Emergency Situations and Source Of Law: Stress Test for Forms of State and Forms of Government

Emergency crises have severely tested the relationship between forms of normative production and forms of government, which has at its core the degree of temporary substitution of the government to parliament in the production of primary sources of law and the preparation of corrective measures aimed at ensuring that the typical elements of the form of government are safe-guarded. The concept of necessity is often used as a factual presupposition, especially in those legal systems that accept the institution of emergency decrees or so-called “temporary” legislation: among European countries, the governments of Spain and Italy have made regular use of the decree-law, which, in the intentions of the constituents, should have embodied the exception (emergency decree) to the rule (ordinary legislation), so much so as to induce the doctrine of both countries to stigmatize the implementation of the government’s political direction by legislating by decree. This phenomenon fits into and emphasizes the crisis of parliaments, increasingly crushed by the political pressure of the executives. The emergency legislative procedures of three countries will be examined: Italy, Spain and the United States, which adopt temporary measures aimed at securing the constitutional system when it is necessary to face a systemic crisis (pandemic, natural disasters, wars, terrorism).