States of emergency are declared frequently in all parts of the world. Their declaration routinely implies a suspension of basic constitutional rights. In the last half century, it has become the norm for constitutions to contain an explicit “emergency constitution,” that is, the constitutionally safeguarded rules of operation for a state of emergency. This chapter asks whether inclusion of an emergency constitution can be legitimized by drawing on social contract theory, arguing that there are important arguments, both against and in favor of constitutionalized emergency provisions, and that social contract theory – as applied by economists – can be of some help when deciding whether to have, or not to have an emergency constitution.

Chapter 2 places Hegel’s views on the nature of constitutions in the context of contemporary discussions of what may be termed constitutional transferability, engaging in particular with the French Revolution and the English constitution. It introduces Hegel’s conception of the constitution as an organism, his denial of the possibility of deriving constitutions ‘a priori’, and his simultaneous support for the introduction of written constitutions and legal codification. Hegel’s account of the nature of constitutions is interpreted as supporting a specific kind of constitutionalism while discrediting another. Through a constitutionalist approach to world history, Hegel sought to resolve the inherent tension between universal demands of reason and local particularity, inscribing the progress of world history with freedom and the representative system. By showing that he could draw on prevailing views in doing so, Hegel’s influential attempt to reconcile organic growth with the demands of reason, history with freedom, and community with the individual is lifted out of isolation. His identification of the representative system with subjective freedom, introduced in this chapter, forms a recurring theme throughout the book.

The chapter discusses influential justificatory theories of human rights and critically assesses their merits. These include sociological theories of human rights (Luhmann), the economic analysis of rights, behavioral law and economics, utilitarian theories of rights, discourse theory (Habermas, Forst, Günther, Wingert), social contract theory (e.g. Rawls, Scanlon), theories that base human rights on human agency, need or interests (Griffin, Tasioulas), the capability approach (Sen, Nussbaum), political conceptions inspired by Rawls’ thought (Beitz) and the eudemonistic approach interpreting human rights as expressions of dignity and authenticity and a life lived well (Dworkin). As a result, it concludes that a theory of human rights has to include the following three elements: first, a theory of human goods that specifies what human rights legitimately aim to protect; second, a political theory of why human rights secure these goods for individuals in human societies; and third, normative principles that determine the normative yardstick for the protection of human goods by human rights in human societies.