Paper presented by Hanno Balz now available in the paperroom.
Paper presented by Hanno Balz now available in the paperroom.
Papers presented by Tobias Schottdorf and Jonas Heller now available in the paperroom.
This paper aims to examine the consequences on democracy of ‘permanent emergencies’ linked to terrorism, through the examples and comparison of France and Israel’s states of emergency. France has already extended the state of emergency, originally declared after the November 2015 attacks, for over a year. Israel has been under a state of emergency since its creation in 1948. In both cases, the existence of a state of emergency allows the government to adopt a number of measures which wouldn’t be legal otherwise.
Terrorism is often treated as an exceptional crime which requires an exceptional response, including the adoption of states of emergency. The changing nature of the terrorist threat requires a flexible legal framework, but there are a number of issues with creating exceptional regimes to deal with it, especially if these exceptional regimes become permanent. Exceptionalism might justify extreme rules and a wider range of measures because usual rules are considered insufficient. Yet, the desire for a symbolic message and swift action against terrorism should not cheapen the strength of existing legal measures, which run the risk of piling up without being actually implemented. In fact, we witness an inflation of terrorism legislation often adopted hurriedly and without proper implementation tools or sufficient budget. In turn, these emergency measures tend to settle in the long run as people get used to a new normal, leading to a slippery slope of what is acceptable. For instance, the new terrorism law in Israel enshrines in regular legislation measures that were, on principle, only applicable under the state of emergency.
In addition, emergency fosters extremes and often targets specific groups of people that can then become ostracized. In turn, this can create a climate of fear and resentment towards those suspected of terrorism, as well as discriminatory measures. States will tend to focus on the external and exceptional threat, instead of addressing long-term and domestic issues, which contribute to terrorism, such as radicalisation and integration.
Finally, under states of emergencies, the executive often adopts the primary role in setting the norms, which puts aside the review role of the judiciary. Yet, both in France and Israel, courts have increasingly become involved in ensuring the protection of fundamental freedoms and the separation of powers under states of emergencies, two intrinsic components of democracies. The paper will examine these three particular issues in the two states, and draw conclusions on the impact of exceptional counterterrorism measures on democracy and the rule of law.
The paperroom for the #StatEx2017-Conference got updated. Papers of Atanassow/Katznelson, Mischner, Blanck, Engler and Suntrup are now available. More to follow.
The Italian experience offers some interesting profiles when dealing with the state of exception and emergency situations. The 1948 Constitution – as her predecessor, the Albertine Statute of 1848 – does not provide for any emergency section. However, she provides for instruments to enact whenever a situation of necessity and urgency occurs (mainly the law decree, at Article 77, the powers assigned by the Parliament to the Government in case of war, at Article 78 and the substitute powers of the government, when necessary, of Municipalities, Provinces, Metropolitan Cities and Regions, at Article 120).
The fact that the Albertine Statute did not provided for an emergency section does not have to lead to the conclusion that an emergency situation (or, to use a formulation closer to the French doctrine, a stato d’assedio, état de siège) has ever been declared. The riots in Milan in 1898 or the earthquake in Messina in 1908 witnessed the enforcement of the wartime criminal military code, showing that the Italian legal system accepted the possibility of a legitimate use of extraordinary powers – even against the law – in order to preserve the State and of the legal and social order. The very same aim led King Victor Emmanuel III to appoint Mussolini as head of the government in the aftermath of the March on Rome in 1922.
In the democratic history, other situations happened that required the resort to some sort of emergency power, namely the passing of the legislative decree no. 625/1979, against the left-wing terrorism (the so-called Brigate Rosse, Red Brigades) – strengthening the police powers and compressing suspect rights – and the law no. 225/1992 establishing the Protezione Civile (Civil Defence). Under this second law, the government can pass civil defence orders to handle emergencies. Here the intent seemed more to provide for procedures and structures able to confront emergencies and to make the developments predictable rather than just to assign extraordinary powers.
Besides these ad hoc interventions, the Constitution provides for the instrument of the law decree that the government can enact in situations of extreme necessity and urgency (no further specification on the meaning of the two words is given). The abuse of this instrument made by the governments until the mid-1990s – due mainly to the weaknesses of the parliamentary executive innate in the extremely fragmented party system, the proportional representation and the subsequent coalition governments – shifted the balance from a parliamentary democracy to a so to speak governmental democracy. The long-awaited intervention of the Constitutional Court with the decision no. 360/1996 finally sanctioned this practice as unconstitutional, as in violation of both the prerogatives of Parliament – as the main law-making body – and the certainty of law.
Beside the abuse of the law decree, a more recent practice has been to resort to emergency instruments even in situations not properly of emergency – since not of unpredictable nature – but rather just difficult to handle, such as the 2006 Winter Olympics in Turin or the 2015 Expo in Milan (just to mention a few). In such circumstances the connection to the extraordinary character of the situation is lacking; nevertheless, the government exercises all the same emergency powers.
