Legal Risks of Extra-Legal Rule-Making in Special Period

The study examines the legal risks arising from extra-legal rule-making during a special period, particularly under conditions of martial law and heightened security pressures. Its central argument is that legality in a rule-of-law state cannot be reduced to formal obedience to enacted prescriptions. Rather, it must remain substantively connected to the values, purposes, and internal rationality of law, including human dignity, justice, legal certainty, proportionality, and the protection of fundamental rights. The article distinguishes between social norms, state norms, and genuinely legal norms, emphasising that not every rule formally issued by public authority possesses a legal character in the substantive sense.

Particular attention is paid to the danger that, during a special period, exceptional regulatory instruments may acquire the appearance of legality while in fact operating outside the normative logic of the rule of law. Such extra-legal regulation may undermine constitutional legality, legitimise arbitrariness, weaken legal culture, and create conditions for legal nihilism, corruption, abuse of public power, and discretionary enforcement. The study shows that these risks are especially acute where emergency measures are normalised and transformed from temporary responses into stable instruments of governance.

The article also highlights the problem of the militarisation of legal reasoning. Under martial law, security considerations may begin to displace transparency, judicial independence, procedural fairness, and respect for individual rights. In such circumstances, citizens may gradually cease to be treated as holders of rights and instead become objects of administrative control. This creates a broader threat to democratic legitimacy, the social contract, and public trust in legal institutions.

The study concludes that extra-legal rule-making during a special period may produce long-term institutional deformation. If emergency governance becomes detached from the rule of law, it risks eroding the foundations of a human-centred legal order and weakening the state’s capacity to restore constitutional normality after the crisis has passed.