Reconceptualizing State of Exception: European Lessons from the Pandemic: Volume 90

We have come to a point where the common way to characterise what is taking place presently, or, better yet, for the past almost two years, is with the term ‘pandemic’. The task of this chapter is to bring to awareness certain critical reflections with the hope of disturbing the normalised discourse which excepts the authentic meaning of pandemic, a meaning which affects the totality of the human existence. Following the thoughts of Agamben, Baudrillard, and Heidegger, the hypothesis that this chapter is advancing revolves around the idea that the term ‘pandemic’ has been appropriated by biological thinking excepting its authentic meaning, that is, the ultimate reality of the human existence which is death.

Even before the global pandemic crisis, cosmopolitanism was regarded as ‘a noble but flawed ideal’. A moral perspective, despite the efforts of theorists who worked towards cosmopolitan democracy, has little impact on the larger political landscape. After a full year of ‘social distancing’ that transformed our world, the question arises – what will happen to the idea that so strongly relies on human commonality, togetherness, and sociability if all those features are severely lacking in our everyday lives? Will this prolonged ‘state of exception’ redesign our society and our political arrangements in such a manner that the idea of cross-border solidarity becomes not just unattainable, but utterly unimaginable? Will the global society remain just a dream from some earlier, more naïve times? Or is it still possible to be a cosmopolitan, ‘a king of infinite space’, even when we are forcefully sequestered in our tiny nutshells? The chapter will confront this changing socio-political landscape in order to provide an examination of changes in the cosmopolitan idea in general – and probably to give a little hope for an uncertain future.

The purpose of this chapter is to present a brief overview about the measures adopted in Portugal in the context of the Coronavirus pandemic. This public health crisis gave room in two separate occasions for the declaration of a state of emergency. What is interesting, though, is that it can be argued that a real state of exception occurred not when the state of emergency was in force, but precisely when it was not. This has only been possible because the Government decided to adopt measures that would restrict fundamental rights, because the Parliament did not intervene in such a proceeding, and because the Administrative Supreme Court was arguably too lenient towards the Government. For a while at least, it seems to have occurred a ‘provisional abolition of the distinction among legislative, executive and judicial powers’ (Agamben, 2005). This has been confirmed by subsequent decisions from the Constitutional Court.

The rule of law has been tried in many countries under the state of exception during COVID-19. This chapter focusses on the case of Finland, the only Nordic country to declare a state of exception during the pandemic. Drawing from theoretical accounts on the state of exception, it analyses to what extent the Finnish democratic Rechtsstaat has coped in the state of exception.

The authors propose the concepts of a radical and restrained state of exception and argue that while the Finnish states of exception were rather restrained than radical, there are risks involved in the fact that powers granted by the Emergency Powers Act to be used during a state of exception are moved to normal legislation. Indeed, as Giorgio Agamben, among others, has warned, the state of exception may become permanent and undermine democracy and the rule of law. The chapter provides a dialogue between theory and empirics related to a state of exception, applying theoretical insights on the case of Finland during COVID-19.

Regulated differently in modern constitutions, emergency rule is a case of awkward, and dilemmatic, legal fine-tuning of an ambivalent political move that leads the executive of a democratic regime to the verge of the constitutional system. For that reason, as an utmost situation, emergency rule becomes a testing field for the resilience of the constitutional order. It affects its own foundations, the basic rights, and thus the constitutional capability to make possible their fulfilment. It also serves to appraise the workings of democratic regimes and, accordingly, the type of legitimacy derived from their institutional performance. Furthermore, it provides a vantage point to watch the reactions of both their representatives and their publics. Focussed on the COVID-19 pandemic, this chapter compares the cases of Germany and Spain through their legal regulations of emergency rule and their governments’ responses. Having rather analogous emergency legislations, from 2020 through 2022, there have been significant differences in their decision-making patterns.