Must exceptionalism prove the rule? an angle on emergency government in the history of political thought

Politics and Society

Volumn 34, Issue 2, 2006, Pages 245-275

  Lazar, Nomi Claire ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

Emergency; Machiavelli; Rights; Schmitt; State of exception

Indexed keywords

EID: 33646672434     PISSN: 00323292     EISSN: 15527514     Source Type: Journal    
DOI: 10.1177/0032329205285406     Document Type: Review

References (131)

1. John Ferejohn and Pasquale Pasquino, "The Law of Exception: A Typology of Emergency Powers," International Journal of Constitutional Law 2 (2004): 210-239, 221.
2. See also Philip B. Heymann, Terrorism, Freedom, and Security: Winning without War (Cambridge: The MIT Press, 2003), xii;
3. William H. Rehnquist, All the Laws but One (New York: Random House, 1998);
4. William Scheuerman, "Rethinking Crisis Government," Constellations 9, no. 4 (2002): 492-505, 492.
5. Michael Ignatieff, The Lesser Evil (Princeton: Princeton University Press, 2004), 25.
6. Giorgio Agamben, State of Exception. Translated by Kevin Attell (Chicago: University of Chicago Press, 2005).
7. This article forms part of a larger study of emergency powers, which develops a moral framework for confronting emergencies that eschews the norm/exception dichotomy in favor of an understanding of emergency powers as extensions of everyday value pluralism. See Nomi Claire Lazar, The Ethics of Emergency Powers in Liberal Democracies (PhD dissertation, Yale University, 2005, on file with the author).
8. Reichstag Speech of Chancellor von Bethmann Hollweg, Aug. 4, 1914, on the occasion of the invasion of Belgium. Quoted in Michael Walzer, Just and Unjust War (London: Penguin Books, 1977), 240. The expression "necessitas non habet legem" is said to have originated with St. Augustine.
9. Select Committee on Ceylon, Second Report, 12 Parl. Papers 1850, Question 5477. Quoted in Charles Fairman, The Law of Martial Rule. Second Edition (Chicago: Callaghan and Company, 1943), 48.
10. Authorization for Use of Military Force, Senate Joint Resolution 23, 107th Congress, 1st sess., (September 14, 2001): S9443.
11. Jane Mayer, "Outsourcing Torture," New Yorker (February 14, 2005).
12. A good discussion is found in Kim Lane Scheppele, "Law in a Time of Emergency," Journal of Constitutional Law 6, (2004): 1001-83, 1026ff.
13. U.S. Department of State, "Appeals Court Upholds Detention of 'Enemy Combatant'" http://usinfo.state.gov/dhr/Archive/2003/Oct/09-771737.html. (Accessed July 22, 2005).
14. Scheuerman, "Rethinking Crisis Government," Constellations 9 (2002): 492-505, 492.
15. Ignatieff, The Lesser Evil, 25.
16. See also Agamben, State of Exception;
17. Scheppele, "Law in a Time of Emergency."
18. Stuart Hampshire, Innocence and Experience (Cambridge, MA: Harvard University Press, 1989), 12.
19. For this same reason, the article is organized thematically rather than chronologically. This is not an inquiry in the history of political thought in the strict sense of tracing the development of political ideas over time. Rather, it aims to explore a persistent cluster of ideas.
20. Some scholars have suggested in recent years, without drawing the connection to Machiavelli's and Rousseau's republican exceptionalism, that this is exactly the case with regard to the President's national security powers. See Jules Lobel, "Emergency Power and the Decline of Liberalism," The Yale Law Journal 98 (1989): 1385-1433;
21. Scheppele, "Law in a Time of Emergency," 1015.
22. The question of whether Machiavelli is a republican in the first place, and what kind of republican he might be, is not a settled one. The copious literature on Machiavelli's republicanism includes: Mary Dietz, "Trapping the Prince: Machiavelli and the Politics of Deception," American Political Science Review 80 (1986): 777-99;
23. Mark Hulliung, Citizen Machiavelli (Princeton, Princeton University Press, 1983);
24. J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975);
25. Sheldon Wolin, Politics and Vision (Boston: Little, Brown and Co, 1960).
26. Alternatively, see the reading of Leo Strauss in his Thoughts on Machiavelli (Chicago: University of Chicago Press, 1958).
