Tuukka Brunila

In this article, I analyse the expansion of concept of emergency in the Finnish legal system by means of amending the Emergency Powers Act (1552/2011). The Act is the one of the main vehicles for regulating the use of emergency powers. The Act lists six distinct exceptional circumstances that authorise a state of emergency. Amendments to the Act have served to expand the definition of emergencies in the Constitution (Section 23) and the concept of emergency in general. By analysing the travaux préparatoires of relevant amendments, the focus is on the principles in expanding the concept. I argue that one of the main principles in developing the concept through legislation is preciseness. Emergencies should have to be defined by means of legislation as precisely as possible. In analysing the main principles in expanding the concept of emergency, this article seeks to also emphasise the tensions between these principles. As I will point out, sometimes preciseness is outweighed by the need to ensure that the Act accommodates all emergencies exhaustively.

Constitutional resilience in emergencies: A conceptual analysis of the normalisation of exceptions. This article examines the normalisation of exceptions using conceptual analysis. The aim is to use a conceptual engineering approach to develop and ameliorate the concept of the normalisation of exceptions to analyse and understand threats related to emergency legislation. The argument is that the normalisation of exceptions is therefore a necessary concept in terms of constitutional resilience. However, this concept is currently defective, as it is used in research in an unclear and ambiguous manner. Through conceptual analysis, the normalisation of exceptions is refined as a process in which the scope of exceptions is expanded in a manner that violates the constitution through legislation that makes the expansion quasi-normal. The term quasi-normal emphasises that expansions of the scope of exceptions through exceptional laws does not make them normal from the constitutional perspective. After refining the concept of normalisation of exceptions, it is applied within the framework of the Finnish legal system. The article suggests that the concept is meaningful in examining Finnish legalist legal culture and can be used to identify key threats to the constitution.

This study examines the role of courts in ensuring judicial protection during emergencies and exceptional times more broadly. We review case law from Finnish courts (Supreme Administrative Court, Supreme Court) as well as European courts (Court of Justice of the European Union, EFTA Court, European Court of Human Rights) during the COVID-19 pandemic. The study focuses on case law related to pandemic governance or involving legal assessments related to the pandemic. In particular, we analyse court decisions regarding fundamental rights restrictions introduced during the pandemic. We present transversal observations from the case law and reflect on the role of courts in ensuring judicial protection during the pandemic and in crises more broadly. Our conclusions suggest that both Finnish and European case law highlight safeguarding active judicial protection as the courts’ role, which is in principle independent of the regulation of emergencies or exceptional times more broadly.

In this article, I analyse the legal practice of Finnish legislative emergency preparation and its principles. In approaching the principles of legislative emergency preparation, a distinction is made between the role that law takes in promoting the resilience of society and the resilience of the legal system itself. By differentiating societal and legal resilience, the article approaches legislative emergency preparation as something that includes both forms of resilience and objectives specific to them. My research question concerns how recent Finnish legislation on responding and preventing hybrid threats affects the balance between these two types of objectives. To approach this phenomenon, I define two temporal principles of emergency governance: the temporal limits of the state of emergency and the temporal distinctiveness of the state of normalcy and emergency. I argue that recent legislation, in which concerns of societal resilience tend to enjoy preference, contradict these two temporal principles.

In this article, I analyse the tensions between the need for swift action and enactment of emergency legislation during Finland’s COVID-19 pandemic response. I focus on how this demand for the executive branch to take swift and decisive action met and clashed with the temporal (in)efficiency of emergency legislation. A legalist emergency measures theory is developed to approach this issue in the context of the Finnish emergency regime, which is legalist in principle. Legalist emergency regimes are those that (1) require emergency measures to be grounded in law, (2) seek to legislate emergency powers in advance, and (3) necessitate that legislation is active during emergencies. Based on reports regarding the executive branch’s actions during the pandemic, I discuss issues regarding the alleged slowness of legislation during emergencies. The article seeks to further develop the theoretical discussion on the temporal aspects of emergency measures.

In this article, we analyze how the checks-and-balances principle in the Finnish Constitution regarding the declaration of the state of emergency. We first discuss the basic principles of the separation of powers and checks and balances, and explicate how these principles are relevant to declaring a state of emergency (section 2). We then move on to analysing the Finnish legal order, de lege lata, regarding the declaration of the state of emergency, both on the level of the Constitution and on the level of the Emergency Powers Act (section 3). This section elaborates the role of the legislative branch in checking the executive and the authority of the executive(s) in declaring a state of emergency. By means of our theoretical discussion and legal analysis, we will evaluate critically the declaration requirement’s political entailments for the Finnish legal system and propose some changes for the future, de lege ferenda (section 4). This evaluation critically assesses the present legislation regarding the declaration and its recent practice during COVID-19 pandemic.

