Paper delivered to the ‘Studies of Modern Capitalism’ Conference
Center for Marxist Social Theory
Nanjing University
9-10 November, 2006.
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 centre at Bagram in Afghanistan and Abu Ghraib 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 for their human rights abuses. At the same time, liberal democracies have also devised new and unusual methods to discipline and punish, such as the ‘control orders’ recently introduced in Britain. Less startling but equally significant have been 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 such times require exceptional powers: it’s 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 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 centres 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.
But this story has a little twist. For many have suggested that since the war on terror will probably never end - at least not until ‘every terrorist group of global reach has been found, stopped, and defeated’, as Bush put it just nine days after attacks, and thus at least ‘not in our lifetimes’, Dick Cheney was saying just a few weeks later - the emergency in question appears to have quickly become a permanent feature of the political landscape. What was initially intended as a ‘lengthy campaign’ of ‘unknown duration’ has more recently morphed into ‘the long war’; 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.
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 both be defined by their exceptionality – an exceptionality founded on intervention. Intervention is now the game in international politics, but ‘What stands behind this intervention is…a permanent state of emergency and exception justified by the appeal to essential values of justice’. The justification for deployment of military forces in this new ‘Empire’ rests on a state of permanent exception. Pushing this further in their follow-up 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’.
Similar claims can be found elsewhere, but a few examples will suffice.
For Leo Panitch the new anti-terrorism 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’. Tony Bunyan of Statewatch suggests that the exceptional has along with the draconian become the norm, while for Jean-Claude Paye the new anti-terrorist 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’, points repeated by Savas Michael-Matsas and Vivienne Jabri. Alex Callinicos cites Agamben’s work approvingly, using it to explore that way ‘the terrifying military apparatus deployed on the banks of the Tigris commands the world to accept a permanent state of emergency’. The same idea or theme has been important to black groups, especially in the US, to various civil liberties pressure groups identifying emergency powers as the ‘new paradigm’ and the ‘new normal’ in politics, to the first book-length sociology of the camp, an analysis of urban panic, and in a variety of other work, from writings on postcolonial melancholia, to collections of essays by leading US critical theorists, to debates on the Schengen agreement.
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. 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. 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 which is less than clear, only serves to reinforce the notion that ‘ordinary’ or ‘normal’ law has been abandoned.
In this paper I want to challenge this notion of the permanent emergency, and I want to do so in order to raise some issues concerning capital and the state. 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 naïve. But I also want to suggest that this historical naivety 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 naivety concerning law and violence. The implication will be that if we are genuinely looking to develop the Marxist critique of capital, we will have to look beyond the normal/emergency paradigm in our understanding of state power. And this will involve moving beyond what are essentially liberal assumptions about the rule of law.
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 the 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 UK, the Defence of the Realm Act (DORA) was rushed through Parliament in 1914 giving powers ‘to issue regulations…for securing the public welfare and defence of the realm’, while the US constitution vests power in Congress to call forth the militia to suppress rebellions and invasions (Article I, Section 8, Clause 15) and provides for suspension of habeas corpus in cases of rebellion or for safety (Article I, Section 9, Clause 2). But if we unpick both the legislation and the history of emergency powers, we find that they are often exercised for reasons apparently far removed from war, or at times which don’t have the semblance of a military engagement between nation states.
The real story of emergency powers is much less a story of wartime responses, and much more a story of two interrelated processes. First, a broadening of the definition of what constitutes an emergency, taking the notion well beyond military conflicts and crises. And, second, a drastic increase in the scope of emergency powers. So although there is no question that wartime experiences played a major part in the proliferation of emergency powers, from a broader historical perspective such a focus risks both overstating the novelty of wartime emergency powers and understating the manner in which emergency powers have been used for other purposes. In particular, it underplays the way emergency powers have been used in controlling labour and dealing with industrial unrest. William Scheuerman has argued that on the one hand, the use of emergency power to crush labour unrest and socialist agitation built, albeit tenuously, on the limited understanding of an emergency situation as one involving violent conflict. But on the other hand, such use of emergency authority as a political instrument against the labouring classes ‘foreshadowed the open employment of emergency power during peacetime’. It was as much the ‘emergency’ posed by the threatened railroad strikes in 1916 and 1917 and other related industrial unrest during this period as it was the First World war which pushed the US into extending its emergency measures - during 1917 there were well over 4,000 work stoppages, as well as the mobilization organized by the Industrial Workers of the World (Wobblies). The emergency powers which came to the fore merged easily into the emergency of war mobilization.
