​Patricia Popelier*​

Courts Faced with a Dilemma 

In times of crisis, all eyes are on the government to take swift and drastic action. Formal rules are often set aside, parliament remains in the background, and fundamental rights are severely restricted. Though it is often justified, it can also lead to overreach. This is certainly true for semi-authoritarian regimes eager to use a crisis to increase their power. But even more democratic governments are quick to act too drastically without checks and balances to force them to reflect. Courts may be counted upon to keep the government in check, but this is a moment where trust in the government peaks – a phenomenon widely known as the ‘rally-around-the-flag-effect’. This puts courts in a dilemma. If they oppose widely supported measures, it could cost them legitimacy and potentially prevent the government from acting effectively. If they act with restraint, they abandon individuals who are disproportionately affected, potentially legitimise unlawful government action, provide the government with no incentive to act more appropriately, and risk post-emergency effects when constitutional safeguards are stripped of substantial meaning.  

So, what should courts do? 

What Courts Do 

Generally, courts use more restraint in times of crisis. They interpret constitutional and legal rules in an emergency-sensitive manner. For example, they interpret accessibility criteria rigidly to avoid having to judge on the merits, give the government an exceptionally wide margin, or stretch legal principles. This way, they can balance between efficiency and legality, prioritising one or the other, according to the preferences they perceive in the population or its representatives. 

How much restraint courts use exactly varies over time and across jurisdictions. For example, the Austrian Constitutional Court was much more active than the Belgian Council of State during the pandemic, and the latter gradually became somewhat more attentive. What explains these differences in behaviour?  

Many factors determine how much leeway a court has, such as the constitutional mandate and the political culture. In this blog, I highlight in particular the factors that come on top of these during times of crisis, with a focus on pandemics. I discuss: the emergency model, the legislative basis, the government’s response, the passage of time, citizens’ preferences, and the media. The most important finding in this regard is that, especially in times of crisis, courts seek legitimacy. 

The Emergency Model 

In many jurisdictions, parliaments give a statutory or constitutional basis for swift and drastic government action. This allows the government to bypass parliament or even, with a constitutional basis, to deviate from fundamental rights. The European Court of Human Rights expects courts to scrutinise more intensely when power is concentrated too much in the executive branch (but later, the Grand Chamber found the complaint inadmissible). Then again, parliament’s explicit choice to give the government as much free rein as possible also limits the courts. This means that courts have more room to check that the government acted within a legal or constitutional mandate, but less space to second-guess whether a crisis measure was reasonable.  

By contrast, if the Constitution – like the Belgian one – stipulates that the Constitution remains fully in force, even in times of crisis, this gives courts a clearer mandate to act as the guardian of the Constitution.  

We observe, however, that courts may feel that the government or the population makes a different judgment in light of the acute danger they face. In what Gross and Ni Aolain call the extra-legal measures model, governments can take unconstitutional measures when faced with an imminent or actual danger, subject to conditions of transparency and accountability: they must openly acknowledge the nature of their actions, and the people must ratify their actions ex post. However, by giving their stamp of approval, courts give extra-legal measures an aura of constitutionality, thereby undermining the condition of transparency and possibly misleading the public into giving their endorsement afterwards.  

The Nature of the Crisis 

How parliaments, the government, or courts balance efficiency and legality may differ depending on the nature of the crisis. This is reflected in the Spanish Constitution, where Section 55 distinguishes between a state of emergency and a state of siege. The type of crisis will determine how imminent the danger is and which constitutional rights are impacted. We can therefore expect courts to give more or less leeway depending on the type of crisis. 

The Government’s Response 

The COVID-19 pandemic showed that governments in a crisis may violate constitutional rights through overreach or underreach. The dilemma I presented earlier is not present in the latter case, when the government fails to act. This gives the court more room for a rights-based approach. 

If the government does take action, courts have more scope to scrutinise how the government makes its decisions than what it decides. This is particularly the case when the crisis requires expert-based measures. By checking whether the government made expert-informed decisions, the court confirms that the measures were necessary to protect the right to life or to health and that this outweighed the limitation of individual rights. However, an experimental study suggests that, in the case of a health crisis, this must not lead to a technocracy. Especially in later stages of a pandemic, the public favours crisis measures that weigh safety against social needs and preferences. While, during the pandemic, courts were usually satisfied when decisions were expert-based, they have room to also check whether they were informed by stakeholders.  

The Passage of Time 

The courts’ attitude may gradually change towards a more rights-based approach as the crisis evolves. With the passage of time, the situation evolves. For example, during the COVID-19 pandemic, the rally-around-the-flag effect diminished, the health situation fluctuated, and vaccines allowed for a more targeted approach. Under these circumstances, the increasing pressure on individual rights and freedoms altered the overall balance, giving courts more room for a more critical scrutiny of crisis measures. 

Citizens’ Preferences 

Courts are not the ‘counter-majoritarian’ institutions they are often portrayed as. Instead, they seek legitimacy by bonding with the government or aligning with the public when public opinion seems to diverge from government action. For this reason, the public’s trust in the government is a valuable indicator of the space that rooms have to scrutinise government action. They have less scope in the first phase of a crisis, when the rally-around-the-flag effect is in full swing, but less so when this effect fades and public trust decreases.  

