<abstract xml:lang="en" xmlns="http://www.w3.org/1999/xhtml">Firstly, the article focuses on the ideologies of Hans Kelsen and Carl Schmitt, which are, as a matter of stereotype, considered as being in opposition to each other. By revealing the logics of Kelsenian normativism and the conception of law presupposed therein, the paper aims at re-constructing the opposition into a generative affinity of two ideologies and showing that these two great ideological adversaries of the first half of the twentieth century could be considered co-authors of the same ideological construct. The construct could be called the <italic>total state of exception</italic>, with the inherent political holism and legal nihilism.The second main aim of the article is to widen the scope of this insight by relating it to the applied ideas that frame our modern political world. The ideas are those of democracy and human rights, the former appearing as the form of the total state, the latter as the one possible de-former of the total state. However, the foundation - i.e. natural law - of the de-former appears to be inconceivable and, therefore, lost to the modern mind. In the end, the article attempts to show that Schmitt might have reflected on this much more fundamental aspect of legal nihilism. This reflection provides for the possibility of dissonances in his basically anthropocentric decisionism and the centralization of the problem of natural law.</abstract>

Schmitt v. (?) Kelsen: The Total State of Exception Posited for the Total Regulation of Life

<abstract xml:lang="en" xmlns="http://www.w3.org/1999/xhtml">This article aims to bring philosophical and legal aspects of the discussions of the problem of emergency together by employing classic philosophical views on the problem of emergency to categorize dominating paradigms of legal interpretation in the American Supreme Court.In the first part of the article I review the American Supreme Court's case-history and single out three dominating legal paradigms for interpreting the problem of emergency: <italic>the rights model, the extra-legal model</italic> and <italic>the procedural model.</italic> I argue that the procedural model has been by far the most influential.In the second part of the article I ask how this precedence has played out in the context of terrorism cases. I argue that the first four cases that were brought against the government confirmed the procedural model as the Court's primary model for evaluating legal problems related to emergencies. But I also argue that the Court's latest decision on this issue, <italic>Boumediene v. Bush</italic> from 2008, introduces a shift from the previous general tendency to rely primarily on a procedural model towards including substantial rights concerns.</abstract>

From <italic>Milligan</italic> to <italic>Boumediene:</italic> Three Models of Emergency Jurisprudence in the American Supreme Court

<abstract xml:lang="en" xmlns="http://www.w3.org/1999/xhtml">The article deals with the concept of the state of exception in judicial reasoning. Two cases from the European Court of Human Rights together with some case law of the Lithuanian Constitutional Court are examined. The author presents three examples of a possible state of exception from particular case law: i) <italic>state of emergency</italic>, ii) the concept of <italic>transitional democracy</italic> and iii) <italic>economic crisis</italic>. The primary goal of the article is to try to define the boundaries of judicial competence in dealing with the phenomenon of state of exception, which traditionally falls within the competence of executive power. The article argues that the attitude towards this problem in case law has changed a lot during the past couple of decades. Although the court usually does not question the need of Government's announcement of particular state of exception (e.g. state of emergency or economic crisis), the judiciary has attributed to itself rather large discretion to examine whether a particular "exceptional" measure is proportional. According to the examined case law, so-called "primary" human rights (e.g. one's right to life, dignity etc.) as opposed to "secondary" rights (eligibility or economic rights) are usually treated as "absolute" rights and may not be infringed upon even during a state of exception. The <italic>Ždanoka</italic> judgment is here presented, because the vulnerability of the Latvian political system was treated as a certain exception, justifying some deviation from the common standard of safeguard of one's eligibility rights. The paper also examines recent cases of the Lithuanian Constitutional Court concerning diminished social-economic rights during economic crisis.</abstract>

State of Exception and Judicial Power

<abstract xml:lang="en" xmlns="http://www.w3.org/1999/xhtml">The political and legal problem of a state of exception, whereby a state deviates from its normal constitutional and legal order in response to a real or perceived emergency, has generated much debate. Critics contend that the use of a state of exception really is an exception that swallows the rule, with the potential to corrode the entire legal order. The first part of this article explores international law's attempt to put limits upon countries use of state of exception, as enforced by Human Rights Committee of the United Nations. Secondly, the author looks at the broader question of whether or not the U.N., as a super-state, itself uses states of exception, and what, if any, limits are placed upon it.</abstract>