Thus emergency powers are in fact more interesting, politically more revealing, and more challenging, when considered in terms of periods of ‘peace’ and the everyday functioning of civil society, for they are then revealed as nothing less than a persistent attempt at imposing ‘order’ on an oppositional labour movement and obedience on radical political organizations. For example, the extensive powers granted by the Emergency Powers Act 1920 (EPA), which replaced DORA in Britain, were immediately exercised during a miners strike of 1921, and then again in 1924 during a London Transport strike, for eight months during 1926 to manage the General Strike (even though the strike lasted only a few days), 1948 and 1949 during dock workers’ strikes, 1955 during a railway strike, 1966 during a seamen’s strike, 1970 during strikes by refuse collectors, dock workers and electricity workers, 1972 during the miners strike and a dock workers’ strike, 1973 during the strike by miners Glasgow fireworkers, 1975 during a refuse collectors’ strike in Glasgow, and 1977-8 during a fireworkers’ strike. Far from military conflict, then, it was war of a rather different kind – the class war – for which the emergency powers were exercised. Parallel to this use, it was noted early in the use of the EPA that ‘the first prosecutions to follow on the “emergency” [of 1921] were of course, prosecutions of Communists’, including a raid on the Communist Party’s offices on 7 May, 1921, in which the offices were stripped of virtually everything that was moveable (apart from the ashes of Eleanor Marx Aveling waiting to be shipped to Moscow).
If we take just two further examples – the Weimar Republic and New Deal America – we also find that emergency powers were more commonly used for the political management of economic regulation and labour relations. While the emergency powers granted by Article 48 of the Weimar constitution are often taken to be a means of defending the constitution from the political ‘extremes’, it became clear from an early stage that Article 48 had much broader uses, on the grounds that ‘public order’, ‘safety’ and ‘security’ could be economic in character. From late-1922 it was emergency ordinances and decrees of a social and economic nature that predominated. One Reich Chancellor, Luther, noted this in 1928 when he commented that Article 48 ‘proved to be very useful in cases of extreme urgency when economic measures – and especially the imposition of taxes – had to be carried out’. It has been estimated that of the sixty-seven decrees issued between October 1922 and 1925, forty-four were devoted to economic, fiscal and social problems. Similarly, approximately sixty emergency decrees were passed during the progressive deterioration of the economic situation in the early 1930s, virtually all of which were for economic purposes. Depending on how one measures them, emergency powers of one sort or another were operational for about one-half of the Weimar period.
Much of the New Deal was likewise carried out under emergency powers. Two days after his inaugural address Roosevelt referred to a state of national emergency and proclaimed a ‘bank holiday’ forbidding the export of gold and silver and prohibiting transactions in foreign exchange. The ideology of emergency underpinned a series of such proclamations and promulgations throughout the 1930s, including the Agricultural Adjustment Act and the National Industrial Recovery Act (NIRA) of 1933, with the latter giving the President a more or less unlimited right to issue regulations concerning industry on the grounds of ‘a national emergency productive of widespread unemployment and disorganization of industry’.
