Shdmidt, T. N. Theoretic and Legal Grounds for Emergency Legal Regulation and the ‘State of Emergency’ Doctrine

Abstract: The article is devoted to the grounds for emergency legal regulation. The author shows both the danger of transition from emergency situation to dictator’s authoritarian power and a necessity of legal regulation in extreme situations in order to provide social security. To provide grounds for emergency legal regulation, the author analyzes the ‘state of emergency’ doctrine. The author concludes that emergency legal regulation is a reasonable exceptional measure to overcome social and state security threats. Of course, the emergency law itself is, basically, the violation of ordinary legislation so it can be qualified as a violation of law. On the other hand, the right to commit a violation in an emergency situation is a ‘necessary evil’ creating grounds for restoring order and social security. In this respect, emergency legal regulation is similar to such institutions as the right of self-defense, necessity and reasonable risk. All these cases refer to the exclusion from general rules for the sake of a higher value. At the same time, there is always a risk to go beyond the limits of provided responsibilities and powers and commit a violation. But without such a risk, it would be impossible to guarantee the preservation of values higher than a formal observation of law.

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