Importantly, citizens also weigh efficiency and legality. The more they value legality in crisis governance, the more space there is for courts to keep the government within legal boundaries – and vice versa. A survey in six European countries showed that citizens do value legality in crisis governance and that perceptions of legality determine trust in the government. However, other values are prioritised, and legal culture determines how high legality is ranked. In this survey, Austria and Belgium were the outliers: Belgian citizens put high trust in the government to combat the pandemic and believed the most that the government respected legal procedures; Austrian citizens painted the opposite picture. This was striking because Belgian constitutionalists had firmly criticised the lack of a solid legislative basis for the far-reaching measures. However, the Belgian apex courts had closed ranks to legitimise the Belgian Government, whereas the Austrian courts had scrutinised the COVID-19 measures more intensely and invalidated the measures more often.  

This suggests that the public relies on the courts to shape their perception of legality. As mentioned, if courts go to great lengths to legitimise crisis measures, they may mislead the public into giving their endorsement afterwards. The question, then, is why the Belgian courts were less reluctant than the Austrian courts to scrutinise crisis measures. Part of the explanation may lie in the public’s preferences. The same survey revealed that only one-fifth of the Belgian respondents indicated ‘legality’ as an important crisis management value, preferring ability, whereas Austrian respondents preferred legality (40%) over ability (28.5%). This value prioritisation may colour their expectations as to how strictly authorities must follow the rules in times of crisis, and in this way, impact the scope for judicial scrutiny. If this indeed explains (even partly) the difference in the behaviour of the courts, this supports my argument that courts seek legitimacy. 

Media 

If public opinion determines the scope for judicial scrutiny of crisis governance, then, indirectly, the media also play an important role. Traditional and social media shaped the public’s opinions, attitudes, and risk perceptions during the COVID-19 pandemic and helped to promote health and hygiene practices. As the public generally does not read court decisions, we can assume that the way the media reported on the COVID-19 jurisprudence helped shape the public’s perceptions about the legality of the crisis measures. The same applies to the opinions of political elites.  

Conclusion 

In times of crisis, courts are faced with the dilemma of whether to legitimise crisis government or protect constitutional rights against government overreach. The courts’ responses vary over time and across jurisdictions. This blog post discussed the constitutional emergency model, the nature of the crisis, the government's response, the passage of time, citizens’ preferences (including trust and values), and the media as possible factors that explain this variety. My conclusion is that courts seek legitimacy and they do so in various ways. 

First, they follow how the political branches have weighed legality and efficiency concerns. This is, in the first place, based upon parliament’s balance as reflected in the constitutional and legislative emergency models. However, if the government, faced with a real-life crisis, makes a different balance, courts are eager to cover this up through interpretative accommodation.   

Second, whether courts are prepared to cover up extra-legal measures depends on how much the public trusts the government and how the public, in their view, weighs up legality and efficiency. A different legal culture may then explain why courts see more scope for the scrutiny of crisis measures in some countries compared to others. In turn, new developments that affect the imminence of danger, and changes in the public’s trust, explain the variety over time in the behaviour of each court separately.  

Third, legitimacy concerns require restraint when it comes to second-guessing the content of crisis measures, but they leave more scope to examine whether specific government action was itself legitimate. This means: more scope to examine whether it was based on a law or the constitution, as approved by parliament, or to examine whether the measure was adopted with due care; for example, informed by expert advice and, especially in a later phase, by stakeholders. 

When courts do not seek legitimacy in this way, but simply rubberstamp government action for fear of hindering efficient crisis management and lowering the public’s trust, they run several risks. They perpetuate unlawful behaviour at the expense of individuals whose rights are infringed, rather than providing a learning opportunity. Techniques that allow courts to invalidate an unlawful measure but maintain its effects for a certain period of time may offer a compromise. Another risk is that a lenient attitude creates false perceptions, misleading the public into endorsement. If this gets dismantled, it can backfire on the courts, resulting in a decline in public trust in the courts. A last risk is that interpretative accommodation may have long-term ex-post crisis effects, undermining constitutional safeguards, and making the system defenceless against authoritarian power grabs.    

*Professor of Constitutional Law (University of Antwerp, Government and Law Research Group and Govtrust Centre of Excellence). The blog post is based on my contribution to L. Baicalupo et al., Decision-making in the age of emergencies,  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6725229.  ​

References 

Abiri G. & Guidi S. (2021). The Pandemic Constitution. Colum. J. Transn. L., 60, 69-131. 

Ginsburg T. & Versteeg M. (2021). The Bound Executive: Emergency Powers during the Pandemic. Int’l J. Const. L., 19, 1498-1535.   

Gross O. & Aolain F.N. (2006). Law in Times of Emergency. Emergency Powers in Theory and Practice. Cambridge University Press.  

Frateur J. & Popelier P. (2026). Revising the Efficiency vs. Legality Debate: A Trust Perspective on Crisis Legislation. TPLeg. 14, 90-116.   

Popelier P. et al. (2021). Health Crisis Measures and Standards for Fair Decision-Making: A Normative and Empirical-Based Account of the Interplay Between Science, Politics and Courts. Eur. J. Risk Regulation, 12,  618-643.