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?