The Moment of Schmittian Truth: Conceiving of the State of Exception in the Wake of the Financial Crisis

Ming-Sung Kuo 

University of Warwick School of Law
2014

Christian Joerges and Carola Glinski (eds), The European Crisis and the Transformation of Transnational Governance: Authoritarian Managerialism versus Democratic Governance (Oxford: Hart Publishing, 2014 Forthcoming). 
Warwick School of Law Research Paper No. 2014/01 
Abstract:      

This paper aims to provide critical perspectives on the constitutional debate surrounding global governance by examining the de facto state of exception as the euro crisis has prompted. I first discuss the character of the US emergency power regime and show that the euro crisis management evokes the design of emergency power in the US: executive emergency powers are ‘normalised’ through ordinary legislation but only switched on with the securitisation of the administrative machinery when a crisis is looming. While (global) administrative law, based on the US experience in dealing with the rise of the administrative state, has been advocated as a pragmatic and normative approach to framing global governance in legal terms, the resemblance the euro crisis management bears to American emergency regime reveals the second but more disturbing aspect of modelling global governance on American administrative law. Then, I reflect upon the appeal and limits of constitutionalisation as a practical response to the new crisis management in global governance. In contrast to the issues concerning American emergency regime, the question of transnational states of emergency is entangled with the constitutional debate over global governance and its political condition. I argue that the dilemma facing the constitutionalisation of global crisis governance exposes the Achilles heel of global governance: the absence of a common political will beyond the state. Thus situated, not only is a successful invocation of emergency power unlikely on the transnational level but global governance will continue to be conceived in non-constitutional terms. Here shines the cunning of the crown jurist of the Third Reich.

Number of Pages in PDF File: 25

Keywords: financial and euro crisis, (global) economic state of emergency, Carl Schmitt, state of exception, emergency powers, normalization of state of emergency, US emergency power regime, global governance, troika, global administrative law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2400386