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ABSTRACT
How can we assess the institutional resilience of consolidated democracies in emergency situations? How can we know which regulations of the state of emergency best immunize democratic systems from intra- or inter-regime shifts? With the COVID-19 pandemic, these questions have become urgent. Although worries that intra- or inter-regime shifts may increase due to the proclamation of the state of emergency mainly target countries that were already prone to autocratization, specific complaints have been addressed at undue impingements on fundamental rights in consolidated democracies, too. In most of the current indexes, the presence or absence of certain institutional features is usually considered as per se sufficient to determine the degree of a system’s resilience. Instead, our analysis suggests that these criteria ought to be used as heuristics in the context of an in-depth analysis of institutional mechanisms. This would lead to a reformulation of how such indexes are made. In order to make this point, the article presents a qualitative methodology based on the classical theory of the “state of exception”, taking the divergent cases of Italy and Portugal as an illustration.
Acknowledgements
A first version of this article has been presented at the 7th Political Science Day of the Austrian Political Science Association. We would like to thank all panel participants for their useful comments. We are indebted to Mirjam Pot (University of Vienna) for her comments on a first draft of this article.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Lührmann, Edgell, and Maerz, “Pandemic Backsliding”; Freedom House, “Democracy under Lockdown”; Kolvani et al., “Pandemic Backsliding”.
2 Lührmann and Rooney, “Autocratization by Decree”.
3 Croissant, “Democracies with Preexisting Conditions”; Laruelle et al., “Pandemic Politics in Eurasia”.
4 OHCHR, “COVID-19”; Council of Europe, “Respecting Democracy”.
5 DRI, “Phase Two of COVID-19 Responses”.
6 Ellena and Schein, “Emergency Powers”; Noorlander, “Covid and Free Speech”.
7 Canestrini, “Covid-19 Italian Emergency Legislation”.
8 DRI, “The Rule of Law Stress Test”.
9 DRI, “Phase Two of COVID-19 Responses”.
10 Waldner and Lust, “Unwelcome Change,” 100.
11 Here, “intra-regime shifts” identifies what Waldner and Lust call “democratic backsliding”, intended as “a deterioration of qualities associated with democratic governance, within any regime”. Waldner and Lust, “Unwelcome Change,” 95. Inter-regime shifts identify what Cassani and Tomini define as autocratization, intended as “a process of regime change towards autocracy”. Cassani and Tomini, “Reversing Regimes and Concepts,” 276.
12 Bermeo, “On Democratic Backsliding”.
13 OHCHR, “COVID-19”; Council of Europe, “Respecting democracy”; Freedom House, “Democracy under Lockdown”; DRI, “Phase Two of COVID-19 Responses”; IDEA, The Global Monitor.
14 DRI, “The Rule of Law Stress Test”.
15 Agamben, State of Exception, 13; Rossiter, Constitutional Dictatorship, 9, 291ff.; Bjørnskov and Voigt, “Why Do Governments Call a State of Emergency?”, 111. For the classical roots of the concept, see Schmitt and Kelsen in Vinx, The Guardian of the Constitution.
16 Tingsten, Les pleins pouvoirs, 13.
17 Rossiter, Constitutional Dictatorship, 4; Friedrich, Constitutional Government and Democracy, Ch. 26.
18 Santos, A cruel pedagogia do vírus, 5.
19 Greene, Permanent States of Emergency, xv.
20 Agamben, “Stato di eccezione e stato di emergenza”.
21 Santos, A cruel pedagogia do vírus, 14.
22 Gross, “Chaos and Rules,” 1068.
23 Waldner and Lust, “Unwelcome Change,” 95; Cassani and Tomini, “Reversing Regimes and Concepts,” 277.
24 Criticism includes their theories’ apparent inadequacy to account for “permanent” states of emergency that may result from extended electronic and digital surveillance or media manipulation, as recently underlined by Rudenstine (“Roman Roots for an Imperial Presidency,” 1077). The criticism only works, however, if we conflate the use of emergency rhetorics to entice judicial or legislative deference to the executive’s security policy with the fully fledged state of emergency. Rudenstine also points out Rossiter’s own deference towards the executive power in extreme cases (Roman Roots for an Imperial Presidency, 1063). Rossiter gave a pessimistic assessment of what executive power may end up looking like in the atomic age, as he assumed, like later authors did, that states of war would become “indistinguishable” from states of peace. His criteria, however, are meant to keep up the distinction between democratic and undemocratic rule in a state of emergency, which is what is of interest here.
