Abstract
This treatise focuses on the state of exception and crisis resolution in a Rechtsstaat and seeks to answer the question of which approach to crisis resolution is the most appropriate to maintain the Rechtsstaat in the long term and to ensure proper performance of its functions. In this paper, I examine the problem of crisis resolution in the context of a Rechtsstaat, inquire into the concept of the state of exception, outline controversies, confusions and problems associated with it, present possible responses of public authorities to exceptional harmful situations and assess their advantages and drawbacks.
Following the conclusion that the state of exception ought to be regulated in positive law, I ask the question how and in accordance with what principles it should be embodied therein. In this context, I suggest that it should be enshrined at the constitutional level in the form of a two-level regulation combining enumerative states of exception with a general one which contains a general clause in the part of the norm setting out the legal consequences of the state of exception and which may be employed only if there is an existential crisis and even the enumerative states of exception do not allow to overcome it.
However, since even broad regulation of the state of exception cannot rule out the need for ultra vires or contra legem steps, I examine whether and under what conditions a suprapositive state of emergency can be vindicated and on what grounds.