Does necessity know the constitution? Constitutional powers in civilian crises
Abstract as pdf
Corresponding Author:
Julia Dahlqvist
Stockholm University Sweden
julia.dahlqvist@juridicum.su.se
Author(s):
It is said that “necessity knows no law”, but whether this is true in regard to the Swedish constitution and actions taken by Swedish state actors is somewhat unclear. The Swedish legislator has largely rejected the notion of “constitutional necessity”, a principle that means that the state agents, in an emergency situation where society is endangered, can disregard the constitution and still claim to have acted lawfully.[1] The Swedish Instrument of Government (IG, regeringsformen) does however not contain any provisions relating to crises in peacetime, the IG knows only two situations – peace and war. Instead of regulation in the IG, necessity or a provision on proclaiming a state of emergency, the Swedish legislator has chosen to use anticipatory statutorification (författningsberedskap) in relation to peacetime crises. This is mainly based on the idea that the rule of law should not be overlooked in times of crises. Hence, the Swedish approach has been to enact new ordinary legislation, or specific provisions, relating to crises in advance. Extraordinary measures in times of crises should therefore be taken in compliance with the existing legal framework. Despite the notion that peacetime crises are to be handled within the existing framework there are examples of when the government has referred to unwritten rules and exceptions from the constitution - which would then make unconstitutional action in civilian crisis situations justifiable.[2] It is in these cases that constitutional necessity has, at least implicitly, been applied. The occurrence of crises that challenge the notion that extraordinary measures should be taken in compliance with the existing framework are thus not unthinkable, and the question of whether “constitutional necessity” can then be used is unsettled. These are central questions for my on-going PhD-project with the aim to provide a concept for the legal challenges that may arise in different types of civilian crises and whether the notion of necessity can be used to legitimize actions taken outside of the constitution. This is also what I would wish to present and discuss at the conference for the panel Law in Crisis? Analysing the Challenge of Making Laws Work in and after Disasters and Crises.
[1] See e.g. Jermsten, Henrik, Konstitutionell nödrätt, Juristförl., Stockholm, 1992, p. 9; SOU 2005:104, p. 57.
[2] See e.g. KU 1973:20; KU 1974:22; Bergling, Per m.fl., Krisen, myndigheterna och lagen: krishantering i rättens gränsland, 1. Uppl. Malmö: Gleerups Utbildning, 2016, p. 76 f.
Law in Crisis? Analysing the Challenge of Making Laws Work in and after Disasters and Crises