Commentary on Professor Anna-Bettina Kaiser’s talk The State of Exception Under German Law and the Current Pandemic: Comparative Models and Constitutional Rights

Abstract

On the background of the dogmatic reconstruction of the German constitutional law of exception carried out by Anna-Bettina Kaiser, three aspects are briefly addressed here: (i) as demonstrated by the current pandemic, there is a real risk that resorting to the suspension of fundamental rights in an emergency as an exclusive or even main instrument of the constitutional regulation of the state of exception is to be considered obsolete; (ii) moreover, one must question whether it is really inevitable to resort to the suspension of rights or rules as the main instrument for regulating states of exception; (iii) lastly, it is important to highlight one of the main virtues of the “model of restriction of rights” proposed by Anna-Bettina Kaiser and which consists, not only in the preservation of fundamental rights in the greatest possible degree, but also in the preservation of the quality of contemporary democracy.