27. Most major interpreters of Machiavelli give some consideration to the figure of the Founder in his work. Hannah Pitkin, for instance, devotes a chapter to the subject in Fortune is a Woman (Berkeley: University of California Press, 1984)
28. and Sheldon Wolin discusses this aspect of Machiavelli in Politics and Vision, 231.
29. Pocock deals briefly with the "ideal type of the legislator" in The Machiavellian Moment, 171-2.
30. Isaiah Berlin comes closest to addressing the special moral status of this figure in his "The Originality of Machiavelli," where he refers to two implicit, complete, separate systems of ethics, "not two autonomous regions, one of ethics, another of politics," in Henry Hardy ed., Against the Current: Essays in the History of Idea (Oxford: Clarendon Press, 1980), 58.
31. Judith Shklar's Men and Citizens (Cambridge, MA: Harvard University Press, 1969)
32. also hints this line of interpretation of Rousseau. For an account of the relationship of Machiavelli to contemporary executive prerogative see Harvey Mansfield, Taming the Prince (New York: Free Press, 1989).
33. It would be interesting to catalog and contrast the metaphors of political theorists and explore their preconditions and ramifications. The ship of state with its helmsman and captain is familiar from Plato up to the present day. We are also, of course, very familiar with the metaphor of the body politic from Aristotle to Hobbes and onward. But, for Rousseau and Machiavelli, the state might best be described as a theater populated by characters and brought alive through performance. We are perhaps more used to the theater metaphor with reference to battle, a matter worth pondering.
34. Niccoló Machiavelli, "Discourses," in The Prince and Discourses. Translated by Luigi Ricci and E. R. P. Vincent (New York: Random House, 1950). I.18. Rousseau and Machiavelli citations refer to book and chapter number.
35. Ibid., Niccoló Machiavelli, "Discourses," in The Prince and Discourses. I.49, I.59, III.8.
36. Ibid., Niccoló Machiavelli, "Discourses," in The Prince and Discourses. I.2.
37. Ibid., Niccoló Machiavelli, "Discourses," in The Prince and Discourses. III.1
38. Ibid., Niccoló Machiavelli, "Discourses," in The Prince and Discourses. 1.17, 1.18.
39. Ibid., Niccoló Machiavelli, "Discourses," in The Prince and Discourses. III. 1.
40. Ibid., Niccoló Machiavelli, "Discourses," in The Prince and Discourses. III. 1.
41. Ibid., Niccoló Machiavelli, "Discourses," in The Prince and Discourses. III.3.
42. Machiavelli. Prince, vii.
43. Machiavelli. Discourses. I.9.
44. Machiavelli. Prince, viii.
45. Machiavelli. Discourses. I.12.
46. Ibid., Machiavelli. Discourses. I.12.
47. Ibid., Machiavelli. Discourses. I.9.
48. Ibid., Machiavelli. Discourses. I.33.
49. Ibid., Machiavelli. Discourses. III.7.
50. Jean-Jacques Rousseau, Du contrat social (Paris: Flammarion, 1992). I.9. Unless otherwise noted, Rousseau translations are my own.
51. Ibid., Jean-Jacques Rousseau, Du contrat social II.7.
52. Ibid., Jean-Jacques Rousseau, Du contrat social II.7.
53. Ibid., Jean-Jacques Rousseau, Du contrat social II.7.
54. Either Rousseau is speaking rhetorically, or else he means to suggest that people can never have good laws. He refers to many human legislators and to restraints placed upon them. Moreover, Rousseau himself acts the part of the Legislator when he writes a constitution for Poland, and indeed in writing Du contrat social itself. His description of the Legislator as godlike perhaps serves the rhetorical function of underlining his extraordinary moral status. See Jean-Jacques Rousseau, The Government of Poland, translated by Willmoore Kendall (Indianapolis: Hackett Publishing, 1985).
