Introduction
Liberal constitutionalism faces a fundamental puzzle: how can a state survive an existential threat without betraying the promise that power is bound by rules? This article examines the tension between legality and effectiveness in times of crisis. You will learn how emergency mechanisms have evolved from one-off acts into permanent power structures. You will discover the difference between a state of exception and a constitutional dictatorship, and why, in the era of global capitalism, the project of the rule of law must be rooted in accountability.
The Fundamental Puzzle: The Rule of Law and State Survival
Carl Schmitt challenged liberalism by asserting that the sovereign is he who decides on the state of exception. According to him, the law cannot codify the critical moment, and real power manifests in the decision to suspend norms. The liberal response to this radicalism is constitutional dictatorship. Unlike sovereign caprice, it is a commissarial model: entrusted for a specific task, temporary, and accountable.
In the American tradition, Justice Jackson’s metaphor is key: the Constitution is not a suicide pact. This means the state has a right to self-defense, and individual rights exist only within a stable order. However, the line between necessity and political convenience remains fluid, raising the risk of abuse in the name of community survival.
Crisis Rule of Law and Spaces of Exception
Modern rule of law is not an absolute state, but a project of the rule of law. It is a dense institutional practice that requires the government to provide rational justifications even under extreme stress. A challenge to this project is the delegation of power to specialized agencies and private entities. This process blurs political accountability and creates structural exceptions where democratic control becomes illusory.
This phenomenon is complemented by spaces of exception—permanent zones (such as borders or dependent territories) where full constitutional protection does not apply, even though everything occurs legally. This logic of exception is colonizing the business world. Geopolitics and sanction regimes create a new infrastructure where market risk is no longer predictable but becomes a function of arbitrary regulatory decisions made in emergency mode.
John Dewey and Frederick Douglass: Lessons in Resistance and Sovereignty
John Dewey redefines sovereignty as an experimental process. For him, the state is not a mystical sovereign but a tool for managing the consequences of social actions. Frederick Douglass, in turn, shows that the response to a permanent state of exception (such as slavery) is not the rejection of law, but its moral reinterpretation. Douglass did not call for the suspension of the Constitution, but for reclaiming its meaning as a tool of freedom.
Today, the temporality of emergency power is fading. Threats such as terrorism or pandemics cause emergency mechanisms to become embedded in the daily routine of governance. The end of temporality means that the exception has ceased to be an episode and has become an operating system. In this world, liberal democracy must constantly negotiate freedoms to avoid degenerating into an authoritarian administration managing fear.
Summary
The exception is not a momentary deviation, but the constant shadow of democracy. The liberal order collapses not under the pressure of crisis, but because of the normalization of the extraordinary. The project of the rule of law does not promise perfect procedural purity, but offers a mechanism for accountability and a chance to correct errors. In a world where the exception has become the landscape, it is crucial to reclaim the meaning of law so that it does not become merely a form for arbitrary force. True political courage today lies in acting within the horizon of the law's meaning, despite the pressure of permanent crisis.
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