A “New Normal”: Legality in Times of Necessity: French Administrative Law under the Health Emergency

States of emergency test the limits of constitutionalism and our commitment to the rule of law (Dyzenhaus 2012). They tell us something about the ultimate power in a society and the very nature of state powers. French constitutions have a long history of arising from crises, revolutions and overthrows. The current political regime was born in 1958 at the time of the Algerian war of independence. More recently, the French have lived under a sustained period of emergency regulations following the terrorist attacks in Paris in November 2015. Now that a state of health emergency has been declared and extended it is possible to reflect on how key principles relating to the rule of law, such as legality and judicial control, are being re-shaped. This helps us to reflect on how the state seeks to command compliance from its citizens and how a balance is struck between necessity and legality. Key stages can be identified: a first stage when (judicial) control is muted and a second stage when judges re-assert their role once the risks linked to the pandemic have been curbed. This differentiation both confirms the risk of normalising an executive state of emergency (at the time of the peak) and the possibility of a judicial state of emergency emerging (once the first wave is over) (Ginsburg and Versteeg 2020). This brings into question how the next steps in the health emergency can be made subject to robust scrutiny and accountability mechanisms as necessity evolves.