Corona – Thoughts of Historians Working in Offices at Home in Germany and Britain

By Arnd Bauerkämper and Panikos Panayi[1]

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In the spring of 1914 it would have seemed impossible that, within a few months, civilization as it existed would have come to an end as the entire world geared up for a war, which should have finished by Christmas, but which would not end until 1918. While the war against germs fought on a global scale today does not directly mirror the events of 1914, there seem striking parallels. Both conflicts came at the end of a period of extraordinary economic growth, suddenly abandoned for the sake of a greater struggle against an enemy. In 1914 the process involved a mobilization for what historians have described as total war, repeated in 1939-45, and it seems that this type of reorientation of the entire economy and society has now repeated itself.

This has become most obvious today in the virtual shutdown which has taken place all over the world on a level which did not happen in either of the Two World Wars, except in the very darkest days of, for example, the Nazi invasion of the Soviet Union or the last days of the Allied bombing of Germany. Today public life, social interaction and economic growth are severely affected. Individuals live in an undeclared state of emergency in a war-like situation, as the militarist vocabulary of head of states such as French President Emmanuel Macron demonstrates (“nous sommes en guerre”). President Trump has recently even decided to reactivate the Defense Production Act of 8 September 1950 in order to force General Motors to produce desperately needed medical equipment. In contrast, rather like in the First World War, while Britain has introduced legislation similar to the Defence of the Realm Act of 1914. Boris Johnson’s government has partly relied on the voluntary principle: the millions of volunteers who joined battalions from 1914-16 have become the hundreds of thousands of people signing up to help the National Health Service. But, throughout the world, constitutional freedoms that are at the heart of parliamentary democracies have been suspended: the right of assembly, free economic activity and religious practice. For obvious reasons, these measures are indispensable for the time being. We are not proposing to risk lives by prematurely lifting the restrictions imposed by governments. Even in a medium-term perspective, however, suspending basic rights and severely restricting freedom is a dangerous path that is prone to undermining the very foundations of our democracies. It is therefore urgent to assess the range of consequences of the present shutdown. The repercussions for health need to be considered, as well.

Politics

Urgent calls for ever more restrictions are understandable, but potentially dangerous. Populist and authoritarian rulers can exploit these demands to present themselves as strong leaders who purportedly guarantee order and stability. Hungarian Prime Minister Victor Orbán now rules by emergency decrees and has therefore suspended parliament. Similarly, Presidents Xi Jinping and Vladimir Putin are clearly trying to exploit the coronavirus crisis for self-aggrandisement. They present themselves as strongmen who are more capable to contain the virus than democracies. For instance, China’s Ambassador to France claimed that individualism, hedonism and selfishness has prevented liberal western states from effectively fighting the pandemic. Similarly, advocates of authoritarian rule have espoused a strong central state while belittling federal systems. These propaganda efforts cannot cover up the weaknesses of central rule that clearly failed to tackle the problem of the rapidly spreading virus in China in late 2019 and early 2020. Suppressing early warnings is surely not a commendable policy vis-à-vis emerging security threats.

Economy

How much decrease in gross domestic product can democracies afford and survive? 10, 20 or 30 per cent? Needless to stay, all advanced economies have quickly passed extraordinary legislation to support both large companies, owners of small businesses and those who have lost their jobs, at least temporarily. Millions have lost their assets on the plummeting stock market. While the transformation of democracies into authoritarian or even fascist states as a consequence of the Great Depression of the late 1920s and early 1930s is not likely to simply repeat, economic discontent may fuel political unrest. The current crisis seems destined to knock out Trump in the November Presidential election, as he has looked out of his depth. Mature wealthy western economies and democracies will see out the storm, albeit with a significant economic cost, but not as great as that consequent upon the Two World Wars. On the other hand, how will less prosperous societies such as India and Brazil cope with lockdown?