Once we start looking, then, we find the use of emergency powers has been a regular feature of economic regulation in Western democracies in the last century. Nasser Hussain has also shown the extent to which the concept of emergency was deeply inscribed in the colonial mode of rule. The best illustration is perhaps the eight-year state of emergency in Kenya from 1952 to 1960, during which time the best part of 1.5 million people had been detained, nearly the entire Kikuyu population. But a large enough range of other examples could be found. Writing in 1960, Denys Holland noted that from 1946 to 1960 states of emergency had been proclaimed on no less than 29 separate occasions in British dependent territories alone, ranging from Aden to Zanzibar. These were proclaimed either under the Emergency Laws Orders in Council, 1939 and 1956, or under local emergency legislation of either a temporary or permanent character, and allowed for the control of people and movement, curfews, the confiscation of property and land, pass laws, the banning of publications, the disbanding of political organizations, suspension of due process, detention without trial. Again, these often had little to do with war and everything to do with economic regulation and class power: the emergency law in Kenya, for example, involved forced labour on settler estates, with the Kikuyu required to work unpaid ninety days a year on ‘communal projects’. The emergence of new nations from colonialism to independence did little to change the operational logic under which they had been previously governed
This widespread use of emergency powers has been confirmed in official report after official report. In 1963 the Inter-American Commission of Human Rights found that more than a hundred states of emergency had been declared in the member states of the OAS during the preceding decade, while one study in 1978 estimated that at least 30 of the 150 countries then in existence were in a state of emergency. The 1986 Interim Report to the International Law Association found that approximately 70 states were at the time undergoing some type of emergency. The Despouy Report for the UN found that between January 1985 and May 1997 some 100 states or territories – that is, over half the member states of the United Nations – have at some point been under a state of emergency. The Report points out that ‘if the list of countries which have proclaimed, extended or terminated a state of emergency [in this period] were to be projected onto a map of the world… the resulting area would cover nearly three-quarters of the Earth’s surface’. As the International Commission of Jurists put it in 1983: ‘It is probably no exaggeration to say that at any given time in recent history a considerable part of humanity has been living under a state of emergency’. At the same time, however, we find that crisis, exception, emergency, are no longer sporadic episodes in the lives of many states but have been a constant resort for the ruling class: under Roosevelt’s emergency measures, the US by 1939 appeared to be in its thirty-ninth emergency in six years.
Walter Benjamin goes to Senate
The thirty-ninth emergency in six years? That’s a lot. It sounds like something odd has happened in the form of political rule. ‘Plain bad management’, as Congressman Barton put it. But in fact what is at stake here is much more than bad management. What we are dealing with, it seems to me, is not bad management, and not even crisis management, but just plain, everyday, political management – the normal state of affairs for modern capitalist states. But why it is the norm is the important question. For this question takes us to the heart of emergency powers, the rule of law, and the exercise of violence; it takes us, in other words, to the political administration of capitalist modernity. It also sheds some light on current debates about the war on terror. But let us get at this in a roundabout way.
In the early 1970s an increasing concern about emergency powers prompted Senate to establish a ‘Special Committee on the Termination of the National Emergency’. The aim was to examine the use of emergency powers in the US and to propose how to bring them to an end. The report which eventually emerged from the Committee opens with the following pronouncement: ‘Since March 9, 1933, the United States has been in a state of declared national emergency’. It went on: ‘In addition to the national emergency declared by President Roosevelt in 1933, there are also the national emergency proclaimed by President Truman on December 16, 1950 during the Korean conflict, and the states of emergency declared by President Nixon on March 23, 1970, and August 15, 1971’. In other words, the Report found that not only was the Vietnam War being conducted under forty year old emergency legislation, but the whole of America seemed to be governed under the same powers. The Committee noted that ‘these proclamations give force to 470 provisions of Federal law’ under which ‘the President may seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communication; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens’. As the Committee notes, a forty year state of emergency can in no way be defined as ‘temporary’. The US had, in effect, been in a ‘permanent state of emergency’. In the view of a Professor G. Casper during the Hearings ‘there’s no such thing as normal times anymore’.
That this was so can be seen, ironically, by the Act which followed. What emerged from the Senate Report was the National Emergencies Act, 1976 (NEA) and the International Emergency Economic Powers Act, 1977 (IEEPA), designed ostensibly to constrain executive authority exercised via emergency powers. The four existing states of emergency and the majority of the emergency statutes were terminated as of 1978, and new procedures were created for delegating legislative power to the President. But the new legislation kept in place the key provisions which had underwritten emergency law through the twentieth century, namely Section 5(b) of the Trading With the Enemy Act 1917 (TWEA) and the key sections of the United States Code (USC) dealing with emergencies. The TWEA was ‘an Act to define, regulate, and punish trading with the enemy’ by regulating certain financial and banking practices. In the context of the World War I, it was recognized that there might be enemies of the US living within its borders, but in passing the TWEA Congress had been careful to ensure that the provisions of the Act applied to those who were ‘other than citizens of the United States’. The assumption was that citizens couldn’t be enemies. On 9 March 1933, however, as part of the exercise of emergency powers, the government amended section 5(b) of the TWEA so that it now covered ‘any person within the United States’. In terms of the area covered by Section 5(b), US citizens were no longer to be distinguished from enemies of the US. The NEA held that anything determined by the Act would not apply to Section 5(b) of the TWEA and its subsequent amendments. In retaining this as part of the Federal Code, the US state effectively declared itself as on a permanent war footing in the everyday policing of its own citizens. As if to confirm this, more or less immediately following the final termination under the NEA of the four states of emergency there was a declaration of a national emergency - in November 1979 in response to US embassy being seized and hostages taken in Tehran. Since then, over 30 national emergencies have been declared, all the way up to the more recent ones dealing with the post-9/11 ‘war on terror’. In this sense, it is no exaggeration to say that the US spent most of the twentieth century and, so far, all of the twenty-first century, in a state of emergency.
