Oikeusvaltion itsepuolustuksen valtiosääntöteoreettiset perusteet ja rajalaki
Avainsanat:
oikeusvaltion itsepuolustus, valtiosääntöteoria, poikkeustila, rajalaki, perustuslakivaliokuntaAbstrakti
Foundations of the self-defence of the rule-of-law state and Border Security Act
The article examines the actualisation of the self-defence of the rule of law through the lens of Carl Schmitt’s constitutional theory. The inquiry is situated within the contemporary challenges confronting the Finnish constitutional order, notably the hybrid operations attributed to Russia, which have put the resilience of constitutional and legal institutions to the test.
The article distinguishes between two aspects for safeguarding the rule of law: formal constitutional guarantees and the self-defence of the rule of law. Prior to discussing the constitutional mechanism itself, the self-defence of the rule of law must first be examined as a socio-legal phenomenon. The article critically examines the foundations of the self-defence of the rule-of-law state that should be considered when defining its legal boundaries.
The article focuses on the enactment of the Act on Temporary Measures to Combat Instrumentalised Migration (482/2024, Border Security Act). The enactment of the act is analysed from the perspective of Schmitt’s theory of states of exception, which is part of his constitutional theory. At the core of this analysis is the opinion issued by the Constitutional Committee of the Finnish Parliament on the Border Security Act. The article demonstrates that the Constitutional Committee’s opinion on the Act exhibits certain features of the self-defence of the rule-of-law state but does not yet constitute a systematic doctrine. In addition, the article introduces a framework for analysing the self-defence of the rule of law as a phenomenon situated at the intersection of law, power, and politics within the framework of the Finnish constitutional order.