Society

Keeping couples and families at home has a considerable price. Women’s refuges have noticed an increasing number of inmates. There is evidence of increasing domestic violence, and children, too, need to exercise instead of sitting in front of computers in their rooms all the time. Not least, the elderly (at home or in care homes) are essentially isolated due to their liability to infection. Interchange between generations is gravely restricted, especially as some of the elderly do not have expertise in the use of social media. Social distancing may prove possible for middle class families and individuals in the West but proves more difficult for migrants such as Mexicans who worked in the US restaurant sector or European migrants employed in all manner of service jobs in London, in both cases, living in lower quality accommodation in close proximity to neighbours and now spending all their time at home. Outside the West, especially in cities, social distancing proves even more difficult as families sometimes live in one room as the example of Delhi demonstrates.

Migration

Perhaps no era has witnessed the scale of migration of the twenty first century, especially if we include everyone from tourists to those moving in search of employment. This has come to an almost complete halt with millions of people left stranded away from their home countries, desperate to return, mirroring the outbreak of the First World War (although today on a much larger scale). On the other hand, millions of Indians are streaming out of big cities towards their villages, conjuring up images of the population displacement which took place as a result of the 1947 partition. Even in Russia, thousands of inhabitants of Moscow have recently taken the chance to spend exceptional holidays granted by Putin to go to the countryside, thereby spreading the virus.

Health

During the two World Wars all sides incarcerated their real or imagined enemies, but confinement on the scale currently underway has never been imposed on a global scale, even during previous times of quarantine, which tended to take place locally.  Studies of camp life in the two world wars have demonstrated that confining people to limited spaces can lead to violent outbursts, despair and in some cases even psychic illness. Within most camps some semblance of normality survived as prisoners could play sport and music because they could interact with each other. The concentration on conquering coronavirus has meant that routine medicine has suffered: will the lives lost in consequence exceed those who die from coronavirus?

The Future?

What are our conclusions from these deliberations in our offices at home? First, we all need hope and a clearer perspective of a return to ‘normal’ conditions. Our life will be different after the coronavirus, but we as free citizens cannot accept restrictions for an indefinite period of time, although it seems inevitable that surveillance of our health will increase, as has happened in China. Second, the emergency legislation has to be temporary – a provision that has not universally been enshrined in the new laws. Even though they have been tied to clearly defined aims, the balance between means and ends need to be continuously assessed by responsible leaders who were not involved in enacting the law – another crucial precaution that American political scientist Clinton Rossiter emphasised with regard to states of exception in democracies as early as 1948. Third, we need a multi-perspectival approach to the coronavirus crisis. Politicians have hitherto almost exclusively followed the advice of medical experts (or even more narrowly) virologists. This has not been completely unjustified, but we need to broaden the perspectives. Virologists, like all academics, tend to obsessively focus upon their own subject without looking at the broader picture. Boards of closely cooperating experts (in particular doctors and medical experts, anthropologists, sociologists, ethicists and historians) are urgently needed.

We will overcome the coronavirus crisis, even though the world will be different in many respects (for instance with regard to digitalisation). Will we fly as much? Will we need to eat out to the same extent? Will the western middle classes grow to love their immediate environment rather than desire to travel to exotic locations? How long will it take before economic growth returns to normal? Years or decades? Perhaps we will forget about our obsession with annual economic growth and the need to buy expendable commodities which drives western economies forward.  But we need to make sure that we do not leave lasting damage and deformations as an unintended legacy, especially in terms of the nature of hard-earned freedoms.

[1] Arnd Bauerkämper is Professor of Modern History at the Freie Universität Berlin while Panikos Panayi is Professor of European History at De Montfort University, Leicester.

Punitive Responses to Terrorism: Final Programme Available

The University of Hamburg, Faculty of Law, will hold an international Symposium on Punitive Responses to Terrorism on February 27 and 28, 2020, at the Warburg Haus.

The final programme is now available. It contains three sessions: on legal frameworks, on country reports and comparative perspectives, and on cross-cutting and interdisciplinary perspectives. A PDF-version of the programme may be downloaded here.

