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LIT-1473: Unconstitutional States of Emergency

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Properties6
StatusActive — read in full 2026-10-24 (NOTE-1125) from the August 2021 ILE working paper, not the version of record; worth reading as the first cross-national count of states of emergency coded for lawfulness. Of 853 national SOEs, 1949–2017, 115 were reported unlawful, 97 of them after political turmoil and 14 after natural disasters; unlawful ones lasted 321 days on average against 115. Coding by news and NGO reports ("suspected to be unlawful", the authors' gloss), weak logits, and no data on whether emergency measures outlive the emergency. Several statements in the abstract and conclusion outrun the tables.
Version2
Tagssociety-and-governance
SupportsCLAIM-445 — A protective regime, in a person, an institution or a system of states, becomes self-maintaining when the interventions it authorizes shift the evidence used to judge its necessity, the authority and resources of those who judge it, the capacities of its constituents or the threat environment itself in ways that favour its continuation; this can happen when the original threat was real and the first protection apt, and it is a failure only where the regime has become less responsive to evidence that it is no longer needed
Cited as “paper” byNOTE-1125 — Bjørnskov, Voigt & Khesali — Unconstitutional states of emergency (2021 working paper)
Cited as “source” byTHEORY-1198 — Unlawful states of emergency, in declaration, conduct or duration, follow political turmoil far more often than natural disasters, are rarer in democracies than in autocracies, and last much longer than lawful ones, THEORY-911 — Of 853 national states of emergency declared from 1949 to 2017, 115 were reported as unlawful in declaration, conduct or duration; 97 of those followed political turmoil and 14 natural disasters, democracies were less likely than autocracies to run one, and those so coded lasted 321 days on average against 115, a gap the coding of overlong emergencies as unlawful builds in part

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Bjørnskov, C., Voigt, S. & Khesali, M. (2022). Unconstitutional states of emergency. The Journal of Legal Studies 51(2): 455–481. doi:10.1086/718681. Earlier versions: ILE Working Paper No. 51, University of Hamburg (August 2021), hdl:10419/237375; SSRN, doi:10.2139/ssrn.3914141 (2021).

Key takeaways

From the reading, NOTE-1125. Page numbers are the 2021 working paper’s.

  • The count. “115 out of 853 analyzed SOEs as unconstitutional” (p. 3), coded from Factiva, Lexis/Nexis and NGO reports and from durations past the constitutional maximum; probably an undercount (pp. 13–16).
  • Cause. 97 of the 115 followed political turmoil, 14 natural disasters (p. 22). Democracies 49 of 512, autocracies 62 of 313 (Table 1).
  • Duration. “Lawful SOEs last 115 days on average while the average duration of unlawful SOEs is 321 days” (p. 22).
  • Weak structure. “there is amazingly little systematic structure in the data” (p. 20); pseudo-R² at most 0.07.
  • What it lacks. Whether emergency measures survive the emergency: “we have no data on this aspect of unlawful emergency behavior” (p. 6, fn. 2).

Why this is here

The exchange cited it at turn U16 for the gap between emergency law and emergency practice: 115 of 853 declarations unconstitutional. The abstract confirms the figures; its own word for them is “unlawful”.

Corrected 2026-10-24, from the reading. The paper uses “unlawful” and “unconstitutional” interchangeably, and both mean reported or suspected: the authors say the cases “could also be called “suspected to be unlawful.”” (p. 14). The gap it measures is in declaration, conduct and duration during emergencies, not emergency powers outliving emergencies, which it names and cannot measure. Its strongest support for CLAIM-445 is prolongation: unlawful emergencies run nearly three times as long, and the authors hypothesize, without testing, that executives prolong an emergency to postpone review of their conduct under it (p. 11). Filed from it: THEORY-911.

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