La notion d’urgence dans l’argumentation constitutionnelle
Résumé
Phenonenology of Emergency in Constitutional Law: A Comparative Analysis of power-conferring norms (I) After 9/11 and the spread of the terrorist threat, the notion of emergency attracted much interests from constitutional scholars, both as regards its philosophical foundations and the details of the legal regime which should be applied to it. The crucial question is whether emergency and law can «meet each other» or are radically antithetical notions: is a legal framing of emergency situations conceptually possible? Drawing on comparative doctrine and practice, this paper addresses the question of emergency from the perspective of a linguistic analysis of the legal terminology and the legal argumentations which are relative to constitutional powerconferring norms in circumstances of emergency. A phenomenology of emergency considers what the invocation of an emergency may result in from the point of view of the powers which are conferred to legal actors. The analysis relies on a fourfold concept of power-conferring norm, which allows to identify how emergency can affect (1) the identity of the empowered legal actor, (2) the procedure it has to follow in order to produce legal norms, (3) the range of application (area of reality, determined by space, time, material and/or personal criteria), and (4) the range of regulation (kinds of normative meanings) of their competences. This article will be followed up by a second study on the ontology of emergency, focusing on the concept of emergency as it appears in the reasoning of legal actors.