55. Rousseau, Du contrat social, I.7.
56. Such a claim has a very illustrious history, of course.
57. "How sweet it would be to live among us, if our faces showed our heart's true disposition!" Rousseau's Discours sur les sciences et les arts gives his clearest statement of this love of authenticity, but it is equally apparent in his multiple autobiographies (Paris: Garnier-Flammarion, 1971), 32.
58. Shklar, Men and Citizens, 136.
59. Jean-Jacques Rousseau, Émile, translated by Alan Bloom (New York: Basic Books, 1979), 120.
60. Arguably, all liberal-democratic governments see their interest in restricting and promoting certain sorts of behavior without commanding. Attempts to provide incentives and disincentives take the form of, for instance, tax benefits or penalties, but they also make their way into public education, public health services, and so on. Since Foucault we have come to recognize that yet more sinister forces are work. See for instance Discipline and Punish, second edition, translated by Alan Sheridan (New York: Random House, 1995).
61. Rousseau, Du contrat social, IV.6
62. Ibid., IV.6.
63. Rousseau, Émile, 480.
64. Machiavelli, Discourses, I.34.
65. Rousseau, Du contrat social, IV.6.
66. But in fact this is a serious misrepresentation. The dictator's duties were not bound in these ways all. See chapter 5 of my Ethics of Emergency Powers in Liberal Democracies.
67. Rousseau, Du contrat social, 1.8 and I.9;
68. Machiavelli, Discourses, III.29,
69. Machiavelli, Discourses, I.1.
70. The effect of institutions on human character in Machiavelli would be worthy of careful study. Given that Machiavelli holds that a people can become corrupted, it cannot be the case that he thinks republican government changes human nature. On this point, the dispute between Pocock and Vicki Sullivan is interesting. Pocock suggests in The Machiavellian Moment that a core aspect of the republicanism of Machiavelli's day is that the "experience of citizenship . .. had changed their natures in a way that mere custom had not... [I]t was the end of man to be acitizen or political animal, it was his original nature or prima forma that was developed, and developed irreversibly, by the experience of the vivere civile"
71. Pocock, The Machiavellian Moment, 184. Sullivan is convincing to the extent that it is a stretch to suggest Machiavelli's republicanism is grounded in the benefits for self-actualization that political participation provides.
72. Vicki Sullivan, "Machiavelli's Momentary 'Machiavellian Moment': a Reconsideration of Pocock's Treatment of the Discourses," Political Theory 20 (1992): 309-318. Nonetheless, Machiavelli clearly and explicitly favors the vivere libero over tirranica, and he clearly associates the former with a republican form of government.
73. Immanuel Kant, The Metaphysics of Morals, translated by Mary Gregor (Cambridge: Cambridge University Press, 1991), §44, 123.
74. Machiavelli, Discourses, I.1.
75. Isaiah Berlin, "On the Originality of Machiavelli," 66.
76. Rousseau, Émile, 480.
77. It is interesting to note that there are a number of apolitical or only marginally political decisionists. In addition to some of those mentioned above, we might add Paul Tillich, Pascal, and Kierkegaard. Their decisionism is still theological.
78. Schmitt, Political Theology, 19.
79. Schmitt, Political Theology, Ibid., 13;
80. A startlingly similar sentiment was expressed in the British parliament, with respect to Charles I's Ship Money scandal in the 1640s: "If the Kinge be the judge of the necessitye, we have nothing and are but Tennants..." Quoted in Tom Sorrel, ed., The Cambridge Companion to Hobbes (Cambridge: Cambridge University Press, 1996), 27.