Furthermore, the present-day economic crisis has provided for further remarks on the twisting of the Italian form of government (and of the form of State, according to some scholars) in situations of emergency, namely with respect to the role of the President of the Republic and of the Constitutional Court.
The active engagement of President Napolitano in the last crisis of government (starting from the Berlusconi’s one in 2011) and as a strong advisor of governments seem to have proved right Esposito’s theory according to which – since the president is given the same powers as the monarch in the constitutional monarchy – it is up to him to actively intervene in situations of emergency. The Constitutional Court too rises some concerns, with respect mainly to a certain number of decisions marking a straightforward intervention in the competence of Parliament and government, when balancing spending review and rights’ protection.
It is convenient to consider further this twisting in the balance of powers in the light of the separation of powers and on the qualification of the Italian present-day situation as within the constitutional legal order of within the emergency.
As the conference on state of exception approaches, the first papers are available in the conference paperroom, beginning with Elisa Bertolinis text on the Italian experience of democracy and state of exception. You can access the paperroom here.
Please take note, that the papers are draft versions for conference use only. They may not be cited elsewhere. Comments are welcome.
When Carl Schmitt wrote about the „emergency“ („Ernstfall“) as being constitutive for the ultimate dualism of friend and foe, he outlined a theory of the state of emergency. Such emergency was repeatedly being invoked during the debate on terrorism in West Germany in the 1970s.
During that decade, the conflict between the Red Army Faction and the West German state proved to be a paradigm for the growing political polarization of communications in German society. It can be said, the terrorism-debate was the struggle over the state of the nation, and so the discoursive, political and moral boundaries were heavily disputed.
Both sides of the confrontation were also engaging in specific performances/performative acts that adressed a wider public – it was all about a demonstration of power. More than that, it showed that Carl Schmitt’s notion of political decisionism comes to bear on the reality of the states’ dealing with terrorism as well as with the terrorists’ “propaganda of the deed”.
Often the reactions from the West German executive authority were called an “undeclared state of emergency”. However, in political discourse of that time “Ausnahmezustand” became a frequently used term that implied a level of wishful thinking and therefore had a mobilizing quality. In recent publications I have called the effects and affects of Moral Panics during the German Autumn a “felt/perceived state of Emergency” (gefühlter Ausnahmezustand).
In my presentation at the Kolloquium at DHIP I therefore want to focus on the discoursive and performative qualities of a state of emergency during the German Autumn of 1977 and how this was referred to on both sides of the confrontation.
Im Rahmen der diesjährigen Tagung zum Ausnahmezustand zeigen wir den Dokumentarfilm „Endstation Bataclan“ von Alexander Smoltzcyk und Maurice Weiss. Der Film läuft am 13.11.2017 um 20:00 Uhr in den Räumen unseres Partners, des Goethe Instituts Paris. Alle wichtigen Informationen rund um den Film finden sich hier. Um Anmeldung wird gebeten.
On November 13, 2017, 8 p.m., we will present the documentary „Endstation Bataclan“, produced by Alexander Smoltzcyk and Maurice Weiss. The film is an important part of this year’s conference on state of exception. It will be shown at the site of our conference partner, the Goethe Institute Paris. Further information on the presentation can be found here. Registration is required.
While both the idea and the practice of a contemporary suspension of constitutional rights can be traced back to antiquity, the term “state of exception” (Ausnahmezustand) was coined only in the first half of the 20th century, most famously by Carl Schmitt. At the same time, it is often overlooked that his well-known definition of sovereignty must be linked to a concrete historical situation, namely the socialist revolution in Munich in 1918/19. Schmitt experienced the revolutionary collapse of the German Empire firsthand: it was this experience, I will argue, that shaped his decisionistic state theory.
Taking the link between Schmitt’s biography and political theory as a point of departure, this paper has two closely intertwined aims: concentrating on the aftermath of the First World War in Munich, it investigates the relation between the development of the concept of “exceptional” political situations on the one hand and its application as a tool of (re)establishing public order on the other hand. In doing so, it connects the abstract level of Begriffsgeschichte with the history of the actual implementation of emergency measures. In other words, the central question is: how did exceptional thinking and exceptional acting influence each other in a period of violent and revolutionary transformation in an urban context?
The paper will focus on Munich in the years 1918 and 1919. After the end of World War I, the former capital of the Bavarian Kingdom became the arena for a revolution that in many ways was far more radical and had longer lasting effects than elsewhere in Germany. On November 7, 1918, socialist Kurt Eisner proclaimed the republic and all over Bavaria, worker’s and soldier’s councils were founded, king Ludwig III abdicated. Eisner’s assassination in February 1919 strengthened the radical forces of the revolutionary movement, eventually leading to a bloody conflict between Munich’s Red Army and troops sent by the German government in Berlin. Thus, Bavaria found itself in a twofold state of exception: on the one hand, the monarchical government’s authority had collapsed within hours, leaving the revolutionary leaders in front of a constitutional vacuum that had to be filled with decrees, orders, and rules. On the other hand, the proclaimed Bavarian Freistaat (free state) itself was an exception within the framework of post-war Germany, challenging the authority of the newly formed republican government in Berlin.
