–Dr. Tuğba Tosun Çobanoğlu, independent researcher in legal psychology[1]
In recent decades, democratic legal systems have increasingly been confronted with a recurring paradox. On the one hand, international human rights norms continue to proliferate through new treaties, judicial interpretations, and constitutional commitments. On the other hand, the practical protection of these rights appears to be gradually weakening. Such weakening rarely occurs through dramatic constitutional breakdowns or explicit authoritarian ruptures (though these can, and do, happen). Instead, it often unfolds quietly through incremental legal and institutional developments that reshape the everyday functioning of democratic governance.
This trend can be observed in recent global developments. For example, during the COVID-19 pandemic, many European states introduced emergency measures that restricted fundamental rights such as freedom of movement and assembly, as reflected in the case law of the European Court of Human Rights. Similarly, counter-terrorism laws have expanded state powers in ways that have raised concerns about long-term impacts on human rights protections, according to United Nations reports on counter-terrorism and human rights.
The contemporary debate on emergency powers and constitutional resilience has largely focused on dramatic moments of crisis. Scholars have examined how states respond to terrorism, migration pressures, or public health emergencies through the invocation of exceptional legal measures. This issue has been widely discussed in the academic literature. For example, Oren Gross and Fionnuala Ní Aoláin have examined how emergency powers reshape constitutional frameworks over time, while Giorgio Agamben has critically analyzed the normalization of exceptional measures within democratic systems. However, less attention has been devoted to the gradual processes through which these exceptional measures become embedded within ordinary governance structures. The challenge for modern constitutional democracies may therefore lie not only in the immediate response to crises, but also in the long-term consequences of the legal frameworks created in their aftermath. This post therefore contends that the true risk to human rights in democratic societies emerges not from moments of crisis alone, but from the subtle and cumulative normalization of exceptional powers over time.
This phenomenon can be described as involving the silent erosion of human rights. Rather than openly suspending rights, democratic governments frequently reinterpret, restrict, or procedurally modify them in ways that remain formally compatible with constitutional legality. The legal architecture of human rights remains intact, yet the practical scope of those rights gradually narrows.
The increasing reliance on emergency governance illustrates this dynamic. Governments often justify temporary limitations on fundamental rights by invoking urgent threats such as national security concerns, terrorism, migration crises, or public health emergencies. For example, during the COVID-19 pandemic, many European states imposed restrictions on freedom of movement and assembly, raising important legal questions under Articles 5 and 11 of the European Convention on Human Rights, as reflected in the case law of the European Court of Human Rights. Similarly, counter-terrorism frameworks adopted in several jurisdictions have expanded executive powers and surveillance practices, prompting sustained concerns about proportionality and long-term impacts on fundamental rights, as highlighted by the United Nations Office of the High Commissioner for Human Rights. These measures are typically presented as necessary and proportionate responses to extraordinary circumstances.
Returning to the experience of the COVID-19 pandemic, governments across democratic states introduced emergency legislation restricting movement, assembly, and economic activity in response to an unprecedented public health crisis. In many cases, these measures were adopted rapidly and with broad public support. However, the pandemic also demonstrated how easily extraordinary powers can reshape legal and institutional practices. In several jurisdictions, measures initially introduced as temporary responses, such as expanded digital surveillance tools, contact-tracing infrastructures, and enhanced executive discretion, have in part persisted beyond the immediate crisis period, raising concerns about their normalization within ordinary governance frameworks, as highlighted by the United Nations Office of the High Commissioner for Human Rights. These developments also raise broader constitutional questions regarding the durability of emergency governance in democratic systems, as reflected in the case law of the European Court of Human Rights.
From a constitutional perspective, the normalization of exceptional measures raises fundamental concerns. Constitutional democracies are built upon the assumption that governmental power must remain constrained by legal rules, institutional oversight, and the protection of individual rights. Emergency powers are tolerated precisely because they are expected to be of a temporary nature. If such measures gradually become permanent, the normative foundations of constitutional governance may be placed under strain.
The concept of the state of exception, famously explored by Giorgio Agamben, captures this tension between legality and emergency governance. Agamben argued that modern political systems increasingly operate in a space where the boundary between exception and norm becomes blurred. While the state of exception was historically understood as a temporary suspension of legal norms, contemporary governance often integrates exceptional powers into ordinary legal frameworks. For example, in France, certain emergency surveillance powers introduced after the 2015 terrorist attacks such as expanded digital surveillance, preventive administrative searches, restrictions on freedom of movement, and enhanced executive discretion were later incorporated into ordinary law, reflecting a broader trend of normalizing exceptional measures within standard governance frameworks. As a result, exceptional governance risks becoming a structural feature of political authority rather than a temporary response to crisis.
