Emergencies tamed by the rule of law -or the other way around? Lessons from France

This paper pays attention to 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 certainly epitomized the sudden infatuation with states of emergency (SOE), they have a longer history of becoming a “new model” of government (Ferejohn & Pasquino, 2004). As it draws empirical lessons from the recent experiences of the SOE in France, this paper critically analyzes the unprecedented permanence of SOEs in contemporary paradigms of government. It argues that the theoretical frame of states of exception fails to provide with a relevant lens for analyzing contemporary SOEs, for rather than derogate to or suspend the legal order, contemporary SOEs are intensely juridical and indeed claim their full compatibility with rule of law standards. But 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.