81. A useful overview of the culture and politics of Germany at this time is provided in Anton Kaes, Martin Jay, and Edward Dimendberg, eds., The Weimar Republic Sourcebook (Berkeley: University of California Press, 1994).
82. An excellent account and critique of the struggles among Weimar legal theorists and the political ramifications of these struggles is David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford: Clarendon Press, 1997).
83. See also Peter Caldwell, The Theory and Practice of Weimar Constitutionalism (Durham, NC: Duke University Press, 1997).
84. Carl Schmitt, The Crisis of Parliamentary Democracy, translated by Ellen Kennedy (Cambridge, MA: MIT Press, 1985), 36.
85. Schmitt, Political Theology, 13.
86. Ibid., Schmitt, Political Theology, 6, 12.
87. Ferejohn and Pasquino, "The Law of Exception," 226.
88. Schmitt, Political Theology, 32.
89. Ibid., Schmitt, Political Theology, 13.
90. Ibid., Schmitt, Political Theology, 7.
91. Ibid., Schmitt, Political Theology, 62.
92. Ibid., Schmitt, Political Theology, 6, 12.
93. Carl Schmitt, The Concept of the Political, translated by George Schwab (New Brunswick, N.J.: Rutgers University Press, 1976), 46.
94. In Die Diktatur (Berlin: Duncker & Humblot, 1994),
95. Schmitt draws a distinction between a commissarial dictatorship and a sovereign dictatorship. The former has as its ruling force the restoration of the constitution through the resolution of a specific crisis. The latter stands in place of a constitution as constant sovereign. This is the sovereign subtly advocated in the Political Theology a year later. For an interesting discussion of this shift, see chapter 3 in John McCormick, Carl Schmitt's Critique of Liberalism (Cambridge: Cambridge University Press, 1997).
96. Schmitt, Die Diktatur, xvii ff.
97. Thomas Hobbes, Leviathan (Oxford: Clarendon Press, 1909), chapter 13, 97. For the ease of those using a different edition Hobbes citations will refer to chapter as well as page numbers.
98. Ibid., Thomas Hobbes, Leviathan, Chapter 13, 95.
99. Ibid., Thomas Hobbes, Leviathan, Chapter 13, 96.
100. Ibid., Thomas Hobbes, Leviathan, Chapter 17, 131.
101. Ibid., Thomas Hobbes, Leviathan, Chapter 18, 136.
102. For an account that emphasizes the normless character of Hobbes's sovereigns' decisions, which, nonetheless, does not employ the term "decisionism," see Robert Kraynack, "Hobbes' Behemoth and the Argument for Absolutism," American Political Science Review 76 (December 1982): 837-47. Kraynack argues that it is this very normlessness of the sovereign's decisions that separates Hobbes's doctrine from totalitarianism. Regimes of the latter kind claim "truth" for their corrupt normativism.
103. Carl Schmitt. Der Leviathan in der Staatslehre des Thomas Hobbes. Third edition (Stuttgart: Klett-Cotta, 2003).
104. Translated by George Schwab and Erna Hilfstein as The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol (Westport: Greenwood Press, 1996).
105. For good discussions of Hobbes's ideas about science and mathematics and their relationship to his thought more generally, see Sorrel, ed., The Cambridge Companion to Hobbes.
106. "[It] is another Errour of Aristotle's Politiques, that in a well ordered Common-wealth, not Men should govern, but the Laws. What man that has his naturall Senses, though he can neither write nor read, does not find himself governed by them he fears, and believes can kill or hurt him when he obeyeth not?" Hobbes, Leviathan, chapter 46, 699.
