Original scientific paper

American Lessons Learned – European Future Rethought

Đorđe Gardašević ; Faculty of Law, University of Zagreb, Zagreb, Croatia

Abstract

The most notable feature of the notion of states of emergency is the assumption of their unpredictability. As such, it has been both normatively and positively deeply embedded in constitutional thought and practice to this day. However, notwithstanding its unavoidable advantages, I try to claim that it represents a somewhat outdated concept that stands in opposition to the normative development of constitutions in general, and more specifically to the development of the notion of fundamental rights and freedoms. Taking the American history of the evolution of fundamental (constitutional) rights and freedoms as the starting point, I focus on two comparative examples (France and Croatia) which offer some emergency experiences, but which both belong to the period well before these two countries actually started to construe their own constitutional vision of fundamental rights and freedoms (from 1971 and 1999, respectively). My central argument is that the French Constitutional Council and the Croatian Constitutional Court have since then developed a significant body of case-law which must be taken into account when evaluating contemporary constitutional limitations of emergency measures.

Keywords

States of Emergency; crisis; emergency; constitutional review; Fundamental Rights and Freedoms

Hrčak ID:

157594

URI

https://hrcak.srce.hr/157594

Publication date:

29.2.2016.

Article data in other languages: croatian

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