25 OHCHR, “COVID-19”; Council of Europe, “Respecting democracy”; Freedom House, “Democracy under Lockdown”; DRI, “The Rule of Law Stress Test”; re:constitution, “States of Emergency and the Rule of Law: a primer”.
26 Friedrich, Constitutional Government and Politics, Ch. 14; Constitutional Government and Democracy, Ch. 26.
27 Rossiter, Constitutional Dictatorship, 303.
28 Ibid., 304.
29 Ellena and Schein, “Emergency Powers”.
30 DRI, “The Rule of Law Stress Test”.
31 Sartori, Comparative Constitutional Engineering, 197; Przeworski, Crisis of Democracy, 35.
32 Sartori, ibidem, 197, 201.
33 Przeworski, Crisis of Democracy, 78.
34 Notice that failing to pass the test means that something is wrong with the regulation, but passing the test does not necessarily mean that everything is fine with it. As Przeworski remarks, “(…) conditions do not determine the outcomes; actions of people under the conditions do” (Crisis of Democracy, 79). In the practice, though, when a constitutional order poorly regulates the state of emergency, problems with the proportionality of the measures adopted or with the maintenance of key constitutional guarantees are likely to be just around the corner, as the experience of consolidated democracies with the first phase of the pandemic suggests. DRI, “The Rule of Law Stress Test”; DRI, “Phase Two of COVID-19 Responses”.
35 Miranda, “A originalidade e as principais características da Constituição portuguesa”.
36 Freedom House, “Democracy under Lockdown”; DRI, “The Rule of Law Stress Test”; Lührmann, Edgell, and Maerz, “Pandemic Backsliding”; The Global State of Democracy Indices, “Global Monitor”.
37 EURACTIVE, “Italy’s Senate”; EURACTIVE, “Salvini Risks Trial”.
38 Greene, Permanent States of Emergency, 202.
39 Cartabia, “Summary of the Report”.
40 CCUS, “Carcere ed emergenza Covid”.
41 Bacelar Gouveia, Direito da Segurança.
42 Reis Novais, Direitos Fundamentais, 211.
43 Decree n.° 14-A/2020 of 18 March 2020
44 Resolution of the Assembleia da República No. 15-A/2020, 18 March 2020.
45 See an overview of the COVID legislation at https://dre.pt/legislacao-covid-19-upo (accessed January 10, 2021).
46 Case No. 403/2020 of the 1st Section, Rapporteur: Councillor José António Teles Pereira.
47 Houlberg and Drobinske, Pandemic Positives.
48 Waldner and Lust, “Unwelcome Change,” 99–100.
49 DRI, “The Rule of Law Stress Test”.
50 For a history of the problem, see Agamben, State of Exception; Friedrich, Constitutional Government and Democracy; Rossiter, Constitutional Dictatorship. The debate about the legal entrenchment of checks and balances in extreme situations is actually at the root of the Kelsen-Schmitt controversy – the initiators of the contemporary debate. For a contemporary controversy on the regulation of the state of emergency, see Böckenförde, “The Repressed State of Emergency”.
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Gabriele De Angelis
Gabriele De Angelis is a political theorist, and works as a researcher at the NOVA University of Lisbon. He received his Ph.D. from the Sant'Anna School of Advanced Studies (Pisa, Italy), after graduating at the Ruprecht-Karls-Universität Heidelberg. His current research focuses on democratic legitimacy at the national and supranational (EU) level. He is the author of several papers, monographs, edited volumes, and special issues of international journals on political legitimacy in national and supranational contexts, and on the history of political thought.
Emellin de Oliveira
Emellin de Oliveira is a researcher at the Research Centre on Law and Society (CEDIS) and a Ph.D. Candidate at the NOVA School of Law. She holds a master’s degree in International Migration from ISCTE-IUL, a post-graduation in International Relations – Studies of Peace and Security from the University of Coimbra and a Law Degree from the Federal University of Ceara. Until 2020, she had been a Ph.D. Fellow of the Portuguese Foundation for Science and Technology and in 2019 she was a visiting researcher at the University of Pisa. Additionally, she is a member of the Portuguese and Brazilian Lawyer’s Bar Association, and she has contributed with several organizations both in training and in legal advice on issues related to Immigration, Asylum and Nationality Law.