Ming-Sung Kuo (University of Warwick – School of Law) has posted Born out of Crisis? ‘Emergency Europe’ and the Question of Intertemporal Conflict Management in Constitutional Governance (Leone Niglia (ed), Europe’s New Frontiers: Law, Crisis, Governance, Constitutional Transformations, Volume 1 (Bloomsbury forthcoming)) on SSRN. Here is the abstract:
In this paper, I aim to contribute to the literature on the emergency constitution by taking up the question of time in constitutional governance through an examination of the European Union’s (EU) emergency-driven constitution-reshaping starting from the Eurozone crisis. I advance a two-part argument. The first part concerns the tension between constitutionalism and crisis governance in general; the second focuses on the emergence of executive constitutionalism in the EU from its responses to the euro crisis to the Covid pandemic emergency and beyond. Taking on the question of time in constitutional governance, I argue that how to manage the intertemporal conflict between the state of exception/ emergency and that of normalcy lies at the core of the constitutional domestication of emergency powers and holds the key to the prognosis of executive aggrandizement in increasingly crisis-minded governance; yet, driven by successive crises, the EU’s recent constitution-reshaping results from an ‘always present’ executive-led race against time, entailing a temporality structured by the fast-changing financial market and the highly contagious SARS-CoV-2. Born out of crisis, the EU’s emergency-induced changed constitutional order reminisces a less bright executive constitutionalism instead of the long-awaited political constitutionalism. The intertemporal conflict in the EU’s recent constitution-reshaping thus centres on how to align the temporal order required for a constitutional moment to the executive reaction to emergencies in various rescue missions.
Highly recommended.