On Friday, February 28, Matthias Lemke will give a talk on „Political sciences perspectives: Normalizing the exceptional“.

 

International Symposium: Punitive Responses to Terrorism

The University of Hamburg, Faculty of Law, will hold an international Symposium on Punitive Responses to Terrorism on February 27 and 28, 2020, at the Warburg Haus.  An updated draft programme is now available for download. The final programme will be published here once it is available.

The idea of the symposium is to have a workshop style event which leaves enough room for discussion. Speakers are asked to present their topic for approximately 30 to 40 minutes each. Discussants are invited to give comments (discussing aspects presented by the speakers or adding further aspects) of approx. 10 to 15 minutes before a general discussion for each session.

Matthias Lemke will give a talk on „Political Sciences perspectives: the normalisation of the exception“.

New Normality? Perspectives on Contemporary Research on State of Exception

With the following text, we finally publish the concluding chapter of the forthcoming issue Matthias Lemke  / Ece Göztepe / Olivier Cahn (Ed.), New Normality? State of Emergency as Contemporary Government Technique. The editors are happy to present this last piece of the outcome of the #StatEx-2017-Conference which was held in Paris at the German Historical Institute one year ago. The concluding chapter will be published – together with the other articles already presented on this blog – online first as the 4/2018-issue of the German Journal of Political Science. We wish to thank all the contributing authors as well as the Fritz-Thyssen-Foundation (Cologne), the Foundation for Science and Democracy (Kiel), the Minerva Center for the Rule of Law under Extreme Conditions (Haifa) and the Goethe Institute in Paris for their precious support.

1. Some general considerations

As the contributions to this volume show, state of exception (SoE) is and has been a crucial phenomenon in governing modern and accordingly complex democratic societies. Being an important tool for crisis response, the practice of SoE occurs in situations when democratic societies are extremely vulnerable. Such vulnerability may exist due to internal or external threats, real or perceived threats, man-made or non-man-made threats. They can also crop up when societies are, generally speaking, exposed to significant change.

Therefore, SoE, as an instrument of crisis governance, has a fundamental impact on societies when they are in a fragile condition. Literally taken as a governance technique, SoE does not deal with fundamental crisis. By introducing far-reaching changes to the given political, institutional, and legal order, it can be seen as a veritable game-changer with regard to democratic foundations. What is striking is its ambivalence: SoE as a tool—in a very technical sense of the term—can resolve critical crisis situations that would otherwise have overstrained the existing political order. It can also serve as a door-opener by introducing fundamental changes to an authoritarian political system. It is in between these two extremes where the political capacity of SoE unfolds.

Taken together, these two elements—the omnipresence of SoE in contemporary democracies and its ambivalence regarding the purposes in which it might be used—require close and continued monitoring of techniques that rely on the enlargement of the executive’s competences. This leads to the following questions: How is it possible to organize such monitoring? What developments should it consider and what issues are the most important?

2. Monitoring SoE: Six theses

Monitoring the contemporary use of SoE as a government technique is a complex task. Owing to a variety of existing cases, it seems inappropriate to come up with a general research strategy that claims to cover all of them. Instead, we would like to propose six theses that, as we hope, may inspire future work on SoE.

The concept of SoE is not limited to the era of the modern state. Existing research on SoE generally admits that the Roman dictatorship was some sort of a predecessor of enlarged executive competences. Transferred to modern times by Machiavelli, the idea of suspending a given constitutional framework for enhancing its crisis intervention capacities can be traced back to the idea of the modern state. What is largely missing in this reconstruction is the whole period between the end of the classical era of the Roman Republic and the Italian Renaissance. Attempts to identify functional equivalents to the SoE in the Middle Ages—as Petra Schulte has shown regarding the term necessitas—may be fruitful to understand the rationale behind SoE beyond a developed, complex, and therefore, modern statehood.

