Emergency powers are continuous with normal law, not exceptions to it

Evidence

Giorgio Agamben disagreed with Schmitt on this point, arguing in effect that the state of exception lay neither in nor above the normative legal order, thus in effect constituting no exception in any qualitative sense. It remains a primal form of modern juridico-political systems; rising out of its dormancy at any time, the perception of existential threat is awakened. It is constituted not as an essential difference but rather as a continuation of law by extrajustificatory methods. … Instead, my argument goes, it is lodged amid the normative order, defining the potentialities of its force and implicitly determining its operations, even when the rules of the so-called normative order are in effect. — Wael Hallaq, Restating Orientalism, 406

Categorization

• XREF: This is the core Agamben-vs-Schmitt dispute over sovereign exception; connects to debate over emergency powers and permanent states of exception in contemporary politics. — connects to: Emergency conditions justify exercising power but do not themselves create it — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 2823
• DEEPTHINKING: The claim that the ‘state of exception’ is not an anomaly but the dormant substrate of normative order itself — defining what the law can do even when it isn’t invoked — is a genuinely paradigm-shifting way to read legal systems.