The existence of emergency powers is not, in itself, incompatible with constitutional democracy. Many constitutional systems expressly provide for extraordinary authorities during periods of genuine crisis. The constitutional challenge lies not in the existence of exceptional powers, but in ensuring that their exercise remains lawful, necessary, proportionate, accountable, transparent, and ultimately temporary.

Why the Concept Matters

States of exception occupy one of the most important intersections between law, politics, security, and democratic governance. Every constitutional democracy must confront the same enduring question: how can governments respond effectively to extraordinary crises without permanently undermining the constitutional principles they seek to defend?

States of exception reveal how constitutional systems function under their greatest strain. They expose not only the powers governments possess, but also the institutional safeguards that constrain those powers and the democratic values those safeguards are intended to protect.

History demonstrates that emergencies often require governments to act quickly and decisively. History also demonstrates that exceptional powers can gradually expand beyond their original purpose, weaken constitutional safeguards, and become increasingly difficult to relinquish once a crisis has passed. For this reason, the study of states of exception is not simply about emergencies. It is about understanding how constitutional systems exercise extraordinary authority while preserving the rule of law.

Intellectual Foundations

Although governments have exercised extraordinary powers for centuries, the modern theoretical framework surrounding states of exception is commonly traced to the German jurist Carl Schmitt, who argued during the 1920s that genuine emergencies expose the limits of ordinary law. His famous assertion that "sovereign is he who decides on the exception" emphasized that ultimate political authority rests with those capable of determining when normal legal rules must yield to necessity.

Schmitt remains one of the most influential, and controversial, figures in constitutional and political thought. His support for the Nazi regime and his role in providing legal justification for authoritarian rule permanently shaped how subsequent generations have engaged with his work. Today, his writings are studied as much for the dangers they reveal as for the questions they raise about sovereignty, emergency powers, and constitutional government.

Building upon Schmitt's work, the Italian philosopher Giorgio Agamben argued that states of exception increasingly blur the distinction between law and politics. In State of Exception (2005), Agamben suggested that temporary emergency measures have increasingly become normalized, creating what he described as a "zone of indeterminacy" between constitutional democracy and authoritarian rule.

Other scholars have significantly expanded the field. Oren Gross and Fionnuala Ní Aoláin argue that extraordinary governmental action may occasionally prove necessary but must remain subject to transparent accountability and a prompt return to ordinary constitutional processes. Kim Lane Scheppele has demonstrated how different constitutional traditions produce different approaches to emergency powers and democratic safeguards, while Nomi Claire Lazar has emphasized that emergency powers themselves are enduring constitutional features requiring continual democratic oversight rather than exceptional legal anomalies.

Together, these and many other scholars have transformed the study of states of exception into a rich interdisciplinary field encompassing constitutional law, political theory, philosophy, history, public policy, international law, and democratic governance.

From Temporary Exception to Exceptional Governance

Historically, states of exception were generally understood as temporary departures from ordinary constitutional governance. The underlying assumption was straightforward: extraordinary powers would be exercised only for the duration of a crisis before normal constitutional processes resumed.

Contemporary experience has complicated that assumption.

In many countries, exceptional authorities no longer appear only during discrete emergencies. Emergency powers may be renewed repeatedly, incorporated into ordinary legislation, expanded through executive practice, or maintained through successive crises. Temporary authorities can become institutionalized, while extraordinary measures gradually become accepted features of routine governance.

At ISSE, we use the concept of embedded exceptionality as one analytical framework for understanding this evolution. Rather than viewing exceptional powers solely as temporary departures from constitutional order, embedded exceptionality examines how extraordinary authorities can gradually become integrated into the ordinary functioning of government. This evolution rarely occurs through a single dramatic constitutional rupture. More often, it develops incrementally through successive crises, legislative adaptations, judicial decisions, administrative practice, and evolving public expectations that gradually redefine what is considered ordinary governance.

Understanding this process has become one of the defining constitutional challenges of the twenty-first century. The central question is no longer simply whether governments invoke extraordinary powers, but more about whether those powers remain genuinely exceptional.

Historical Evolution

The concept of exceptional governance has deep historical roots.

During the Roman Republic, temporary dictators and declarations of justitium permitted extraordinary authority during periods of crisis while preserving the expectation that ordinary constitutional order would eventually return.

During the French Revolution, the état de siège (state of siege) further institutionalized emergency authority by transferring significant governmental powers to military authorities during periods of unrest.

The twentieth century demonstrated both the necessity and the dangers of emergency powers. Article 48 of the Weimar Constitution provided legal mechanisms intended to protect the German Republic during emergencies but ultimately became instrumental in the consolidation of authoritarian rule. Similar patterns emerged in Fascist Italy, colonial administrations, military dictatorships, and numerous other historical contexts where emergency authorities became tools for concentrating executive power and suppressing political opposition.

More recently, the terrorist attacks of September 11, 2001, prompted significant expansions of emergency and national security authorities across many democracies. The COVID-19 pandemic then again illustrated both the necessity of emergency powers and the importance of maintaining democratic accountability while responding to rapidly evolving crises. These experiences continue to shape contemporary debates concerning executive authority, constitutional resilience, and the appropriate limits of exceptional governmental power.

Why ISSE Studies States of Exception

States of exception cannot be fully understood through any single discipline.

Legal doctrine explains constitutional authorities. Political science examines institutions and power. History provides comparative experience. Philosophy explores legitimacy and sovereignty. Public policy assesses implementation. Emerging technologies increasingly shape how governments exercise, monitor, and justify exceptional authority.

ISSE was established to bring these perspectives together.

By integrating interdisciplinary scholarship, comparative research, legal analysis, historical context, and public engagement, ISSE seeks to strengthen understanding of exceptional governance while fostering the intellectual foundations necessary to preserve constitutional government during times of crisis.

The study of states of exception is ultimately not an academic exercise, but an investment in constitutional resilience. By advancing scholarship, developing practical resources, convening interdisciplinary communities, and strengthening understanding across law, governance, public policy, and civic life, ISSE seeks to ensure that extraordinary powers remain what they were always intended to be: lawful, accountable, and genuinely exceptional.