The question posed above will be answered in three steps. First, I will delineate the evolution of the state of exception in Bavaria on a juridical and normative level. Special attention will be paid to the question of how the transition from the pre-war to the post-war political system influenced the government’s possibility of applying emergency measures as guaranteed by the respective constitution: did the post-war authorities rely on methods established by the former system? On which juridical sources were the countless revolutionary emergency decrees based on – if they had a juridical base at all? Second, I will examine the discourse on the exceptionality of the situation, be it regarding the political actors in Munich who legitimized their actions by describing themselves as the exceptional forefront of political and societal renewal in Germany, be it regarding the external perception of the Bavarian revolution. How did the revolutionary and counter-revolutionary forces – both operating officially in the name of freedom and democracy – publicly justify and communicate their actions that clearly violated the existing legal order? In a third step, I will look at the state of exception as a factor of political mobilization. Following Alf Lüdtke and Michael Wild, the state of exception can be understood as an „arena of possibilities, and of self-empowerments”. The state, thus, is “a moment of governance that is not ordered by the constitution rather than being constantly created by manifold actors, neither ‘top-down’ nor ‘bottom-up’.”  Consequently, one must ask whether there exists a distinction between the abstract legal order and the actual political situation within a revolutionary context at all. Or should one rather argue that once exceptional measures have been applied, there is no such thing as a normalcy anymore?
 Alf Lüdtke and Michael Wildt, Einleitung, in: id. (eds.), Staats-Gewalt. Ausnahmezustand und Sicherheitsregimes. Historische Perspektiven (=Göttinger Gespräche zur Geschichtswissenschaft, vol. 27), Göttingen 2008, pp. 7-38, here p. 23 (translation TB).
In the late 19th century, Europe (and, to a lesser extent, other parts of the world) experienced an unprecedented wave of political murders, assassination attempts and dynamite attacks that have often been regarded by political scientists as the prototype of modern terrorism. Mostly committed by anarchists as part of ‘propaganda by the deed’, these acts aimed to intimidate governments and social elites, and mobilise the working classes for the social revolution by showing them the fragility of the social and political order. They were always a challenge to governments and state institutions, for these had to prove their ability to preserve public peace, and give adequate answers to the calling into question of the monopoly on the use of force in order to maintain their legitimacy.
Anarchist terrorism failed as a mobilisation strategy. Yet, it proved quite effective as a provocation strategy and had important impacts on state politics and policies, legislation, policing, and public debates. Among the bourgeoisie and governments, it caused fears of an international anarchist conspiracy, which was fuelled by the expanding popular press. Most importantly for our purpose: many countries passed special laws that increased executive power, criminalised certain political views (anarchist and other), limited political and personal freedoms (of assembly and speech in particular), restricted the freedom of the press, and/or introduced special jurisdiction This was namely the case of France and Italy, where anarchist activism and a series of attentats led in the 1890s to a wave of repression taking recourse to special laws, in Italy also with the ‘state of siege’ being declared in some places. In both countries, the introduction and application of special laws gave rise to controversial debates about their commensurability, consistency with constitutional, liberal and/or democratic principles, as well as benefit and dangers for the political order.
Taking a comparative perspective, this paper explores the anti-anarchist laws and the debates about their introduction and application that took place in both parliaments and the press (two leading newspapers are examined per country). How were the special laws justified, how did the proponents and opponents of their introduction/application try to make their arguments plausible? To which extent was the situation framed, or explicitly referred to, as ‘state of emergency’ or ‘state of exception’? The paper will focus on the years 1893-94 when special laws were introduced in both countries, but also take into account the broader evolution of anarchist activism and its repression from the late 1880s to the turn of the century, and ask about the longer-term effects of the special laws.
As for the criterion of ‘established democracy’: the French Third Republic was the only big parliamentary democracy in Europe at that time. After the struggle between republicans and monarchist in the 1870s and the boulangiste danger of the late 1880s being adverted, the democratic regime can be considered as established. The Italian nation-state founded in 1861 was a constitutional monarchy and a liberal oligarchy rather than democratic; but from the 1880s onwards it underwent processes of de facto parlamentarisation (with governments asking the Chamber of Deputies for vote of confidence) and democratisation (through expansion of the electorate). The comparative approach will serve to carve out the peculiarities of each case, but is also intended to help us explain different practices – such as the broader recourse to special laws in Italy – and find out whether the difference of political regimes played a role.