For the sake of brevity, these models cannot be explored further, but this quick overview shows how they would contribute to a degeneration of the formal rule of law. A striking aspect of both types of models is the “total instrumentality”35 with which the rule of law can be used while being preserved. Gross`s model holds that one of the formal imperatives – the congruence between declared rule and official action – can easily be sacrificed while ensuring otherwise normal functioning of the legal system. However, this sacrifice is offered, at least in part, by the desire to remove other constraints of the legal form. Think in particular of the objections raised against the requirements of clarity, foresight and generality. Therefore, it can be assumed that the emergency actor also waives compliance with some of these wishes in his emergency response. It should also be borne in mind that failures in this area tend to be cumulative, so these formal deficiencies cannot be considered to be self-contained. The implications of Tushnet`s model are even more troubling in this regard. There seems to be little reason to give special status to rule of law considerations in deliberations on the need or desirability of emergency measures. Some groups may have an interest in upholding these principles, and some professions may even have developed an internal commitment to them, but ultimately a political calculation must be established that is always the sum of a mixed pragmatic, instrumental, and moral consideration.36 While Gross` model may undermine the functioning of a legal system, at least seeks to undermine a considerable number of ordinary legal norms.

preserve. According to Tushnet, governance can be pursued through rules-based standards with potentially unlimited flexibility. In response to these hazards, models are being developed to establish more realistic and effective limits for emergency response. Modern proponents of extrajudicial emergency measures are committed to the idea that if the law cannot provide the necessary guidance, restrictions must be drawn from elsewhere. Two positions can be distinguished. Similarly, attempts to proclaim clear forward-looking norms defining and limiting a particular state of emergency and permissible responses are doomed to failure because “the outer limits and limits of the penumbral [emergency] are not clear and cannot be clarified in advance.”24 It will be inevitable to determine the states of emergency that may arise and the criteria that will guide the governance of these states. 25 If a given norm determines its content and the manner in which it is applied, it will be an exercise of political power, which is distinct from a serious attempt to determine the meaning of a predetermined provision and to direct the exercise of official authority.26 The possibility of a legal form of government is also supported by the way it is in which several European countries have a continuous national response to the pandemic. Despite some difficulties and varying successes, these actors have deliberately tried to comply with the formal principles of the rule of law. To this end, some States have relied on the powers and exceptions provided by existing constitutional and/or legislative provisions, some have adapted these laws and others have introduced exceptional legal instruments to support their response to emergencies.52 A number of examples can be cited in this context. The German response was based on the existing legislation mentioned above, which was, however, gradually modified as the pandemic evolved.53 In Spain, a state of emergency (in particular the “state of alert”) was declared in accordance with Article 116 of the Spanish Constitution54, and in France, a new health emergency was codified as ordinary legislation in the Health Code.55 It is true that attempts to govern within the framework of the law and have sometimes violated the eight desiderata. For example, the early response of the British government was problematic, plagued by relative lack of precision, instability, incoherence and sometimes dubious claims to executive power.56 However, these were partly flaws and far from the radical and supposedly inevitable flaws that supposedly required extra-legal governance.