Judging necessity: Democracy and extra-legalism

Political Theory

Volumn 36, Issue 4, 2008, Pages 550-577

  Feldman, Leonard C ^a  

^a UNIVERSITY OF OREGON   (United States)

Author keywords

Emergency powers; Extra legalism; Judgment; Necessity; Prerogative

Indexed keywords

EID: 47249090010     PISSN: 00905917     EISSN: 15527476     Source Type: Journal    
DOI: 10.1177/0090591708317900     Document Type: Article

References (97)

1. Bruce Ackerman, " The Emergency Constitution, " Yale Law Journal 113 (2004). 1029-91. The emphasis is squarely on formal democratic processes. Thus William Scheuerman calls this approach "democratic formalism."
2. William Scheuerman, " Survey Article: Emergency Powers and the Rule of Law After 9/11, " Journal of Political Philosophy 14, no. 1 (2006). 61-84.
3. I take the term legal traditionalism from Andrew Arato. See his " Their Creative Thinking And Ours: Ackerman's Emergency Constitution after Hamdan, " Constellations 13, no. 4 (2006). 546-72.
4. This term come from Scheuerman, "Emergency Powers." Oren Gross calls this position "business as usual." Gross, " Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional? " Yale Law Journal 112 (2003). 1011-1134.
5. For a good example, see David Cole, " Judging the Next Emergency, " Michigan Law Review 101 (August 2003). 2565-95.
6. As Arato argues, the Bush administration theory of the unitary executive can be traced to a vision of constitutional prerogative. Arato, "Their Creative Thinking," 546.
7. For a comparison of legal dualism and extra-legal dualism, see Ian Zuckerman, " One Law for Peace and War? Judicial Review and Emergency Powers between the Norm and the Exception, " Constellations 13, no. 4 (2006). 522-45.
8. Scheuerman makes this point in "Emergency Powers."
9. This should not be surprising since, as Andrew Arato suggest, "classical liberalism has generally opposed establishing and codifying emergency powers in constitutions." Andrew Arato, " Bush Tribunals and the Spectre of Dictatorship, " Constellations 9 (2002). 469.
10. Oren Gross, " Prohibition on Torture, " in Torture: A Collection, ed. Sanford Levinson (Oxford, UK: Oxford University Press, 2004). 240.
11. See Gross, " Prohibition on Torture ";
12. and Jean Bethke Elshtain, "Reflection on the Problem of 'Dirty Hands, '" in Torture: A Collection, ed. Sanford Levinson (Oxford, UK: Oxford University Press, 2004). On the improbability of the ticking bomb hypothetical
13. see, for instance, David Luban, " Liberalism, Torture and the Ticking Bomb, " in The Torture Debate in America, ed. Karen J. Greenberg (New York: Cambridge University Press, 2006).
14. Kim Lane Scheppele, " Hypothetical Torture in the 'War on Terrorism', " Journal of National Security Law and Policy 1, no. 2 (2005). 285-340;
15. and Elaine Scarry, " Five Errors in the Reasoning of Alan Dershowitz, " in Torture: A Collection, ed. Sanford Levinson (Oxford, UK: Oxford University Press, 2004). 281-90.
16. Mark Tushnet, " Emergencies and the Idea of Constitutionalism, " in The Constitution in Wartime, ed. Mark Tushnet (Durham, NC: Duke University Press, 2005). 50.
17. Mark Tushnet, The Constitution in Wartime Ibid., 44.
18. Mark Tushnet, The Constitution in Wartime Ibid., 50.
19. Mark Tushnet, The Constitution in Wartime Ibid., 46, 50.
20. Mark Tushnet, The Constitution in Wartime Ibid., 50.
21. Mark Tushnet, The Constitution in Wartime Ibid., 51.
22. See Scheuerman, " Emergency Powers ";
23. and Cole, " Judging the Next Emergency."
24. Jef Huysmans, " Minding Exceptions: The Politics of Insecurity and Liberal Democracy, " Contemporary Political Theory 3 (2004). 321-41.
25. Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005). 25, 26.
26. Sheldon Wolin, " Democracy and the Welfare State: The Political and Theoretical Connections between Staatsrson and Wohlfahrtsstaatsrson " in The Presence of the Past (Baltimore: Johns Hopkins University Press, 1989). 171;
27. Kathleen Arnold, " Domestic War: Locke's Concept of Prerogative and Implications for U.S. Wars Today, " Polity 39, no. 1 (2007). 1-28.
28. For instance, Locke writes, "The legislative, or supreme authority,... is bound to dispense justice... by promulgated standing laws, and known authorized judges." John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge, UK: Cambridge University Press, 1988). § 136. All parenthetic citations are from this edition and refer to the section number of the Second Treatise.
29. As Deborah Baumgold argues, the idea of representative, electoral democracy as a mechanism of accountability "is only intimated in the Second Treatise." Deborah Baumgold, " Pacifying Politics: Resistance, Violence, and Accountability in Seventeenth-Century Contract Theory, " Political Theory 21, no. 1 (February 1993). 19.
30. John Dunn argues that the influence of Locke on the founders has been overstated. "Once the climactic point, the outbreak of revolution, was past," Dunn writes, the Two Treatises were "never again to be such an intellectual cynosure or to display such an apparent relevance." John Dunn, " The Politics of Locke in England and America in the Eighteenth Century, " in John Locke: Problems and Perspectives, ed. John Yolton (Cambridge, UK: Cambridge University Press, 1969). 78.