107. Sorrel, "A Summary Biography of Hobbes," The Cambridge Companion to Hobbes, 17.
108. Ibid., Sorrel, "A Summary Biography of Hobbes," The Cambridge Companion to Hobbes, 16.
109. Hobbes, Leviathan, chapter 38, 478.
110. Ibid., Hobbes, Leviathan, chapter 40, 501.
111. Schmitt, Leviathan in the State Theory of Thomas Hobbes, 6.
112. Ibid., Schmitt, Leviathan in the State Theory of Thomas Hobbes, 31, 35.
113. Ibid., Schmitt, Leviathan in the State Theory of Thomas Hobbes, 10.
114. Yet, "it is possible that behind the image of the Leviathan is hidden a deeper, symbolic meaning. Like all the great thinkers of his times, Hobbes had a taste for esoteric cover-ups," Ibid., 26.
115. In the political theology of another decisionist, Joseph de Maistre, this connection goes so far as to fuse obedience and protection in the guise of providence. We are obedient to providence, and it brings to us what ought to be brought, whether or not this manifests as physical protection. See, for instance, Joseph de Maistre, Considerations on France, translated by Richard Lebrun (Cambridge: Cambridge University Press, 1994), 28.
116. John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1971), 245.
117. Sophie is, in Rousseau's scheme, to be Émile's ideal companion.
118. One of the more interesting paragraphs in Schmitt's oeuvre touches on this question: "There exists no rational purpose, no norm no matter how true, no program no matter how exemplary, no social ideal no matter how beautiful, no legitimacy nor legality which could justify men in killing each other... If such physical destruction of human life is not motivated by an existential threat to one's own way of life, then it cannot be justified," The Concept of the Political, 49.
119. I say rarely because there are states, such as Northern Ireland, Israel, and Egypt that have been under indefinite and lengthy states of emergency.
120. Ferejohn and Pasquino, "The Law of Exception," 221.
121. Oren Gross, "Providing for the Unexpected: Constitutional Emergency Provisions," Israel Yearbook on Human Rights 33 (2003): 13ff, 27.
122. For good typologies of constitutional emergency powers, see Gross, "Providing for the Unexpected";
123. Ergun Özbudun and Mehmet Turhan, Emergency Powers (Strasbourg: Council of Europe Publishing, 1995).
124. See also James Hart, "The Emergency Ordinance: A Note on Executive Power," Columbia Law Review 23 (1923): 528-35, 530ff;
125. Clinton Rossiter, Constitutional Dictatorship, Second Edition (New Brunswick: Transaction Press, 2002);
126. Daniel Franklin, Extraordinary Measures: the Exercise of Prerogative Powers in the United States (Pittsburgh: University of Pittsburgh Press, 1991).
127. See chapter 4 of my The Ethics of Emergency Powers in Liberal Democracies. (On file with the author)
128. Stuart Hampshire suggests that, while it is almost as difficult to reconstruct moral reasoning as it is to reconstruct our choice of diction, reconstruction is important to judging after the fact, because of the likelihood, in moral cases, of emotions getting in the way. Public and Private Morality (Cambridge University Press, 1978), 29.
129. Unfortunately, the relative rarity of serious emergencies and the recent vintage of most sets of emergency powers might mean that data would be too scarce to conduct rigorous empirical testing.
130. Chapter III of the Constitution of the Bahamas (1973), for example, provides a catalog of rights. But Article 29 of this very chapter provides that only a handful of rights (drawn from the ICCPR) are nonderogable. Only these few might be allowed to interfere with effective emergency government. Similarly, the Canadian Charter of Rights and Freedoms (1982) begins with a statement about the potential for derogation, not just in emergency circumstances but always. And Section 91 of the Constitution of Canada (1867) states that, "It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada." This is explicitly set out as the primary and most significant purpose of government. In these states, the constitutions themselves emphasize a certain relationship between order and the prerogatives of the state itself, between rights and the limitations imposed by duties. Emergency circumstances constitute just one more rights limitation. For interesting discussions of the concept of rights limitations in the Canadian context, see Janet L. Hiebert, Limiting Rights (Montreal and Kingston: McGill-Queens University Press, 1996);
131. Kenneth Fogarty, Equality Rights and their Limitation in the Charter (Toronto: Carswell. 1987).