Page - 179 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

179The Duty to Govern and the Rule of Law in an Emergency inevitably in breach of the law), and generally stable over time (such that the laws governing conduct in a community are not changing too frequently). These requirements are associated with the idea of reci- procity between those in authority and those subject to law, so that voluntary collaboration is made possible by-laws apt to be followed.8 Though not without their blemishes, well-formed legal systems have a good record of complying with these Rule of Law require- ments, in part because of the law-making process that favours due consideration and deliberation prior to enactment. But such com- mitment to consideration and deliberation is not always possible, as exceptional or emergency situations may arise. A State of Exception A well-formed legal system will anticipate exceptional or emergency situations. It may do so by enumerating such situations, such as war, invasion, insurrection, or a public health crisis, though there are rea- sons to resist too exhaustive a list.9 A legal system may require that a number of different persons or institutions concur in the judgment that an emergency situation has emerged, for example by requiring a resolution of the legislature and requiring its renewal at regular intervals. Such requirement will temper the risk of abuse, but there is another order of risk in the event that debate over a resolution delays urgent action or in the event that the legislature is incapacitated due to the emergency. The risk of abuse of power is nonetheless live because, in award- ing extraordinary powers to a person or small set of persons, the legal system does precisely what the principles of checks and balances and the separation of powers warn against doing. In many established legal systems, it is to members of the executive branch that extraordi- nary powers are vested.10 Across the world, the legislative and judicial 8. See Fuller, supra note 7, chapter II; see also Kristen Rundle, Forms Liberate: Reclaiming  the  Jurisprudence  of  Lon  L  Fuller (Oxford: Hart Publishing, 2012). 9. See Alexander Hamilton, The Federalist Papers (Ann Arbor: ProQuest, 2015) at no 23: “The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” See now Council of Europe, European Commission for Democracy Through Law, Compilation of Venice Commission Opinions  and  Reports  on  States  of  Emergency, CDL-PI(2020)003, (2020). 10. See John Ferejohn & Pasquale Pasquino, “The Law of the Exception: A Typology of Emergency Powers” (2004) 2:2 Intl J of Constitutional L 210.