31. Alex Tuckness provides a good overview of the dispute and argues that current scholarship re-emphasizes the influence of Locke. Alex Tuckness, " Discourses of Resistance in the American Revolution, " Journal of the History of Ideas 64 (October 2003). 547-63.
32. See, for instance, Edward Corwin, The President: Offices and Powers (New York: New York University Press, 1984). especially 7-8.
33. See also David Weaver, " Leadership, Locke and the Federalist, " American Journal of Political Science 41, no. 2 (April 1997): 420-46
34. and Thomas E. Cronin and Michael A Genovese, The Paradoxes of the American Presidency ( New York: Oxford University Press, 1998).
35. See Clement Fatovic, " Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives, " American Journal of Political Science 48, no. 3 ( 2004 ).
36. Arnold writes, "It is Locke we must turn to in order to view the inherent contradictions with which we live right now: a government that is subjected to law and yet, at the most crucial political moments, it is not; the rule of law and checks and balances, but on the other hand arbitrary power has absolutely no rules or guidance with regard to means." Arnold, " Domestic War, " 20.
37. Lee Ward, " Locke on Executive Power and Liberal Constitutionalism, " Canadian Journal of Political Science 38, no. 3 (September 2005). 739.
38. See also Benjamin A. Kleinerman, " Can the Prince Really Be Tamed? Executive Prerogative, Popular Apathy, and the Constitutional Frame in Locke's Second Treatise, " American Political Science Review 101, no. 2 (May 2007). 209-22. Oren Gross also seems to adopt this interpretation in recent work, describing "one possible reading of Locke" situating prerogative as "an integral part of the broader constitutional scheme."
39. Gross, " Stability and Flexibility: A Dicey Business, " in Global Anti-Terrorism Law and Policy, ed. Victor Ramraj, Michael Hor, and Kent Roach (Cambridge, UK: Cambridge University Press, 2005). 97.
40. For a helpful discussion of the implications of this move see David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge, UK: Cambridge University Press, 2006). 52-53.
41. Ross J. Corbett, " The Extraconstitutionality of Lockean Prerogative, " Review of Politics 68 (2006). 447.
42. Echoing contemporary advocates of robust executive power.
43. Weaver, " Leadership, Locke, and the Federalist, " 435.
44. This linking of executive power and prerogative power resembles Locke's "casual" linking of executive and federative powers-two distinct powers that are usually held by the same agent. Wolin, " Democracy and the Welfare State, " 168.
45. I follow Corbett here when he suggests that the fire example appears in a new light after the discussion of the power of pardon. Corbett, " Extraconstitutionality, " 442.
46. Robert Faulkner, " The First Liberal Democrat: Locke's Popular Government, " Review of Politics 63 (2001). 33.
47. For an excellent discussion of how this involves a prerogative power to create new (constitutional) law see Corbett, " Extraconstitutionality, " 438-40.
48. For a discussion of the politics of "rotten boroughs," see Greg Forster and Glenn A. Moots, " 'Manifestly for the Good of the People': Elections and Democratic Legitimacy in Locke's Two Treatises, " available at http://www.artsci.lsu.edu/voegelin/EVS/2005%20Papers/ Greg%20Forster%20and%20Glenn%20Moots.htm.
49. Clement Fatovic notes how striking it is that Locke should begin discussing forms of prerogative which resemble the sorts of abuses of power which he denounced. Clement Fatovic, " Constitutionalism and Contingency: Locke's Theory of Prerogative, " History of Political Thought 25, no. 2 (Summer 2004). 281.
50. Richard Ashcraft situates Locke's arguments about prerogative and tyranny in the context of the Exclusion Crisis and describes the "foundations for a strategy of armed resistance" at the time of the dissolution of the Oxford Parliament as involving the charge of misuse of prerogative by the king, subverting the common good. This was, Ashcraft writes, "both an ancient constitution and a natural law argument." Richard Ashcraft, Revolutionary Politics and Locke's Two Treatises of Government (Princeton, NJ: Princeton University Press, 1986). 314.
51. Richard Ashcraft, Revolutionary Politics and Locke's Two Treatises of Government Ibid., 320. I explore the tension between constitutional and natural law foundations in the next section.
52. Fatovic suggests that Locke is unclear on this point: On the one hand, Locke seems to claim in places that prerogative power is constitutional-a part of executive power, in which case its use would hold "a presumption of innocence." On the other hand, to the extent that prerogative is extra-constitutional, according to Fatovic, it would appear to be met with a presumption of guilt, and the requirement of explicit, after the fact approval by the community. I am in basic agreement with Fatovic that Locke's text is ambiguous on the issue of a requirement of after-the-fact, explicit public review, though the evidence for the notion that "the executive is required to seek approval from the public" is quite limited. Fatovic, " Constitutionalism and Presidential Prerogative, " 433.