This article examines legal resilience during the COVID-19 pandemic. A key political character of emergencies is a shift in the balance of power towards the executive and away from other branches of government. As a consequence, a tension ensues both between the rule of law and effective emergency governance and between various human rights. These tensions challenge legal resilience as emergency governance requires flexibility from the legal system. Our focus is on the role of legislative oversight in upholding legal resilience during emergencies. In the Finnish context, we analyse the role of the Finnish Constitutional Law Committee of Parliament in managing these tensions that challenged legal resilience during the COVID-19 pandemic. The Constitutional Law Committee, in upholding the rule of law, has had a role in overseeing the executive branch of government and ensuring the fulfillment of human rights during the exceptional situation. Furthermore, because the pandemic has required new laws and authorities, it is crucial that legislation does not threaten the resilience of the legal system. In a crisis, legislation without proper checks might be too hasty and threaten the rule of law. For this reason, legislative oversight needs to take place even during emergencies. During the pandemic, the Constitutional Law Committee has intervened in hurried legislative processes, in situations when the government has sidelined the parliament and in situations creating exceptions to human rights. We argue that all these interventions have been important in upholding legal resilience and democratic legitimacy. The article begins with a theoretical discussion about legal resilience and its components. Next, we analyse how the Constitutional Law Committee has functioned during the pandemic. Then, we evaluate how its functioning has contributed to the resilience of the legal system. Finally, we discuss the aspects of emergency governance in Finland that require attention in further developing this resilience.

This thesis focuses on Carl Schmitt’s political theory of the strong state and the way his own concept of the political justifies strong coercive methods to de-politicise the economy. According to Schmitt, the strong state should have the legitimate capacity to counter democratisation of the economy and limit the possibility of social movements from “confounding” (Verwirrung) or “confusing” (Vermischung) the state and economy. Unlike many, who argue that Schmitt was in this extent (an economic) liberal, as he sought to uphold a distinction between politics and economy, I argue that behind Schmitt’s institutional distinction between state and economy lies an explicitly anti-liberal conceptual distinction between the political and social. It is the task of this conceptual distinction to justify strong coercive means to counter socialist demands for economic justice. The distinction is anti-socialist or anti-democratic as it tries limit the “uncontrollable” expansion of the state into the economy by establishing the autonomy of the political from the economy. This enables him to accuse democratic forces of illegitimately “politicising” the economy in a way that contradicts this necessary autonomy. On the other hand, the distinction is anti-liberal as it does not argue for the autonomy of the economy, but its relative dependence on the strong state to uphold social order necessary for capitalist system of production. I have decided to use the term “authoritarian distinction” to define Schmitt’s conceptual distinction and its normative implications. The authoritarian distinction between the political and social is not simply a conceptual distinction but it establishes a normative basis for re-organising the relationship between the state and economy. In order to flesh out the specific nature of Schmitt’s authoritarian distinction, I have connected his thought with other theories of sovereignty and how they support the state’s authoritarian relationship with the economy. The thesis has three objectives. First, I want to develop a form of analysis of Schmitt’s work that connects his theoretical work with political struggle. To engage in political theory and conceptual work means to take part in politics. The concept of the political is no different, and it cannot be detached from political and normative entailments as it seeks to transform the way we perceive politics. In contrast to those who argue that Schmitt’s work on the concept of the political can be abstracted from his own political objectives, I analyse his conceptual work in tandem with his texts that explicitly engage in the politics of his time. On the basis of this analysis, I show that Schmitt’s abstract work takes part in the class struggle that was prevalent in the Weimar Republic. The conceptual distinction between the political and social is at the heart of his attempt to authorise exceptional measures to counter the labour movement of his time. Second, it is far too often that all distinction of the state and economy are reduced to analyses of liberalism. This has meant that Schmitt, too, has been claimed to adhere to a version of liberalism simply because his theory justifies limiting the politicisation of the economy. To me it seems that the focus on the liberal side of de-politicisation has produced a very one-sided narrative. In order to argue this, I discuss to an extent other theorists of sovereignty, namely Hobbes and Rousseau, and point out that even they sought to establish a distinction between the state and economy in a way that contradicts liberalism but still leaves capitalist means of production intact. To reduce Hobbes or Schmitt to a role of a precursor to liberalism means to look aside the specific nature of their theory – and, for that matter, the specificity of liberalism. Furthermore, I discuss to an extent how both liberals and these various theories of sovereignty are similar in so far as they accept the modern development of the economy as its separate sphere from politics. Third, I want to criticise the recent attempts to appropriate Schmitt’s concept of the political on the left. Many have argued that Schmitt’s concept of the political as autonomous to the social is useful in overcoming traditional Marxism and use for radicalising democracy. However, my thesis suggests that this strategy needs to be problematised, as Schmitt’s conceptual distinction cannot be separated from his anti-democratic and -socialist economic policies. In the future, I hope to further explore this need to re-think the relationship between the political and social, and whether or not we should return to a more standard Marxist understanding of this relationship.

