States have long been using law to respond to crises. One example is the body of global fiscal laws that was designed to stimulate economic growth through measures such as quantitative easing following the 2008 Global Financial Crisis.1 Decidedly more problematic, states have equally been deliberately avoiding the law when responding to crises. An oft-cited example is the broad emergency powers to embark on anti-terrorism measures that Western governments assumed following the 9/11 terrorist attacks; powers that have been used by states in some instances to commit serious ongoing human rights abuses.2 How appropriate is it for a constitutional state to assume such sweeping powers in times of crises? Should it always be bound by the rule of law and act within the limits of the law and the constraints of human rights in the face of emergencies? Or could it, under specific circumstances, circumvent legal requirements in order to act decisively, swiftly and effectively to address the emergency? And if it could, what would this mean for the integrity, stability, durability and legitimacy of the constitutional state?
Louis J. Kotze, North-west University, South Africa and University of Lincoln