Elementos para un debate sobre la decisión judicial en los 'casos difíciles': el estado de excepción en la sombra de la ley
| Autor | Alexandre Jaenish Martini/Wagner Augusto Hundertmarck Pompéo |
| Cargo | LL.bin Law and social sciences at the Federal university of santa Maria (UFSM)/LL.b., at Methodist College of saint Mary - Fames, institution of Higher Learning inside the education Southern Methodist Network |
| Páginas | 339-349 |
Page 339
Ver Nota1
Page 340
This paper aims to explore and work the Herbert L. A. Hart’s Theory about the hard cases and its interpretation according David Dyzenhaus’s Theory, that there is a mini state of exception during court decisions taken under the shadow of law. Dyzenhaus’s hypothesis has its perspective considering the recovery, with Hart vs. Dworkin, of the debate during Weimar’s Republic, between Schmitt and Kelsen, concerning who guards the Constitution.
Through Dyzenhaus point of view, there is a resemblance between the German debate — emphasizing judger’s decision when the positivist system didn’t
Page 341
offer direct rules — and the Hart’s classiication of hard cases, as both deals with decision under an exception’s character.
This paper does not intend to explore those debates, but, exclusively, investigate the correlation between hard cases and state of exception. Furthermore, it seeks to reveal if this creation of law by the judger emerges from this unclear zone as a sovereign decision or emergency court.
Considering this context, as a irst step, it will be presented and developed the conception of state of exception created by Giorgio Agamben. This description will be necessary to establish the basic notions that link Hart’s Theory with the arguments of the shadows of the law.
Secondly, the idea of shadow of the law and the concept of state of exception will be analyzed conjointly according Hart’s Theory of hard cases. For this, Hart’s elaboration about discretionary will be explored, intending to justify Dyzenhaus’s hypothesis.
Al last, Dyzenhaus’s Hypothesis will be used to verify if decisions taken under the shadow of the law are similar to decisions taken under state of exception, and if they may lead to the so called judger’s dictatorship. Developed by theoretical elements, this text pursuit to be dialectical forward its objectives and deductive to its methods.
“Weimar’s situation was, clearly, very different of U.S. or England’s situation after the World War II, when the debates between Hart vs. Fuller and Hart vs. Dworkin took place. However, there are echoes that allow us to recognize the shadow of uncertainty as a kind of mini state of emergence for the positivist theory” (DYZENHAUS, 1999, p. 15)
By this, David Dyzenhaus starts his theory, recovering the debate between Carl Schmitt and Hans Kelsen, when they argue who should guard the Constitution during exception’s environments.
The search for this crossover is dificult, once there isn’t even a clear theo-ry about the state of exception and its connection to Law, as long as this state is considered by the authors a problem based on facts and not on Law (AGAMBEN, 2004, p.11).
Consequentially, it must be investigated what it is, effectively, this state of exception and its characteristics. For so, it will be presented the Giorgio Agamben’s work, one of the best references regarding this subject, focusing on historical2 and conceptual elements.
It’s considered a hard task to search for connection between state of exception and politics/law, because the exception doesn’t have a legal form, it occurs under a zone of indifference between chaos and legal order. It is, then, a paradox,
Page 342
as long as the exceptional measures are species of legal measures not taken under the state of law; they are legal forms that can’t have a legal form (AGAMBEN, 2004, p.11-12).
It should be taken in to consideration the fact that the act performed under exception is an act outside the legal system — if it wasn’t like that, this act would be recognized as a normal one, not an exceptional one — nonetheless, in contrario sensu, this act doesn’t belong to a chaotic situation, because there is some order, even if it is not a legal one. The paradox exists because the decision, despite being at the fringe of the law, have a legal authority, even being outside normality.
Agamben even compares the state of exception with a “no man’s land”, that would only be better understood by lifting the veil of uncertainty of this “uncertainty zone” (AGAMBEN, 2004, p.12). Perhaps, that’s why the author says that:
“Between the elements that disturb the creation of a state of exception’s deinition, there is, for sure, its straight connection with civil war, insurrection and resistance. These are states directly opposed from regular state, as civil war exists under a zone of indecision about the state of exception itself, as it is an immediately response of the state force to the most extremist internal conlicts” (AGAMBEN, 2004, p.12)
It seems clearly that, when abnormal facts occur, they take decision to abnormal paths, in a pursuit to protect the order. These are the aspects that could be deined as the state emerged into exception.
Maybe, the main example about this topic is Adolf Hitler’s measure, when he took control of the Nazi State — or, it could be said — he received it. Under the allegation that this measure would protect the people and the State, it was promulgated an act suspending the articles referring to individual and fundamental freedoms at Weimar’s Constitution. As this situation existed for 12 years, it can be said that the Third Reich was a permanent state of exception, becoming, in this perspective, as a threshold of indeterminacy between democracy and absolutism (AGAMBEN, 2004, p.12-13). This case clearly shows that there is a ine line between protecting the democratic state and reaching totalitarianism - in the grounds of the use of exception — by the response of the state power to an extreme conlict.
Next to this concept, the terminological indetermination is also a current discussion on the topic. Therefore, “the state of exception is not a special right, but, as suspension of legal order itself, it sets a threshold or a limit-concept” (AGAMBEN, 2004, p. 15). Thus, the state of exception is directly attached to the term “suspension”. This argument will help to connect this concept with Hart’s theory.
The connection of the state of exception to the term suspension demonstrates a natural consequence towards the convergence between the extent of the civil powers (that are a military sphere in time of war) and the suspension of fundamental rights. Importantly, the exceptional measures have been applied in history based on belligerent periods, state of emergency, and war itself, using military authority to guarantee general authority3.
Page 343
Currently, there is a modiication of the guarantor’s power, as it passed from the military sphere to governmental powers sphere, leading to an original pleromatic state4. Executive power takes control of the legislative powers, i.e., takes full power to govern and legislate in an emergency situation, or, by the fringe of normality.
The question is, however, how far the use of full power is compatible with a democratic state?
It seems evident that its controlled use, although contradicting the...
Para continuar leyendo
Solicita tu prueba