Is the US a particular case here? Research suggests that far from being peculiar, the US was following the normal route for states. Again, a mass of examples can be accumulated, but a few will suffice. The pattern to watch for is that new forms of emergency powers to deal with ‘exceptional’ events end up becoming permanent and normalized.
One standard example is the repressive strategy adopted by the British state in Northern Ireland. The Civil Authorities (Special Powers) Act (Northern Ireland) 1922 (SPA), conferred on the police and Ministry of Home Affairs wide powers: to impose curfews; proscribe organizations; censor literature; attend or ban meetings; restrict individual movement; stop, search and seize any vehicle; to arrest without warrant on the grounds of suspicion; to question, search and detain; and, most significantly, to use internment without trial. Originally meant to last for one year, it was renewed annually until 1928 when it was then extended for 5 years, at the end of which it was made permanent. In other words, emergency legislation was entrenched and normalised as a key mechanism for governing Northern Ireland from its inception. The Northern Ireland (Emergency Provisions) Act (EPA) of 1973 was likewise passed as a temporary measure following a declaration of emergency by the then Conservative government (the fifth in three years). Though ostensibly designed to replace the SPA, in effect it took the powers of the SPA and added a few more, such as the elimination of juries from the court system. The Secretary of State for Northern Ireland, Merlyn Rees, stated that the Act ‘makes emergency provisions and is by its nature temporary, to cover the period of an emergency’. The Act remained in force for 26 years. The story of the Prevention of Terrorism (Temporary Provisions) Act 1974 (PTA) is the same. Passed for one year - the Home Secretary Roy Jenkins stated that no-one ‘would wish these exceptional powers to remain in force a moment longer than is necessary’ - the Act was amended in 1975 and 1983, re-enacted in 1984 and became permanent in 1989. The cumulative effect has been that emergency powers have de facto been exercised as a permanent feature of the political landscape. Thus the permanent crisis in Northern Ireland stands in stark contrast to the notion that a state of emergency is by definition exceptional. For from being an exception, in Northern Ireland emergency has been the norm: ‘Any analysis of Northern Ireland’s legal history informs us that this is a state which has never known anything but emergency rule’. The extent to which this is the case is witnessed by the complete retention of emergency powers through the period of the ceasefire and beyond.
But emergency legislation in Northern Ireland has almost always become general legislation applicable to the whole of the UK. The PTA, for example, came to apply to the whole of the UK. This is a prime example of the normalization of originally ‘special’ powers: what was designed yesterday for a specific region applies today to the whole nation; what was exceptional yesterday becomes normal today. Again and again one finds emergency powers seeping into the ordinary criminal law: Articles 34 through to 37 of the Criminal Justice and Public Order Act (1994) repeat almost verbatim the provisions of the Criminal Evidence Order (Northern Ireland) of 1988 regarding the right to silence, while section 23 of the Anti-Terrorism, Crime and Security Act (ATCS) 2001, introducing detention without trial for non-UK nationals, is merely an expansion and normalization of internment as practised in Northern Ireland and during the various ‘emergencies’ in the colonies. Many of the principal measures provided by the SPA eventually made it into regular law, finding their way into the Incitement to Disaffection Act 1934, the Public Order Act 1936, and the various police and public order acts which followed.
For the sake of some brevity we can get a strong sense of how common this pattern is by setting this broad historical sketch of the US and UK against a wider backdrop of four formative political transformations in the post-45 period in world politics. These are meant to be illustrative rather than exhaustive: alongside the examples from the UK and the US, they are intended to show the extent to which emergency powers have been integral to the consolidation of capitalist modernity in different national and political contexts.