53. See also Gross, "Chaos and Rules,"
54. for whom this is the key deficiency in Locke. Kleinerman, " Can the Prince Really Be Tamed? " views Locke as critical of the people's propensity to accept prerogative so long as it is aimed toward the public good, whether or not it is absolutely necessary for the preservation of the political order. Kleinerman, in other words, sees in Locke's statements neither primarily the goal of assuaging his audience that his theory is not overly radical nor evidence of Locke's own dispositional conservatism but rather Locke's worry that the English people are too passive to effectively resist misuse of prerogative. This account of Lockean prerogative stresses Locke's descriptive claims over his normative claims-his "political anthropology" and his "political analysis" over his assertion of political right. While Kleinerman makes a good case for how Locke's concerns about how the people actually behave when faced with executive overreaching might lead him to emphasize the role of legislative elites, it is important to note that in contrast to monarchomach theories of resistance, Locke does not make the legitimacy of resistance depend on such elite involvement as legislative representatives of the people.
55. See Julian Franklin, John Locke and the Theory of Sovereignty (Cambridge, UK: Cambridge University Press, 1978). 2-3.
56. Giorgio Agamben, State of Exception, 23.
57. Corbett, " Extraconstitutionality, " 447.
58. Sean Mattie makes a similar argument. Sean Mattie, " Prerogative and the Rule of Law in John Locke and the Lincoln Presidency, " Review of Politics 67 (2005). 88.
59. See D. A. Lloyd Thomas, Locke on Government (New York: Routledge, 1995). 26-27.
60. Ian Ward describes Locke's constitution as entailing "the formal structures and rules establishing a system of laws connecting enactments, institutions, and authorized persons in a matrix of legitimate authority that is distinct from both pre-political society and the species of positive law generated by ordinary legislatures." Ward, "Locke on Executive Power," 728.
61. The notion that we judge as individuals in a state of nature, prior to the "original compact" and the formation of community or society does not seem to be a possibility, since Locke makes clear that the dissolution of government is to be held distinct from the dissolution of society. The dissolution of government means that power reverts back to society. Misuse of sovereign prerogative would constitute an example of either tyranny or the dissolution of government since practically speaking only foreign conquest can produce the dissolution of society. And only the dissolution of society returns us to a state of nature. See Kirstie McClure, Judging Rights: Lockean Politics and the Limits of Consent (Ithaca, NY: Cornell University Press, 1996). 233-35.
62. Andreas Kalyvas, " Popular Sovereignty, Democracy and the Constituent Power, " Constellations 12 (June 2005). 228.
63. Ross Harrison describes the "appeal to heaven" in the following way: "It is in trial by battle by which the judgement of God is sought." Harrison, Hobbes, Locke and Confusion's Masterpiece (Cambridge, UK: Cambridge University Press, 2002). 217.
64. Franklin, John Locke and the Theory of Sovereignty, 93.
65. Kalyvas writes, "Locke understood this sovereign constituent power as external and prior to any established system of positive laws, located in the gray zone between the natural and political state." Kalyvas, " Popular Sovereignty, " 227.
66. Ward, " Locke on Executive Power, " 738.
67. Stanford, CA: Stanford University Press, Jacques Derrida exposes a similar paradox in " Agamben, State of Exception, 23.
68. Jacques Derrida exposes a similar paradox in " Declarations of Independence " In his brilliant deconstruction, the constituent power of the people is always legitimated after the fact by the declaration itself, in a "fabulous retroactivity." My analysis, on the other hand, explores the complex relationship between such a constituent power and the prior constitutional order. 2002). 46-54.
69. (Jacques Derrida, " Declarations of Independence, " in Negotiations (Stanford, CA: Stanford University Press,
70. See also Bonnie Honig, " Declarations of Independence: Arendt and Derrida on the Problem of Founding a Republic, " American Political Science Review 85, no. 1 (March 1991). 97-113.
71. I am indebted to Lida Maxwell for this point. On the complexity of such a threshold (between legality and sovereign clemency), see Austin Sarat, " At the Boundaries of Law: Executive Clemency, Sovereign Prerogative, and the Dilemma of American Legality, " American Quarterly 57 (2005). 611-31.
72. Bonnie Honig, " Between Decision and Deliberation: Political Paradox in Democratic Theory, " American Political Science Review 101, no. 1 (February 2007). 15.
