A word on resilience in times of emergency

Author: Antonios Kouroutakis, Professor of Constitutional Law IE University

The state of emergency is an exception to the constitutional order. It activates emergency provisions, the so-called emergency constitution, which has two characteristics. First, a distorted separation of powers according to which lawmaking power is transferred to the executive while courts are silenced. Second, the imposed limits on our autonomy, rights, and freedoms.

The emergency constitution became topical due the coronavirus outbreak, declared a pandemic by the World Health Organization on March 11. As of today, coronavirus, or SARS-CoV2, has been reported in more than 170 countries. Over 210,000 people have contracted the disease caused by the virus, and more than 9,000 have died.

One country after another has employed emergency provisions from their legal arsenal; Italy, Spain, the USA, and Chile among them. But what is a state of emergency? It can be explained by drawing a comparison from materials science.

According to materials science, and in particular according to fracture mechanics, which focuses on the damage tolerance and failure of materials when stresses and strains are applied, materials are characterized by their resistance to fracture. On the one hand, materials such as glass, ceramics, and ice that fracture before any plastic deformation, are considered “brittle.” On the other hand, there are “ductile” materials such as steel, in which some plastic flow precedes fracture.

Therefore, what distinguishes a material as brittle or ductile is its ability to undergo plastic deformation before it fractures. In practice, ductile fracture is preferred in most applications, because materials with relatively extensive plastic deformation before cracking absorb more energy and tolerate more stress before they fracture.

More than just a playbook

Those who draft a constitution have a paramount aim of creating something that endures, can absorb shocks, and sustain stress and pressure in order to avoid constitutional mortality. In other words, constitutions are not simply rulebooks—they are a fundamental material that defines the structure, performance, properties, and processes of the legal order.

A constitution’s “prescription” usually includes a definition of the state’s lawmaking power and institutional guarantees such as checks and balances, while expressing an obligation for human rights. But in times of emergency, constitutions, like materials, need to tolerate stress in order to avoid fracture.

For the time being, all these measures are necessary if we want to later return to our normal lives. Brace and show resilience—the sun will set on such emergency measures sooner or later.

Such flexibility is incorporated in a number of constitutional provisions that provide for a special regime that affects the separation of powers, constitutional guarantees, and rights in an emergency. Indeed, constitutional provisions in numerous constitutions allow for a deviation from specific rules and procedures, which is subject to several conditions and constraints.

At the same time, lawmakers establish—through ordinary legislation—permanent agencies that are entrusted with the role of advance emergency planning. They act when necessary, setting the framework of cooperation and partnership between different bodies, such as governmental and regional authorities, non-governmental organizations, and volunteers.

Among the measures adopted due to the coronavirus pandemic are general lockdowns, restrictions on freedom of movement and assembly, and limits on freedom of worship. For the time being, all these measures are necessary if we want to later return to our normal lives. Brace and show resilience—the sun will set on such emergency measures sooner or later.

Dr. Antonios Kouroutakis is Assistant Professor at IE University in Madrid, Spain and he teaches Constitutional Law and the Regulation of New Technologies and Startups. Dr Kouroutakis received a DPhil in Law from University of Oxford and an LLM from UCLA School of Law. His research interests lie mainly in the field of constitutional engineering, public law and regulation. Antonios is interested in the concept of separation of powers, rule of law, emergency legislation, and the regulation of new technologies.

Note: The views expressed by the author of this paper are completely personal and do not represent the position of any affiliated institution.