First, Israel. The state of Israel has been under continuous emergency since its inception in 1948. The original temporary status of the emergency was quickly held up to be yet another piece of political mythology. Under the legal structure put in place by Article 9(a) of the Law and Administration Ordinance of 1948, once an emergency had been declared the government enjoyed the power to govern by decree, including the power to alter, suspend or modify the application of any piece of primary legislation by way of emergency regulations, to the extent that the emergency regulations could change or suspend provisions of the Basic Law (unless the latter had been entrenched against such encroachment). As Oren Gross has shown, the ‘constitutional revolution’ of 1992 changed little. There are now some additional legal hoops that the government must jump through to renew the declared state of emergency and periodic calls for making the annual review process more effective and meaningful, or for even lifting the state of emergency, but no real change has taken place: the state of emergency has continued uninterrupted. In this respect, emergency government has been the norm in Israel. What started as temporary transition mechanism during a ‘war of independence’ quickly became and remained a permanent feature of the Israeli state.
Second, apartheid South Africa. The Sharpeville Massacre is well-known for signaling the start of armed resistance in South Africa and condemnation of apartheid by policies by certain sections of the international community. It was also the start of a permanent emergency. During the first period of emergency some 11,503 persons were held in detention. But while the declaration of emergency was successful in suppressing political opposition, from an economic point of view it was disastrous, as foreign investors lost faith in the country’s political stability. The apartheid regime therefore initially enacted temporary measures, such as the 90-day detention law, which required annual renewal by Parliament. With foreign investors increasingly satisfied at their ‘temporary’ nature, the Government became bolder and enacted emergency measures that were both more severe and eventually become a permanent part of the South African legal system. Though withdrawn in January 1965, the ‘90-day detention law’ was quickly replaced by a ‘180-day detention law’. This became a permanent part of the South African legal system, extended and enhanced by the Terrorism Act of 1967 which permitted the indefinite detention without trial of suspected ‘terrorist’, and then the introduction of preventive detention with the Internal Security Amendment Act 1976. Following the declaration of a further state of emergency in July 1985, reimposed in June 1986 and renewed annually thereafter, South Africa began formally incorporating portions of its emergency provisions into ordinary legislation, to the extent that the ‘normal’ law of the land constituted a massive and widespread derogation from international human rights agreements. There was therefore no such thing as a ‘temporary’ emergency in apartheid South Africa.
Third, postcolonialism. In November 1959 the British government announced that the eight-year emergency in Kenya was to end and the Emergency Regulations revoked. But the revocation of the Emergency Regulations did not lead to a return to anything like ‘normal’ peace-time laws. Two Ordinances were immediately made conferring semi-emergency powers, which actually fell very little short of those which may be taken in a full emergency. The Ordinances seem to have enabled the Government to proclaim the end of the emergency without making a huge difference to the way Kenya was governed. This pattern has been the same for virtually all post-colonial situations, from Malaysia’s permanent state of emergency since independence, reinforced by the Emergency Ordinance 1969 which has never been terminated, to Brunei’s repeated extension of the state of emergency first declared on 12 December, 1962. As the one time UN Commissioner on Human Rights, Kéba M’Baye, put it in 1969, ‘all these developing States, constantly threatened by disorder and economic difficulties, consider themselves to be permanently in an emergency situation’.
Fourth, Latin American regimes. The unsurpassed example here is the Stroessner regime in Paraguay. A ‘Report on the Situation of Human Rights in Paraguay’ by the Inter-American Commission on Human Rights in 1978 found that the provision for declaring a state of siege in the Paraguayan constitution had led to its continuous use, meaning that emergency measures had been extended more or less indefinitely, to the point of becoming permanent. Well, not quite permanent: one day every four years the emergency was suspended in order for elections to take place. Worse, the Inter-American Commission found that it was impossible to gather exact information as to the date on which Paraguay first came under the state of siege. An emergency had been in continual effect between 1929 and 1946. After an interruption of six months in 1946, the emergency was again put into effect in 1947 and appears to have been in force until 1987. Paraguay is not alone among Latin American countries. The Despouy Report noted the example of Columbia ‘where a state of emergency, in various forms, has been almost uninterruptedly in force for some 40 years’. In addition, the Report noted that ‘Chile, Argentina, Uruguay and El Salvador, amongst others, have experienced long periods of institutionalized states of emergency under military regimes’.