SoE must not be reduced to legal issues. Of course, SoE is embedded in the constitutional or legal order of the state. Therefore, its legal layout is indispensable when it comes to analysing the specific form of a SoE. Anyway, the analysis should not stop there. The legal dimension of SoE often limits itself to the form of crisis intervention. But it often fails to fully grasp the performative dimension—the use that a specific government at a specific point in time makes of the given legal provisions.

Analysing language patterns of SoE is crucial. When it comes to opening the performative dimension of SoE, analysing language patterns is of utmost importance. Language patterns here means the way stakeholders argue or try to persuade the political public before, during, or after an emergency. Stakeholders are political decision-makers, but their critics are inside or outside the institutions of the political system. The analysis of language patterns should aim at the arguments or justifications issued in favour or against the application of a SoE as well as at the changes and volatility of these statements. Qualitative approaches will significantly enhance the understanding of the political dimension of SoE.

Considering the temporal dimensions of SoE is important. As already implicitly stated above, the analysis of SoE must not be limited to the timeframe covering nothing but the application of SoE. Not always, but very often, the application of a SoE knows a specific historical, political, environmental, or social record. It is, therefore, crucial to consider what one may call the the pre-existing conditions of a SoE. These might help to understand why a SoE in a specific situation was applied, although the same conditions at another point in time did not lead to the suspension of fundamental rights. Also, if the SoE can transform a democratic political system into an authoritarian one, the consecutive steps towards this degradation of a political culture require close monitoring. Taken together, any analysis of SoE must consider its pre-existing conditions and outcome.

Comparison matters. One may wonder why some political systems face a severe crisis proclaim a SoE and then, after the crisis is over, return to the normal, while others do not and become authoritarian. Existing studies very often limit themselves to one single case instead of comparing various applications of SoE over time or in different countries. Future studies should commit themselves to a comparative approach. This may help to identify specific constellations, risks, institutional, or political patterns that more or less lead towards a fundamental transformation of a democratic political system during the application of a SoE.

Normalization matters. Current cases of the application of a SoE show that respecting a strict timeframe of enhanced executive capacities and suspended fundamental rights is becoming less and less common. Even more, governments for months and years refrain from ending SoE regimes. When a SoE is terminated, this goes along with the transfer of important emergency provisions into the normal legal framework. One of the most difficult and most exiting questions is: Why is this? Why does it seem to become more and more difficult for governments to just end the emergency regime? Why do they consider it necessary to have access to the enhanced capacities of crisis intervention when a SoE is not applied? How do they justify that need? And finally, if the exception becomes the new normality, what is then normality?

These six theses do not need to be—and certainly cannot—be integrated into one single study. The methodological and disciplinary perspectives they require are too diverse. But they may serve as an orientation towards a contemporary study of SoE as a government technique in a broad sense—it means that an interdisciplinary project certainly needs more and ongoing attention.

3. Has the SoE become a ‘new normality’?

This volume started with the general assumption that SoE is on everyone’s lips. The various articles we have brought together have shown that—from an interdisciplinary, scientific point of view—this diagnosis is surely true. One can clearly see an increasing number of studies on SoE within the last years. They legal studies and constitutional right via philosophy to political sciences and sociology, from history to the history of ideas. Seen from an epistemological point of view, they reach from empirical via comparative up to critical normative perspectives. For all these fields with their various approaches, analysing SoE has already become an important preoccupation.

But if we look beyond this research-centred impression beyond the academic world, what about the relevance of SoE for the political practice of contemporary democracies? Is SoE really that important? Does it endanger the rule of law or even fundamentals of democracy itself? Giving an answer to these question is not so easy.

On the one hand, SoE was, is, and will be an indispensable institutional mechanism for crisis intervention. As of now, far more than 95 per cent of established democracies worldwide know constitutional provisions or legal rules for this purpose. Seeing it pragmatically, one must admit that as long as unforeseen events with the potential to expose democratic political systems to an existential threat will occur, the executive will have no reason to give up this tool. This is because the core function of the modern state is to protect its citizens. It seems almost tautological that it can only fulfil this function if it stays intact. There, the state and the acting government must dispose of appropriate tools to protect itself and its citizens even in situations that go far beyond the legal limits of the existing constitutional or legal order and the limits established by them: necessitas non habet legem.

