Emergency and Critical Rule of Law Issues

“Exception” is not simply the “state of emergency,” in which the undisputed dominance of the norm over the power persists. It is not the necessity or the force majeure at the base of the causes exempting from the criminal responsibility in behaviors against the law either. It is the “extremus necessitatis casus,” to borrow from Carl Schmitt, in which there is the risk of falling from a constitutionally founded order into a dangerous suspension thereof. Therefore, what concretely distinguishes emergency from exception? Is it always easy to know? What is the risk of confusing the means of the one with those of the other? How do you get to the end of the law, then? These are the main questions of these pages, starting from a few basic considerations about the Covid-19 emergency.