Legal constraint in emergencies: Reflections on Carl Schmitt, the Covid-19 Pandemic and Singapore | Symposium on Covid-19 & Public Law

• Main Author: CHNG, Wei Yao, Kenny
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2020
• Subjects: Covid-19; coronavirus; pandemic; emergency powers; legal constraint; constitutional law; Singapore; Asian Studies; Emergency and Disaster Management; Public Health; Public Law and Legal Theory
• Online Access: https://ink.library.smu.edu.sg/sol_research/3173; https://ink.library.smu.edu.sg/context/sol_research/article/5131/viewcontent/Legal_Constraints_Covid_av.pdf
• Institution: Singapore Management University

The controversial legal theorist Carl Schmitt’s challenge to the possibility of meaningful legal constraint on executive power in emergencies could not be more relevant in a world struggling to deal with Covid-19. Scrambling against time, governments around the world have declared states of emergency and exercised a swathe of broad executive powers in an effort to manage this highly infectious disease. In times like these, if Schmitt is indeed right that emergencies cannot be governed by law, we are on the cusp of (or perhaps have already entered) a post-law world – where the business of government is characterised by discretion and power instead of law. This post will suggest that such a bleak conclusion is avoidable. Indeed, if one accepts a broader conception of what “legal constraint” means, it is possible to answer Schmitt’s challenge and hold to a view that even broad discretionary powers exercised during times of emergency can be (and should be) constrained by law in a meaningful way.