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Article Excerpt
This article challenges the increasingly prevalent idea that since September 11, 2001, we have moved into a state of permanent emergency and an abandonment of the rule of law. The article questions this idea, showing that historical developments in the twentieth century have actually placed emergency powers at the heart of the rule of law as a means of administering capitalist modernity. This suggests we need to rethink our understanding of the role of emergency measures in the "war on terror" and, more generally, to reconsider the relationship between the rule of law and violence. KEYWORDS: emergency powers, state of exception, Benjamin, Schmitt, rule of law.
September 14
Since the event that has quickly passed into the English language as "9/11," countless individuals have been imprisoned without charge or trial at Guantanamo Bay, the detention center at Bagram in Afghanistan, and Abu Ghraib prison in Iraq. It is clear that while in detainment some have been tortured and most have been subject to inhumane treatment. Others have been shipped to prisons, penitentiaries and police stations in countries known to allow human rights abuses. At the same time, liberal democracies have devised new and unusual methods to discipline and punish, such as the "control orders" recently introduced in Britain. Less startling but equally significant are the systematic ways in which international laws seem to have been overridden by a new imperial power and the way most Western liberal democracies have generated new policies that appear to undermine the basic tenets of liberal jurisprudence and constitutional democracy. In response to the shock and outrage expressed by many against these developments, we have been told that we are living in exceptional times, and that such times require exceptional powers: "It is a state of emergency." Perhaps, then, the key date for our times is "9/14" rather than the actual attack three days earlier, for this was the day the US president George W. Bush declared a state of emergency.
For those working in the minor cottage industry based on the work of Carl Schmitt, such a declaration proved to be more than a little fortuitous. Most of the workers in this industry consider themselves as radical or critical theorists on the political left, and much of their interest centers on Schmitt's concept of sovereignty: Sovereign is he who decides on the exception. So what could offer better proof of the cogency of Schmitt's central problematic than the world's most powerful state asserting its sovereignty by declaring a state of emergency? The period since September 2001, has therefore been a field day for those interested in the idea of the state of emergency. (1)
But this story has a little twist. For many have suggested that because the war on terror will probably never end, at least "not in our lifetimes," as Vice President Dick Cheney was saying just weeks after 9/11, the emergency in question appears to have quickly become a permanent feature of the political landscape: The exception has in fact become the rule. With this state of emergency, it is said, normal times are gone. Central to the left's response to this war, then, has been the claim that the emergency itself appears to be becoming permanent. The standard device for many is to then cite Walter Benjamin among the otherwise Schmittian thematic, to the effect that "the 'state of emergency' in which we live is not the exception but the rule."
The influential figure here has been Giorgio Agamben's use of Schmitt in developing his arguments concerning the camp as the nomos of the modern and related themes such as the refugee and "bare life." For Agamben, the camp is the space that opens up when the state of exception starts to become the rule. The camp is thus a space of exception, a piece of territory placed outside the normal juridical order, and at the same time the ultimate expression of the logic of the exception. As such, the state of exception has now become the norm. Agamben was pushing this argument prior to the attack on the "war on terror," but he has pursued the argument even more thoroughly since. (2)
The same observation might be made about Michael Hardt and Anonio Negri. In Empire, Hardt and Negri had already suggested that both domestic and international law can now be defined by their exceptionality, an exceptionality founded on intervention. Intervention is now the game in international politics, a game played on the basis of "a permanent state of emergency and exception justified by the appeal to essential values of justice." The justification for the deployment of military forces in this new "Empire" rests on a state of permanent exception. (3) Pushing this further in their work since 9/11, they insist that "the state of exception has become permanent and general; the exception has become the rule, pervading both foreign relations and the homeland." (4)
Many similar claims can be found elsewhere, but a few examples will suffice. For Leo Panitch, the new antiterrorism laws in Canada mean that what we have "is not emergency legislation but ... an emergency law masquerading as an ordinary statute." This means "that we have stepped outside the rule of law" and "we have the permanence of the temporary, an attempt to normalize the exception." (5) Tony Bunyan of Statewatch suggests that the exceptional has, along with the draconian, become the norm, (6) while for Jean-Claude Paye the new antiterror measures are so significant a shift that they "overturn the norm, and deviations become the rule": "Emergency procedures replace the Constitution and the law as forms of political organization." (7) Similar points are made by Savas Michael-Matsas (8) and Vivienne Jabri, (9) while Alex Callinicos cites Agamben in his argument that "the terrifying military apparatus deployed on the banks of the Tigris commands the world to accept a permanent state of emergency." (10) The same idea or theme has been important to black groups in the United States, (11) to various civil liberties pressure groups identifying emergency powers as the "new paradigm" and the "new normal" in politics, (12) to the first book-length sociology of the camp, (13) and in a variety of other work, from writings on postcolonial melancholia (14) to debates on the Schengen Agreement. (15)
The idea that emergency is now permanent or that the exception is now the rule is, it seems, now the standard position on the left. (16) And this position has at its heart one basic proposition: that the emergency involves a suspension of the law. International law appears to have been abandoned in the name of reason of state and national security, while key states which once carried the flag for liberal democracy appear to have abandoned a commitment to the rule of law and basic rights. The state of necessity is not a "state of law," but a space without law, suggests Agamben. (17) The general feeling is that the declared state of emergency has so transformed the legal landscape that we are in a "lawless world"; detainees are living in a legal "black hole" or the "legal equivalent of outer space." The emergence of categories such as "enemy combatants," "battlefield' detainees," or "extraordinary rendition," all of which are said to have a legal status that is less than clear, only serves to reinforce the notion that "ordinary" or "normal" law has been abandoned.
In this article I challenge this notion of the permanent emergency. I want to suggest that historically speaking the argument that we have recently moved into a state of emergency is a poor one. Read historically through the lens of emergency powers, the current conjuncture is not categorically different to much that has gone on before. As such, the idea that we have recently moved into a permanent state of emergency is historically naive. But I also suggest that this historical naivete has its roots in a more political misconception about the nature of law in liberal democracy, a misconception founded on another and far more problematic naivete concerning law and violence. The implication is that if we are genuinely looking for alternatives--global, local, and especially political--then we will have to look beyond the normal/emergency paradigm.
Aden to Zanzibar
"Emergency" is an elastic and ambiguous concept. It does not permit of any exact definition, but merely points to a state of affairs calling for drastic action. This elasticity is encouraged by the fact that it also includes a range of related notions, encompassing a range of situations described by the terms "state of siege," "state of alert," "state of readiness," "state of internal war," "suspension of guarantees," "martial law," "crisis powers," "special powers," "curfew," and so on. Despite this elasticity and ambiguity, no constitution exists that does not contain provisions for emergency powers. This observation, to which we shall return, is politically telling.
Unsurprisingly, one finds that military encounters or threatened military encounters are a common reason given for the introduction or use of emergency powers. In the United Kingdom, the Defence...
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