These four examples are interesting because they show the extent to which emergency powers have been used in very different types of regime: the racial state of Israel, the apartheid state, colonialism, and authoritarian Latin American regimes. If we add them to the examples of the UK and the US it becomes very clear that emergency rule has been crucial to the consolidation of capitalist modernity. Moreover, it also becomes clear that emergency powers more often than not have a way of remaining in place well beyond the life of the situations which supposedly justified their introduction in the first place. Either the state of emergency is constantly re-enacted, or it remains in place by virtue of not being explicitly repealed, or it is eventually placed on to the statute books as part of ‘ordinary’ legislation. What appear initially to be extraordinary powers developed under the auspices of emergency very quickly and easily infiltrate the ordinary legal system. Such normalization not only gives the powers a formal legal grounding, but also has a discernible effect on wider political culture, creating an ‘emergency mentality’ among the general population. Because of this, it is more or less impossible to distinguish emergency powers from normal law, as the former slips and slides into the latter.
And because of this that one finds permanent emergency wherever one looks. Of the 100 states which the UN had found to have at some point been a state emergency between January 1985 and May 1997, many of them had presented their emergency to the UN as permanent (either de facto or de jure): Zambia from 1964 to 1991, Zimbabwe from 1965 to 1990, Peru from 1981 onwards, Pakistan from 1977 to 1985, Malaysia from 1969 onwards, Ireland from 1976 to 1995, Brunei from 1962 onwards. The list goes on and on. As the Despouy Report commented, the tendency for the exception to become the rule is in fact a world-wide phenomenon. There appears to be no time which actually was normal. But if, historically speaking, times are never ‘normal’, is there any conceptual mileage in the concept of emergency? Maybe ‘normal times’ is the biggest political myth going. And if it is, what does this say about the current fad for describing our situation post-9/11 as a permanent emergency?
Against normality
The assumption that the state of emergency is outside or beyond law assumes a distinction between law and politics. The argument goes something like this: First, the state of emergency/exception creates legal black holes, or introduces practices of dubious juridical status, in which basic liberties and rights are abandoned and the rule of law thereby suspended. Second, the current emergency situation now appears permanent, due to the ongoing war on terrorism. This means we’re in permanent black hole, with no law. But this is a poor argument.
For a start, one has to wonder about the idea of legal black holes. To take the current conflict, the Bush administration has been at pains to hold the line that ‘we’re a nation of law’ and that ‘the instructions went out to our people to adhere to the law’. To be sure, this is in part pure rhetoric, but it is important rhetoric since its implication is that any lawbreaking is down to some wayward individuals who, if identified and caught, will be punished (that is, will be punished within and by the law). This classical and powerful ploy - the ‘few bad apples’ thesis - is used time and again by political leaders to reiterate their position as upholders of the law: ‘a few who have betrayed our values and sullied the reputation of our country…. Those who committed crimes will be dealt with’ (Rumsfeld). That’s how lawful we are.
At the same time, states constantly employ lawyers to explain and defend emergency tactics which might appear unlawful. A claim made in a House of Commons Report on the law of occupation as it may pertain to the Iraq conflict is interesting in this regard. ‘In the case of Iraq, the main purpose of obtaining a mandate in the form of a Security Council resolution was to evade legal difficulties if the occupying powers sought to move beyond the limited rights conferred by the Hague Regulations and Geneva Convention IV to vary existing arrangements’. It was known that some ‘evading’ of legal difficulties would be necessary; a Security Council resolution would simply have made it easier. The key is the acknowledgement that ‘evading legal difficulties’ takes place. This evading often involves some real casuistry – one thinks of the recent debates over the Geneva Conventions concerning ‘prisoners of war’ or the meaning of ‘torture’ – but it is nonetheless legal casuistry: it involves serious attempts to interpret the law from within. And that, after all, is a practice lawyers constantly tell us needs doing. The manipulation of law to ‘evade legal difficulties’ – internationally by the ruling powers, domestically by the ruling class – has a long history. But such manipulation does not, however, mean that the law is not operative; indeed, it tells us the very opposite. Thus one can debate whether this or that practice carried out in the name of emergency is legal or illegal. But ultimately, one has to bear in mind that the driving logic of emergency is the logic of national security and military necessity. And in the world of national security and military necessity, more or less anything can be justified. Cursory examination of the laws of war thus ‘reveals that despite noble rhetoric to the contrary, the laws of war have been formulated to deliberately privilege military necessity at the cost of humanitarian values. As a result, the laws of war have facilitated rather than restricted wartime violence’. The tactic of deliberately burying Iraqi troops alive during the 1990-91 Gulf war and the ‘Turkey Shoot’ on the road to Basra during the same conflict were defended as entirely legal by the Pentagon and international lawyers. The range of emergency practices carried during the more recent war on Iraq, such as detention without trial and torture, have been similarly defended. In other words, it is through law that violent actions conducted in ‘emergency conditions’ have been legitimated.
