Drawing on insights from two global symposia that together reported on governmental responses to COVID-19 in 75 countries, this chapter traces two cross-cutting themes that shed greater light on varied impacts on civil liberties and socio-economic rights. First, it considers whether a constitutional state of exception is preferable to using ordinary legislation in managing the impacts on civil liberties of a health and social crisis. The chapter suggests that whether countries are successful in limiting the potential for abuses is best understood in light of socio-historical factors, as well as informal rules that underpin normative and institutional legitimacy, as much as the formal legal vehicles used. Second, the pandemic has exposed the effects of decades of privatization, reduced social spending and rising inequality on health. The chapter suggests that the ways laws structure financing and organization of health systems (public health and care) are as critical to understanding responses as legal recognition of health-related rights. With respect to both civil liberties and health-related rights, the chapter argues that the key to understanding the varied impacts and responses to COVID-19, as well as to consolidating the democratic rule of law post-pandemic, is examining the wider contexts and contingencies that shape how formal legal rules operate.

Proportionality purports to contrast means with ends to decide whether a specific rule breaches the Constitution. The chapter starts by analyzing discussion of the 2016 agreements between the Colombian government and the FARC guerrilla in the Colombian Constitutional Court, whose justices split over the standard of review to be used to decide the scope of the special legislative powers conferred to the president to implement the Peace Agreement. Part of the Court believed that those special presidential powers were to be scrutinized under stringent standards similar to those applied in judicial review of emergency powers. Others pointed out, by contrast, that those powers were to be deployed not in an emergency setting, but in a transitional one where more lenient standards of review apply. The chapter suggests that this debate between exception and transition illuminates the analysis of how judicial discourses build relations between means – legislative and executive norms – and goals – attaining peace – adding dimensions to the proportionality/necessity framework as a field where judges deploy their powers to exert political control over other public branches. While the Court framed the debate around the concept of “necessity,” Colombian constitutional discussions suggest that necessity and proportionality could even be interchangeable concepts.

The chapter deals with well-established doctrine dealing with business regulation, including rate regulation, and intergovernmental tax immunity and other issues associated with the structure of government. The cases discussed show a sometimes simple, sometimes complex interplay between the stated doctrine and economic considerations, including concerns about the extent to which regulation nominally in the public interest actually served the narrow interests of specific economic actors. The chapter also examines the novel doctrine of propsective overruling, where formalism sharply conflicted with practicality.

The policing of opinion transitioned from camps to courts during the first years of the Third Reich. The criminalization of criticism traced to the Reichstag Fire. Emergency decrees permitted arbitrary detention for suppressing a communist uprising and criminalized “disinformation.” Loose regulation quickly expanded enforcement from Marxist organizations and publicly supporting revolution to include private expressions of dissent by “chronic complainers and grumblers.” Mounting skepticism about this protracted state of emergency led to accusations of lawlessness from Hitler’s conservative partners by 1934. Policymakers responded by reining in protective custody and rewriting treason statutes to prosecute communist sedition through the courts. The disinformation decree was also rewritten to cover criticizing the regime. Stricter regulation brought the focus back to organized communist resistance, but the rewritten laws left the door open to policing private opinion in society at large. By 1935, the policing of criticism had settled into routine practices and formal processes under a newly expanded Law against Malicious Gossip governing the private conversations of Germans.

This chapter explains the notion of the rule of law which Victorian jurists associated with the English constitution. It examines the role of habeas corpus in securing personal liberty, and explains the debates over martial law which followed the Jamaica revolt of 1865, in which common lawyers sought to subject emergency rule to the rule of law. Despite this strong commitment to the rule of law at home, British rulers in the empire regularly introduced emergency regimes or detained political prisoners through ad hominem legislation, as was done in 1877 in the case of Abdullah, Sultan of Perak. Whereas in India, general legislation was passed to allow the detention of political prisoners and the introduction of martial law, in most of Africa, the colonial authorities used either specially enacted ad hominem ordinances or uncodified martial law powers. This was done even in East Africa, when Mwanga of Buganda and Kabagera of Bunyoro were detained and deported, even though legislation following Indian forms had been passed there. This chapter considers questions raised by the use of such emergency legislation for British perceptions of and fidelity to the rule of law.

In exceptional circumstances, defined as “emergencies”, states can limit human rights and personal freedoms, as long as restrictions are proportionate and necessary. From a comparative constitutional law perspective, several “emergency models” can be envisaged. At the same time, several international law tools provide for the possibility to derogate guarantees embodied therein in order to tackle exceptional circumstances. Since September 11, 2001, international terrorism has represented one of the biggest challenges for democratic countries and such a “global” threat still afflicts our democracies. Nevertheless, few countries have triggered their emergency provisions, as contained either in national constitution or legislation. Rather, limitations of human rights are often embodied in “ordinary” measures, so posing a high risk of “normalizing” restrictions of rights outside of a legally regulated and temporary state of emergency. How far has the “normalization” of exceptional circumstances come in times of international terrorism in democratic systems? Which is the relationship between international law provisions allowing derogation from human rights embodied in treaties and national emergency provisions? How can the international level impact on the other levels in determining exceptional measures? Are several de facto emergency provisions challenging the above-described models, which classify emergency regimes from a constitutional law perspective?

This chapter presents the significant influence that British administrative law had on Israeli administrative law – starting with the law of Mandatory Palestine, and then dealing with the gradual process of independence which has developed since the modern State of Israel was founded in 1948. The influence of British administrative law has been one of the most enduring legacies of British Mandatory rule in Palestine. At the same time, the Israeli Supreme Court has allowed itself a significant degree of independence in developing on these traditional principles. This process of independent development has intensified since the 1980s, and even more so following developments in the area of constitutional law since the 1990s.