73. As Corbett notes, extra-legal action no longer legitimately triggers automatic resistance, but rather "vigilance." The people in their extra-constitutional capacity must exercise political judgment in these circumstances without any simple formula or decision rule. See Corbett, " Extraconstitutionality, " 447.
74. Here I am not so much describing the threshold as describing the phenomenal experience of judging at that threshold.
75. Deborah Baumgold, " Hobbes's and Locke's Contract Theories: Political Not Metaphysical, " Critical Review of International Social and Political Philosophy 8, no. 3 (September 2005). 299.
76. This interpretation holds even while acknowledging that Locke sought to banish or marginalize common-law-based arguments, "ignoring the prescriptive force of the ancient English constitution." David Resnick, " Locke and the Rejection of the Ancient Constitution, " Political Theory 12, no. 1 (1984). 98. Locke was making a philosophical argument, not tied to tradition. But the practice of particularizing that philosophy, of making judgments, required a particular constitutional or legal context. A philosophical theory, in other words, may still build in the requirement of a particular context.
77. McClure, Judging Rights, 238, 239-40.
78. Baumgold, " Contract Theories, " 299.
79. As Fatovic writes, "The target of (Locke's) attack in The Two Treatises of Government is arbitrary rule, not discretionary action per se." Fatovic, "Constitutionalism and Contingency," 296.
80. These questions bear some affinity to traditional common law tests for evaluating the necessity defense: Did the defendant choose the lesser evil? Did the defendant see a cause-and-effect relationship between the act and the avoidance of harm? Did the defendant act to avoid an imminent danger? Were there no legal alternatives for avoiding the peril? For a helpful articulation of the democratic principles implied by these questions, including the "justification of necessity" principle, see Nomi Lazar, " Must Exceptionalism Prove the Rule? An Angle on Emergency Government in the History of Political Thought, " Politics and Society 34, no. 2 (2006). 245-75.
81. See Fatovic, " Constitutionalism and Presidential Prerogative, " 445.
82. Agamben is thus right to emphasize the parallel undecidability of the state of exception and the right of resistance. Agamben, State of Exception, 10-11.
83. See Pierre Bourdieu, Outline of a Theory of Practice, trans. Richard Nice (Cambridge, UK: Cambridge University Press, 1977). 167-68.
84. Oren Gross, " Chaos and Rules, " 1103.
85. Probing this tension, Scheuerman writes of Gross's argument: "Gross insists on the extra-legality of emergency action while simultaneously suggesting how various legal mechanisms... might work to restrain the executive." Scheuerman, " Emergency Powers, " 73.
86. Gross, " Chaos and Rules, " 1099
87. Gross, " Chaos and Rules, " Ibid., 1111.
88. See David Cole, " Judging the Next Emergency, " 2589.
89. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: Norton, 2007). 81.
90. See Scheuerman, " Emergency Powers, " 71.
91. While it is important, as I have said, not to overdraw the distinction between the public and courts in terms of their areas of purview, it is also a mistake to hypostatize the public into an imagined court of judgment in a model that ignores the asymmetries of power between official institutions and "weak" publics. Locke's account of the emergence of constitutional contestation cautions us against modeling public judgment in this way. Recall for a moment the way in which Locke's two kinds of extra-legal judgment, the executive pardon and popular judgment of the executive, are asymmetrical-the differences in institutionalized power are reflected in the presumption of innocence the executive receives. This is, indeed, where Gross's model is weakest-because while Gross seeks to improve on Locke by building in explicit procedures for public review, absent reforms that institutionalize such review, Gross ends up accepting the asymmetry by accepting public acquiescence to such official measures as legislative or governmental indemnification. See Oren Gross, " Torture and an Ethics of Responsibility, " Law, Culture and the Humanities 3 (2007). 35-54.
92. Tushnet, " Emergencies, " 50.
93. On the law-public relation in the extra-legal measures model, see also David Dyzenhaus, The Constitution of Law, 52.
94. See Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review ( Oxford, UK: Oxford University Press, 2004 ).
95. Kleinerman, " Can the Prince Really Be Tamed? " 220, 218.
96. Something which Gross comes close to recognizing when he acknowledges that his model relies (perhaps even more heavily) on the "assumption of separation" between norm and exception, an assumption which he so persuasively critiques in relation to other approaches to emergency powers. Gross, " Chaos and Rules, " 1133.
97. See also David Dyzenhaus, " The State of Emergency in Legal Theory, " in Global Anti-Terrorism Law and Policy, ed. Victor Ramraj, Michael Hor, and Kent Roach (Cambridge, UK: Cambridge University Press, 2005). 69.