2203 (2007); (2007), str. 2203-2212|
|RECOMMENDED: Carl Schmitt; Political Theology; University of Chicago Press (2010), str. 5-15|
The notion of states of emergency represents an inseparable part of general domain of constitutional law, a fact which is clearly to be seen especially in two basic constitutional consequences that emerge as a result of crisis: on one hand, there appears an extraordinary allocation of competences between various constitutional institutions (usually characterized by a concentration of powers on the side of the executive and certain self-restraint by representative bodies and courts - special crisis definition of the principle of separation of powers); on the other hand, there appears a need for restriction of constitutionally guaranteed fundamental rights and freedoms.
At the same time, this reflects the basic importance of states of emergency in relation to the idea of constitutionalism: in its extreme, appearance of states of emergency is defined as the so-called "state of exception", characterized by a certain suspension (partial or full) of a normal constitution. Reasons for this, criteria of constitutionally acceptable actions during crisis (as well as defining of a principal crisis actor and its relationship towards other subjects/institutions) and objectives aimed to be achieved through emergency actions (normative objective of preservation of an existing constitutional order and problem of a restoration of an ex-ante constitution) make essential elements of a special theory on the "state of exception".
States of emergency certainly make part of a practice of constitutionalism, a fact that has especially been actualized in the last decade through the so-called "War on Terror". Such practice, and its reflecting doctrine, however, are not a phenomenon of a modern age only. In its rather articulated form, basis of these problems have already been defined in the Roman age the latest (institution of a dictator), while their subsequent developments include various classical (French state of siege, Anglo-American martial law, crisis delegation of powers, special emergency legislation) and modern models (special constitutional and legislative measures).
The course offers an overview of all basic issues of classical and contemporary notions of states of emergency.
On the level of a positive analysis, students acquire knowledge on the notion, constitutional position and consequences of various comparative institutes which, in classical and modern form, have been regulating states of emergency, while special emphasis is given to the most recent solutions which have in that respect been introduced in the context of the "War on Terror" (examples of modern democracies: United States of America, France, Federal Republic of Germany). At the same time, within the positive analysis, students are introduced to modern case-law dealing with states of emergency, with special emphasis on differing interpretations of problems which case-law in that context offers.
On the level of a theoretical analysis, students examine a gradual development of doctrines of states of emergency, characterized by constant confrontations of various concepts: from the formulation of the so-called "state of exception" (C. Schmitt), through the "constitutional dictatorship" (C. L. Rossiter, C. J. Friedrich) to contemporary visions appearing in the context of the "War on Terror".
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