It is for these reasons that the courts have in general been more than happy to accede to emergency powers. In the case of Northern Ireland, to take one example, the imposition of new emergency laws time and again met with no legal challenge or resistance from the supposed guardians of due process and constitutionality. This is far from being an experience unique to Northern Ireland. The judiciary in states across the globe have frequently conceded to the supposed ‘necessity’ for the use of emergency powers, including what appear to be a range of human rights abuses. From the Korematsu case in which the Supreme Court held that the internment of some 70,000 American citizens was legally acceptable, to the more recent Middle Eastern adventures on the part of Western powers, virtually every exercise of violence conducted in the name of emergency has been justified and legitimized on legal grounds. That this is so should not be a surprise since, as we have seen, emergency powers per se are entirely constitutional. Hence the point made earlier: no constitution exists that does not contain provisions for emergency rule. The ruling class was never going to be so stupid as to produce a constitution which does not allow it to suspend fundamental liberties and rights in the name of emergency.
To criticise the use of emergency powers in terms of a suspension of the law, then, is to make the mistake of counterpoising normality and emergency, law and violence. In separating ‘normal’ from ‘emergency’, with the latter deemed ‘exceptional’, this approach parrots the conventional wisdom that posits normalcy and emergency as two discrete and separable phenomena. This essentially liberal paradigm assumes that there is such a thing as ‘normal’ order governed by rules, and that the emergency constitutes an ‘exception’ to this normality. ‘Normal’ here equates with the separation of powers, entrenched civil liberties, an ongoing debate about public policy and law, and the rule of law, while ‘emergencies’ are thought to require strong executive rule, little time for discussion, and are premised on the supposedly necessary suspension of the law and thus the discretion to suspend key liberties and rights. But this rests on two deeply ideological assumptions: first, the assumption that emergency rule is aberrational; and, second, an equation of the emergency/non-emergency dichotomy with a distinction between constitutional and non-constitutional action. Thus liberalism seeks to separate emergency rule from the normal constitutional order, thereby preserving the Constitution in its pristine form while providing the executive with the power to act in an emergency. But the historical evidence suggests that emergency powers are far from exceptional; rather, they are part and parcel of ‘normal’ political rule.
Emergency, in this sense, is what emerges from the rule of law when violence needs to be exercised and the limits of the rule of law overcome. The genealogy of ‘emergency’ is instructive here. ‘Emergency’ has its roots in the idea of ‘emerge’. The OED suggests that ‘emerge’ connotes ‘the rising of a submerged body out of the water’ and ‘the process of coming forth, issuing from concealment, obscurity, or confinement’. Both these meanings of ‘emerge’ were once part of the meaning of ‘emergency’, but the first is now rare and the second obsolete. Instead, the modern meaning of ‘emergency’ has come to the fore, namely a sudden or unexpected occurrence demanding urgent action and, politically speaking, the term used to describe a condition close to war in which the normal constitution might be suspended. But what this tells us is that in ‘emergency’ lies the idea of something coming out of concealment or issuing from confinement by certain events. This is why ‘emergency’ is a better category than exception: where ‘emergency’ has this sense of ‘emergent’, exception instead implies a sense of ex capere [being taken outside]. Far from being outside the rule of law, emergency powers emerge from within it. They are thus as important as the rule of law to the political management of the modern state.