The United Nations and States of Exception

<abstract xml:lang="en" xmlns="http://www.w3.org/1999/xhtml">As is the case with other international human rights treaties, the European Convention on Human Rights (ECHR) offers states parties to the convention possibilities to limit the exercise of human rights in times of crisis. The margin of appreciation doctrine employed by the European Court of Human Rights gives states a lot of leeway in applying the Convention domestically. The question is whether the Convention also allows states to restrict rights guaranteed under the Convention to a degree which would be inconsistent with the spirit of the Convention. To answer the question whether human rights are sufficiently guaranteed under the Convention even in times of emergencies we will first look at general rules concerning the restriction of rights under the Convention. We will then move our investigation to Art. 15 ECHR and look at the conditions set by the norm, its limits as well as at some special cases of emergencies.</abstract>

Faculty of Law, Georg August University, Germany

Faculty of Law, Justus Liebig University, Germany

Human Rights Guarantees during States of Emergency: The European Convention on Human Rights

<abstract xml:lang="en" xmlns="http://www.w3.org/1999/xhtml">This article re-imagines the textual relationship between Carl Schmitt and Walter Benjamin as one of much greater affinity than has typically been granted to it. This reworking of their textual relationship draws largely from a study of how and in what ways the figure of the sovereign in Walter Benjamin's study of the German <italic>Trauerspiel</italic> can be read as a response to Carl Schmitt's theory of sovereignty as found in <italic>Political Theology.</italic> Though the article's narrative trajectory covers a textual relationship, the larger stakes of the work here involve the description of the structure of the state of exception (in particular in its legal, political, and philosophical valences) and its uses and abuses as a tool of sovereign authority, both historically and in contemporary forms. The paper argues that a) functionally and historically a great deal of the truth of the paradoxically riddled structure of sovereign authority can be found in its opposite, namely, the inability to decide on the exception; and b) typologically the sovereign suffers from the tension inherent in a diametrically opposed dual-identity; c) the article also explores from a psychoanalytic perspective the potential space for politics in a world in which law and life have been grafted together in a permanent state of exception.</abstract>

The Hermaphrodite Sovereign: Walter Benjamin, Carl Schmitt, and the Permanent State of Exception

<abstract xml:lang="en" xmlns="http://www.w3.org/1999/xhtml">In the studies of international relations containment and engagement are often understood as strategies of foreign policy. This article seeks to explore containment and engagement through a less frequently applied theoretical perspective: to find out what features of containment and engagement allow them to be called middle-range theories.The article presents the main features of meta- and middle-range theories, draws attention to realism as meta-theory and then distinguishes the most characteristic features of containment and engagement in order to find their matches in the attributes of middle-range theories.The article concludes that containment and engagement can be called middle-range theories, since they are power balancing theories that analyze the phenomenon from a specific point of view (individual approaches to the instruments, regions, targets), they are comprehensive, and they stay within the field of power balancing analysis.</abstract>

Containment and Engagement as Middle-Range Theories

<abstract xml:lang="en" xmlns="http://www.w3.org/1999/xhtml">Theoretical attempts to solve the problem of exception inevitably draw attention to the conflict between freedom and equality, the core values of a democratic society. Granting exclusive rights to one institution or another is justified by the principle of freedom, yet this does not necessarily comply with the idea of equality. Experience shows that it is difficult to avoid exceptions and exceptional rights in the search for consensus in a democracy. Using the popular myth of the fourth estate, media often claims such special rights.This article examines how over twenty years of independence Lithuania has treated one of the most widely applied privileges of mass media - confidentiality of the source of information. When discussing how in practice Lithuania implements the right to deny false claims, it is assumed that mass media disregards all information accuracy principles and aims to portray itself, at least in its own eyes, as an infallible institution having exclusive rights. The country's weak declarations of interest traditions, which have not yet fully developed in the past fifteen years, only strengthen such mass media attempts.Exclusiveness is in the nature of the media already, in that it helps to draw the attention of the public and can provide significant economic benefits. On the other hand, a privileged position often damages the media, since the fourth estate is special - its authority should be based not on rights and privileges, but on trust.</abstract>

The Exceptional State of the Media: Some Experiences in Post-Soviet Lithuania

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Volume 3 (2010): Issue 2 (December 2010) - The Problem of the State of Exception

Baltic Journal of Law & Politics

Volume 3 (2010): Issue 2 (December 2010)

The Problem of the State of Exception