The COVID-19 pandemic has made relevant questions regarding the limits and the justifications of sovereign power as nation states utilize high degrees of power over populations in their strategies of countering the virus. In our article, we analyze a particularly important facet of the strategy of sovereignty in managing the affects caused by a pandemic, which we term the ontology of war. We analyze the way in which war plays a significant role in the political ontology of our societies, through its aiming to produce a unified political subject and an external enemy. Taking our theoretical cue from Butler’s thinking on frames of recognizability we extend her theory through augmenting it with affect theory to argue for how the frame of recognizability produced by the ontology of war fails to guide our understanding of the pandemic as a political problem, a failure that we analyze through looking at the affective register. We argue that the main affect that the nation state tries to manage, in relation to the pandemic, through the ontology of war is anxiety. We show that the nation state tries to alleviate anxiety by framing it through the ontology war, this leads to the appearance of a potentially racist and nationalist affective climate where the “enemy” is no longer felt to be the virus, but members of other nations as well as minorities. We argue that the pandemic reveals both the political ontology of war central to the foundation of our political communities, and how this ontology is used by the nation state to manage feelings of anxiety and insecurity. Ultimately, as we will discuss at the end of this article, this leads to failure.

In this article, we analyze the political ontology of the nation state in the context of the pandemic and cosider how the virus has been made a part of it. Our argument is that the discourse regarding a war on the virus embodies an attempt to control the chronic insecurity and anxiety caused by the pandemic. Combining the work of Coernelius Castoriadis and the affect theoretical approach of Andreja Zevnik and Brian Massumi, we build a framework through which we make intelligible the foundational role played by historically constituted shared networks of meaning and the political ontology it creates, as well as the affects leaning on it in our reactions towards the pandemic. By analyzing Carl Schmitt's understanding of politics, we locate the political ontology framing the pandemic as an ontology of war. Through this, we make visible how the management of insecurity through the distinction between friend and enemy becomes an affective channel for the insecurity caused by the pandemic.

Postfoundational political theory has been criticized for being incapable of establishing a normative basis for politics. This is because postfoundationalism's conception of the “political” as a radical contingency disproves the existence of an objective ground that would make it possible to evaluate political movements from a neutral position. In this article, I counter this critique by distinguishing between Chantal Mouffe's political theory and other postfoundational theories based on their respective normative implications. This is done by explicating how Mouffe's way of conceptualizing the political implies a conservative political disposition. In order to accomplish this, I develop an understanding of the conservative political disposition, which refers to the normative idea that police power is necessary for producing and upholding a social order. Through an analysis of Carl Schmitt's theory, I elaborate that the conservative disposition is an attempt to justify the depoliticization of social relations. On the basis of this idea that some political theories have normative implications that are in line with the conservative disposition, I examine postfoundationalism. My argument is that while Mouffe's theory does imply the idea that police power is necessary, this is not the case with other postfoundational theories. On the contrary, other postfoundational democratic theories categorically deny that a form of power, namely police power, would be necessary.

Tärkeä ulottuvuus modernissa tavassa ajatella politiikkaa on erottelu politiikan ja talouden välillä. Tässä artikkelissa käsittelen tätä erottelua konservatiivisen oikeustieteilijä Carl Schmittin poliittisessa teoriassa ja varsinkin hänen talousliberalismin kritiikissään. Liberalismi rajasi Schmittin mukaan talouden omaksi autonomiseksi alueekseen pyrkimällä rajaamaan valtiovallan oikeutta vaikuttaa siihen. Tämä kuitenkin johti hänen mielestään poliittisen siirtymiseen valtiolta talouteen, eli taloudellisten suhteiden politisointiin. Artikkelini analysoi Schmittin kritiikin ohella myös hänen omaa teoriaansa vahvasta valtiosta. Schmitt vastasi liberalismin heikkouteen argumentoimalla, että vain vahva valtio voi ylläpitää talouden autonomisuutta. Argumenttini on, että toimiessaan näin Schmitt ei lopulta ylitä modernille poliittisella ajattelulle ominaista erottelua valtion ja yhteiskunnan välillä. Päinvastoin, Schmittiä ja liberalismia yhdistää pyrkimys tavalla tai toisella erotella talous politiikasta. Artikkelini avulla voidaan monipuolistaa sitä kuvaa, joka poliittisessa filosofiassa ja teoriassa on talouspolitiikan ja -hallinnon historiasta. Argumenttini vahvistaa ajatusta siitä, että käsitteellinen erottelu talouden ja politiikan välillä on perustavanlaatuinen modernille poliittiselle ajattelulle.