Reshaping Pre-Covid-19 States of Exception: A Challenge for Constitutional Law

This paper analyses traditional rules on states of exception from a comparative perspective and assess whether they were useful to tackle the Covid-19 pandemic.
The comparative scenario shows that the “law of exception” is useful insofar as it is correctly applied, according to the rules of each jurisdiction (i.e., respecting triggering circumstances, procedural rules, ex post oversight). Otherwise, exceptional norms are likely to raise tricky issues, especially because restrictions of rights and freedoms may appear unjustified. Similarly, significant challenges exist when factual circumstances that are considered “extraordinary” are not such, or formal requirements are not complied with (e.g., excessive length of exceptional measures, incorporation of exceptional provisions into ordinary law). Moreover, there are unclear situations, where it is not easy to understand whether an emergency is in place, often implying less effective checks and raising technical doubts.