State of Exception and Literature

In this panel, I seek to demonstrate a new dimension to understand literature and its connection to law. In the title of my paper, I refer to “state of exception',” an expression that lately has been overused. In my hunch, we may make out from a different perspective. To put it in more blunt terms: the “state of exception” in literature in much more precise in details and description than the one pictured in law's books. To support my assumption, I will introduce two authors that I am particularly familiar with their work: Franz Kafka and W.G. Sebald. One of the chiefly themes in Kafka is the authority. Sebald dedicated his writings to the engagement with the “neighbor.” Both subjects are currently forgotten when jurists come across with the “state of exception.” To wind up, I will link those lessons with the learnings from Walter Benjamin and his book “Ursprung des deutschen Trauerspiels,” which deals straightforwardly with the matters of the state of exception.

The concepts of a state necessity in legal theory

The concept of necessity is deeply rooted in legal traditions of many nations. A medieval Latin sentence: “necessitas legem non habet” has its equivalents in the most of modern languages. Its meaning and importance in private and public law has evolved over hundreds of years. Despite many attempts, there is still no comprehensive juridical theory describing its numerous applications. The so-called state necessity usually serves to legitimize actions of public authorities. Therefire it is an important point of reference for the theory of constitutional law. “Status necessitatis” denotes an extreme case of a state of emergency in which the necessity does not recognize any rights or it makes its own rights. In the paper the author presents the most important views on necessity from the perspective of legal theory, e.g. necessity as an exception, as a subjective right, as a special factual situation, and also as a political argument.

The invisible separation of powers

When examining the proper functioning of the principle of the separation of powers not only the institutional design of state institutions and their formal powers shall be taken into consideration. Legal institutions with primary functions not related to the system of the separation of powers can also affect the sphere of action of state powers, especially the majoritarian power. Tools of minority direct democracy (citizens' initiatives, referenda initiated by a minority), internal limits of the legislative power (open debate, supermajority requirements), as well as the application of certain doctrines developed in constitutional interpretation and methods of reasoning (informal constitutional amendments, proportionality), can function as 'invisible checks and balances'. Taking into consideration this 'invisible side' of the system of the separation of powers supports the more precise analysis of the state of the separated powers in a given country.

Separation of Powers: The Minimal View

In his recent book Political Political Theory, Jeremy Waldron observes that despite the fact that the principle of the separation of powers is widely invoked in political and constitutional debates, it is still unclear what sort of requirements it imposes, and what are the reasons that ground this principle. In my paper I will offer an account of the principle of the separation of powers — one that I call “the minimal view”. For this account, the principle separation of powers imposes some modest requirements of institutional design and institutional behavior. Crucially, administrative agencies that perform lawmaking, adjudicative, and executive functions are not necessarily suspect of violating the separation of powers under this view. In this sense, the minimal view opposes a rather prominent strand of critiques of the administrative state. This account, I believe, is useful and relevant, as it can make better sense of the separation of powers in modern governance.