Ausnahme und Krise – zu den Grundannahmen eines Krisenverwaltungsrechts

Abstract

The last decades’ experience of a continuity of crises seems to trigger a demand for specific means in order to cope with such crises. Lepsius argues that such a thinking from the exception and such a desire to conceive a legal order that is able to foresee any unforeseeable circumstances is mistaken. First, the concept of crisis is fundamentally flawed if applied to law. According to Lepsius, crisis does not indicate a real problem but rather names the cognitive problem not to be able to decipher complexity nor to attribute causation and jurisdiction. Conceptually, crisis works as a metaphor or as a narrative. Hence, it cannot be a regulatory objective. One should not outline administrative law according to legally inconceivable prepositions of crises, Lepsius argues. In a second step, Lepsius deconstructs exceptions as a starting point for legal thinking. German scholarship often is fascinated and misled by the idea of exceptions because of the Weimar experiences and their theoretical framing by Carl Schmitt. However, a legal order deals with exceptions all the time: any application of a general law to a specific case generates specific law that relates to general norms as an exception by application. Hence, one should not overstate the relevance of exceptions as it is often done in German scholarship. Lepsius also demonstrates that it is impossible to determine the opposite of an exception. Such a “normal condition” or “normal application” would be nothing else than a general law. The difference between normal and exceptional conditions simply reflects the difference between a general norm (the law) and a specific norm (its application to a set of facts). Nothing peculiar, therefore, and no justification for any deviance from the regular legal order.