There is, however, and even wider argument to be made. The idea that the permanent emergency involves a suspension of the law encourages the idea that resistance must involve a ‘return to legality’, a return to the ‘normal’ mode of governing through the rule of law. But this involves a serious misjudgement in which it is simply assumed that legal procedures – both international and domestic – are designed to protect human rights from state violence. ‘Law’ itself comes to appear largely unproblematic. What this amounts to is what I have elsewhere called a form of legal fetishism, in which Law becomes a universal answer to the problems posed by power. Law is treated as an ‘independent’ or ‘autonomous’ reality, explained according to its own dynamics. This produces the illusion that Law has a life of its own, abstracting the rule of law from its origins in class domination and oppression and obscuring the ideological mystification of these processes in the liberal trumpeting of the rule of law. To demand the return to the ‘rule of law’ is to seriously misread the history of the relation between the rule of law and emergency powers and, consequently, to get sucked into a less-than-radical politics in dealing with state violence. Part of what I am suggesting is that emergency measures - as state violence - are part of the everyday exercise of powers, working alongside and from within rather than against the rule of law, as part of a unified political strategy in the fabrication of social order.
The question to ask then, is less ‘how can we bring law to bear on violence?’ and much more ‘what is it that the law permits emergency measures to accomplish?’ This rejects any supposed juxtaposition between legality and emergency and allows us to recognize instead the extent to which the concept of emergency is deeply inscribed within the law and the ‘normal’ legal condition of the modern state. Emergency powers are ‘permanent’ because they are part and parcel of the normal mode of governing. Once this is recognized then the supposed problematic of violence disappears completely. Emergency powers do not involve some kind of suspension of law while violence takes place, but are united with law for the exercise of a violence necessary for the permanent refashioning of order. Far from being a self-evident and peaceful good which might protect us from violence, the bloody and violent world around us is the product of the rule of law.
In this context it is appropriate to turn briefly to Benjamin’s comment on the state of emergency as the rule rather than the exception.
The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is not the exception but the rule. We must attain to a conception of history that accords with this insight. Then we will clearly see that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against fascism.
As I noted earlier, this comment has been cited time and again by those seeking to describe the current conjuncture as one of permanent emergency. But what tends to be omitted is Benjamin’s point that we learn about the permanent emergency not from the current conjuncture - either then or now - but from the tradition of the oppressed: if you want to know what emergency power looks like, read the history of the working class, for it is this history that reveals the permanent nature of the emergency. In other words, we should understand the state of emergency through a historical understanding of state power as class rule, not a contemporary reading of international relations. And this argument has political implications.
If emergency powers are part and parcel of the exercise of law and violence (that is, law as violence), and if historically they have been aimed at the oppressed - in advanced capitalist states against the proletariat and its various struggles, in reactionary regimes against genuine politicization of the people, in colonial systems against popular mobilization - then they need to be fought not by demanding a return to the ‘normal’ rule of law, but in what Benjamin calls a real state of emergency. As Slavoj Zizek puts it ‘when a state institution proclaims a state of emergency, it does so by definition as part of a desperate strategy to avoid the true state of emergency and return to the “normal course of things”’. The permanent state of emergency carried out by the ruling class, then, is part and parcel of the struggle against the real state of emergency carried out by those seeking any kind of alternative to capital and class.
Rather than being affronted by the permanent emergency and demanding a return to legality, then, we should be aiming to bring about a real state of emergency. And this is a task which requires violence, not the rule of law. As Benjamin saw, the law’s claim to a monopoly of violence is explained not by the intention of preserving some mythical ‘legal end’ such as peace or normality but, rather, for ‘the intention of preserving the law itself’. But violence not in the hands of the law threatens it by its mere existence outside the law. A violence exercised not by the state, but used for very different political ends. For ‘if the existence of violence outside the law, as pure immediate violence, is assured, this furnishes proof that revolutionary violence, the highest manifestation of unalloyed violence by man, is possible’.
That this possibility of and necessity for revolutionary violence is so often omitted when emergency powers are discussed is indicative of the extent to which much of the left has given up any talk of political violence for the far more comfortable world of the rule of law, regardless of how little the latter has achieved in just the last few years. But if the history of emergency powers tells us anything it is that the least effective response to state violence is to simply insist on the rule of law. Rather than aiming to counter state violence with a demand for legality, then, what is needed is a counter politics: against the permanent emergency, by all means, but also against the ‘normality’ of everyday class power and the bourgeois world of the rule of law.
Notes
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