However, as mentioned, the erosion of rights in democratic systems does not necessarily occur through overt authoritarianism. Instead, it often takes place within the language and structures of legality itself. Governments rarely abolish rights outright. Rather, they reinterpret legal norms through flexible concepts such as national security, public order, or risk management. Courts may uphold such measures by emphasizing proportionality or the exceptional nature of the circumstances. Over time, repeated reliance on these justifications can gradually expand the boundaries of what is considered legally permissible
This dynamic creates what may be described as an illusion of compliance. Human rights remain firmly embedded within constitutional texts, international treaties, and judicial discourse. States continue to affirm their commitment to the protection of fundamental freedoms. Yet the practical capacity of individuals to rely on these rights may be progressively weakened through procedural limitations, administrative discretion, or expansive interpretations of security-based legal concepts.
The consequences of this gradual transformation however extend beyond individual rights protections. The silent erosion of such rights may also affect the broader functioning of democratic institutions. Constitutional governance relies upon the predictability of legal norms, the accountability of public authorities, and the effective limitation of political power. When exceptional governance practices become routine, these principles may gradually lose their stabilizing force. This occurs through a gradual process in which exceptional measures, initially justified as temporary responses, become embedded in ordinary legal frameworks. As these practices are repeatedly normalized, institutional actors including courts and legislatures begin to treat them as standard tools of governance, thereby reducing the threshold for their future use and consolidating their status as a stable norm. In this sense, the state of exception risks evolving into a stable governing paradigm, where extraordinary measures are no longer perceived as deviations from the norm but rather as an integral part of it.
One of the most significant risks in this regard is the expansion of executive authority. Emergency legislation often grants governments wide discretionary powers to respond rapidly to perceived threats. While such flexibility– such as emergency decrees, expanded surveillance powers, or accelerated legislative procedures may be justified during genuine crises, the persistence of these powers beyond the emergency context can alter the institutional balance between the executive, legislative, and judicial branches of government. Parliamentary oversight may weaken, particularly where emergency powers are repeatedly extended with limited legislative scrutiny, while courts may become increasingly deferential to governmental assessments of risk or necessity.
The normalization of exceptional governance may also reshape public expectations of freedom. Unlike dramatic authoritarian ruptures, which tend to provoke visible political resistance, gradual legal transformations often occur with limited public attention. Citizens may adapt to reduced rights protections when restrictions are framed as reasonable responses to security concerns or crisis management. Over time, the threshold for acceptable limitations on rights may shift, allowing extraordinary measures to become part of the ordinary legal landscape.
Moreover, the impact of these developments is rarely distributed equally across society. Rights restrictions often disproportionately affect groups that are politically or socially marginalized. Migrants, political dissidents, and minority communities frequently experience intensified surveillance, administrative control, or legal restrictions under security-oriented governance frameworks. This disproportionate impact often stems from their limited political representation, reduced access to legal remedies, and their frequent framing as security risks within public and governmental discourse. In such contexts, the universality of human rights may gradually erode as certain groups become systematically exposed to reduced protections.
Recognizing the phenomenon of silent erosion is therefore essential for understanding contemporary challenges to constitutional democracy. The protection of human rights cannot rely solely on the formal existence of legal norms within constitutional texts or international agreements. Instead, it requires sustained institutional vigilance and a continued commitment to the normative foundations of democratic governance.
Courts, legislatures, and civil society actors all play a crucial role in maintaining this vigilance. Judicial institutions must remain attentive to the long-term implications of emergency governance and resist excessive deference to executive authority. Legislative bodies must ensure that exceptional measures remain subject to meaningful oversight and clear temporal limits. Civil society and academic scholarship must continue to expose and analyze the subtle processes through which rights protections may gradually weaken.
Ultimately, the central challenge for contemporary constitutional democracies may not lie in the dramatic suspension of rights during moments of crisis, but rather in the gradual normalization of exceptional governance practices. The erosion of rights rarely occurs overnight. Instead, it unfolds through incremental legal transformations that slowly reshape the relationship between law, power, and individual freedom.
If human rights are to retain their protective force, democratic societies must remain attentive to these subtle dynamics. The defense of human dignity requires more than the preservation of legal texts; it demands continuous engagement with the evolving practices of governance that shape how rights function in everyday life. Only through such vigilance can constitutional democracies resist the silent erosion of human rights and preserve the normative foundations upon which their legitimacy ultimately depends.
Suggested citation: Tuğba Tosun Çobanoğlu, The Silent Erosion of Human Rights in Democratic Societies: Crisis Governance and the Normalization of Exceptional Powers, Int’l J. Const. L. Blog, Apr. 9, 2026, at: http://www.iconnectblog.com/the-silent-erosion-of-human-rights-in-democratic-societies-crisis-governance-and-the-normalization-of-exceptional-powers/
[1] Her work examines socio-legal issues at the intersection of law, human rights, and social dynamics through an interdisciplinary perspective, with particular focus on algorithmic governance, human dignity, and decision-making processes. She has previously contributed to platforms such as the Oxford Human Rights Hub and JURIST, where she has written on the implications of algorithmic systems for fundamental rights.