On the other hand, given the current practice of democratic crisis intervention before, during, and after the application of emergency regimes, one aspect needs some more consideration. This aspect points to the trigger of the SoE itself: What is a crisis? Or, to be more precise: How do we frame a crisis situation and how do we legitimize the ultimate need for suspending fundamental legal norms and/or civil rights? To this end, it seems that the role of the political public is crucial when it comes to prevention of the anti-democratic force of an emergency regime. If, as it seems to be the case for contemporary democracies,

–       the political public adopts a more and more hostile pattern;

–       the segregation of the political sphere into a plurality of filter bubbles continues;

–       the willingness to accept so-called alternative facts as a legitimate description of political, social, and economic reality;

–       the acceptance of a friend–enemy distinction or other simplification as sufficient explanation for complex problems goes on, 

then there is a strongly increased likelihood for the success of governments intending to use SoE provisions for their own interests such as the long-term enhancement of their own influence at the expense of fundamental rights and separation of powers. A continued failure of the political public will enhance the chances for those governments to successfully create an image of constant threat, which makes it possible to use extensive use of emergency provisions plausible and more and more uncontested.

Looking back to the first two decades of the 21stcentury, the use of SoE in well- established democracies has clearly become a more and more frequent practice. This was often—for example, after the 9/11 attacks in the US or after the terrorist attacks on 11/13 in Paris—for good or at least for understandable reasons. What we can also observe is that SoE is not only applied after terror attacks or turmoil, but also in other cases like environmental or climate change issues or labour disputes. As the contexts that trigger the applications of SoE vary more and more, its timeframe grows. In recent years, SoE shows a clear tendency to remain in effect for even longer periods and to be maintained (at least in some of its provisions) even after the crisis is over.Given these patterns, SoE seems to be moving away from being a tool provided in emergency situations which is reserved for exceptional use only. Instead, the restraints to use it get weaker, which makes the SoE—in the medium or perhaps in the long run—a normal instrument for governing democracies. This is the point when we should once again emphasize a question that we have already come up with: If the exception is the new normality, what is then normality?

What does state of exception mean? – A definitional and analytical approach

Introduction to: New Normality?

The introductory article first proposes a definition of the state of exception. A purely legal perspective proves to be insufficient. On the contrary, it is necessary, especially in analytical terms, to consider discursive and practical elements in order to adequately grasp the state of exception. In addition, it introduces the contributionsof this volume.

Full text is available via Springerlink an can be downloaded here.

Einleitung zu: New Normality?

Der einleitende Beitrag schlägt zunächst eine Begriffsbestimmung des Ausnahmezustandes vor. Eine rein rechtswissenschaftliche Perspektive erweist sich dabei als nicht ausreichend. Vielmehr bedarf es, gerade auch in analytischer Hinsicht, einer Ergänzung um diskursive wie praktische Elemente, um den Ausnahmezustand angemessen erfassen zu können. Zudem werden die einzelnen Beiträge des Bandes vorgestellt.

Der vollständige Text ist auf Springerlink verfügbar und kann hier eingesehen werden.

Conference: From Dictatorship to State of Exception

On October 16-17, 2017, the Collège International de Philosophie in Paris will hold a conference on „De la dictature à l’état d’exception. Institutions, droit, théories“ („From dictatorship to state of exception. Institutions, Law, Theories“). Organized by Marie Goupy (CIPh) and Yann Rivière (EHESS), the conference aims at a historical and philosophical reconstruction of the idea of exception. This will include the institutional varieties of emergency powers, as well as the language of the exception. A detailed program can be found here, online inscription is required.

The conference will be held in French.